  | A BRIEF LOOK AT MARRIAGE AND IMMIGRATION
Marriage and Immigration
Let's talk about how US immigration law treats husbands and wives. Information about family immigration sponsorship by a US Citizen is at Immigration and the Family, Part 1 and sponsorship by a Permanent Resident is at Immigration and the Family, Part 2 While we mentioned husbands and wives there, here we'll go into a little more detail.
Who is a spouse
Why talk about who is a Spouse since we all know if a person has a husband or wife...or do we? US Immigration law is a little particular about who it considers to be a spouse. It's also good to remember that the actual truth (facts) may not be enough in immigration matters, only facts that can be proven are important.
Proof of a valid marriage
An immigration petition must be accompanied by proof that the beneficiary spouse is the legal husband or wife of the sponsor. This can be shown by a marriage certificate and proof of the termination of any previous marriages. If a particular culture or place does not have a marriage certificate available, substitute proof can be used.
Common law or Informal marriage
Certain places allow a marriage to be made by two people without formal registry, without witnesses or family, and sometimes without a civil or religious official present to sanctify or ratify the marriage. In the US these are often called common law marriages because they originated in the English common law tradition. They are sometimes called "informal" "customary" or "tribal" marriages. Are these recognized as a "valid marriage" for immigration purposes?
The general rule is that a marriage considered valid where the marriage took place, is considered valid everywhere and valid for US immigration purposes.
As an example of Common Law marriage in the US, the State of Pennsylvania recognizes a common law marriage made in its territory...but in the State of Florida beginning a few years ago, a common law marriage can no longer be made. Florida still recognizes common law marriages made elsewhere and also recognizes those made in Florida before the cut-off date. If a person claims to have made a common law marriage in Florida recently, it would not be valid for immigration purposes. Each state of the US has its rules about common law marriages but the general rule still holds that if a common law marriage is valid in the state it was made, it will be valid for US immigration purposes.
The problem is that most common law and traditional marriages while valid are not recorded. It is difficult to prove that a valid common law marriage exists if there are no formal registration documents. The US Immigration Service and a US Consul may refuse to recognize a valid traditional marriage because of the lack of proof. It's easier to prove a marriage if you have a marriage certificate. It may be a good idea to re-marry in a formal civil or religious ceremony to obtain a marriage certificate.
What about marriages between cousins, uncle and niece, or other relatives? Between people of the same sex? How about proxy marriages where the bride and groom are not in each other's presence when being married? What about polygamy? What about marriages between very young people? Same sex marriages are NOT recognized for US immigration benefits. The other examples mentioned can cause problems in an immigration context. Best to get specific legal advice.
It is required that any previous marriages be shown to be lawfully terminated. This is usually with a death certificate or a divorce or annulment decree but there may be other ways. Also, a previous valid traditional or common law marriage must be terminated in an formal acceptable way...they do not end with a change of mind.
As you can see, the question of who is validly married for immigration purposes is sometimes not as simple as it seems.
Is it best to marry in the US or overseas?
This is a question asked fairly often...the answer depends on individual circumstances.
Marriage in the US
If the spouse is already in the US, entered the US legally, and is marrying a US Citizen, then an adjustment of status may be possible and the beneficiary may be allowed to remain until approval of the case.
If the sponsor is a Permanent Resident, then the wait until a green card can be issued is measured in years and the spouse may decide not to stay in the US. Work permission may not be possible. If the spouse stays too long, they may be unable to get a green card in the US or overseas because of bars to re-entry for people who have been out of status for over 6 months. This kind of situation may need individual legal advice. Also the situation can change if the sponsor spouse becomes a US citizen.
Marriage outside the US
What if a person marries a US citizen or a permanent resident outside the US then wants to come to the US? If the marriage is known to the US Consul, it is not likely that a visitor visa will be issued since the spouse is usually considered to be an intending immigrant (plans to live permanently in the US) and is not entitled to a non-immigrant visitor visa.
The US Consul would expect the spouse to wait outside the US until the petition was approved and the immigrant visa could be issued (several months for a US Citizen's spouse, a few years for a permanent resident's spouse.)
If a person who is married to a US citizen or permanent resident attempts to enter the US with a visa waiver, or a visitor, student, or other non-immigrant visa and the marriage becomes known to the airport inspector, the person may be immediately removed from the US and can be barred from future entry for several years.
Fiancee Visa
A US citizen can apply for a visa to allow his or her fiancee to come to the US to marry the citizen. This is a "K" visa. The US citizen submits a petition to the Immigration Service with proof that he/she intends to marry the beneficiary, that they are able to be married, that the petitioner is a US Citizen, that the couple has met each other in person within the past 2 years (except if impossible due to circumstances beyond their control). An attorney may be helpful in a "K" visa application since the Immigration Service and consuls may have doubts about the couple's marriage plans.
The Immigration Service can approve the petition and send it to the US Consul. The Consul will interview the beneficiary to be make sure that the plan to be married is genuine. The fiancee enters the US and marries the citizen within 90 days. Then the new spouse can apply to change the K visa to a green card while in the US.
A K visa can be issued only to the fiance of a US Citizen when the fiance is outside the US. The fiance of a permanent resident is not eligible to receive a fiance visa.
Conditional Residence
When a person receives a green card based on a marriage that is less than 2 years old when the person becomes a permanent resident, then the resident status is Conditional for two years. At the end of the two years, the resident status expires unless a petition to remove the condition is approved by the Immigration Service.
The petition to remove the condition is signed by both the husband and the wife. A divorced spouse can sign the petition alone and apply to have the condition removed if it is proved that the marriage was genuine and not a sham.
The Immigration Service will consider a petition which is signed by the conditional resident alone only if the marriage has ended (usually by divorce)...in other words, a separated spouse cannot have the condition removed unless both sign the petition or they end the marriage.
There are special rules for battered and abused spouses, for political asylum cases, for widows of US citizens, and other rules which are beyond the scope of this basic introduction.
This is a very brief introduction to a complex subject. This general introduction is not intended to apply to any specific situation. They say there are exceptions to every rule...
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