While in the United States, many aliens wish to bring their alien spouses abroad to the United States to live together. Aliens of both lawful and unlawful status get married in the United States with U.S. citizens, permanent residents, aliens with valid non-immigration status, or aliens out of status. In any case involving marriage, concern may arise surrounding immigration benefits or statuses for those couples that wish to stay together in the United States. Generally speaking, a U.S. citizen is able to confer immigration benefits to his or her alien spouse where the spouse is already in the U.S. Similarly a U.S. permanent resident may confer immigration benefits to his or her alien spouse.
A marriage must have been valid at the time and place it was performed for it to be recognized as valid by the United States. The validity of a marriage is generally determined by the law of the place where the marriage was performed or celebrated. The USCIS always takes into account the following requirements when the alien wishes to enjoy the immigration benefits from a marriage:
1. Each party to the marriage must have been legally able to marry;
2. Any prior divorces of either party must have been valid; and
3. The marriage must be legally recognized in the country in which it was performed.
Any marriage not recognized as legal or recognized by civil authorities will not be acceptable for immigration benefits. In a traditional arranged marriage, a marriage organized and decided by the families of the parties involved, those marrying may have little to no interaction or correspondence prior to the actual marriage. Although this would normally be against USCIS policies, traditional arranged marriages are exceptions to the policy due to the traditional and cultural significance of the marriage ceremony. Petitioners must emphasize the ceremony to the USCIS in order to transfer benefits to their new or soon to be spouse.
Marriage Must Not Have Been Entered Into for Immigration Purpose
Sham Marriage A “sham marriage” is one in which the parties of a marriage entered into the marriage
solely for circumventing immigration laws for the purpose of falsely acquiring immigration benefits. A sham marriage is not valid for immigration purposes. Usually, the parties of a sham marriage do not intend to enter into a bona fide marriage, reside together, or remain behaving as a true spousal relationship would. The sole purpose of the sham marriage is to enjoy immigration benefits or evade immigration restrictions. Typically, only the couple of a marriage themselves know the intention of their marriage. However, the USCIS will try to interpret the true intention of the marriage when the immigration officers are reviewing immigration petitions. The USCIS always takes into account the following factors while making their interpretation:
1. Whether the couple have known each other for a reasonably long time;
2. The frequency of meetings of the couple prior to the marriage;
3. Whether the couple have lived together in the past or presently live together;
4. Whether the couple married only after one party became the subject of an investigation, removal, or deportation proceedings by the USCIS. An immigration petition may not be approved for the alien who was married after the commencement of removal, exclusion, or deportation proceeding until the alien has resided outside the U.S. for at least two years, unless the alien spouse can prove the marriage was a good faith marriage and not solely for immigration purposes. To prove the marriage was entered into in good faith, the following evidence should be presented:
a. Document showing joint ownership of property;
b. Joint tenancy of lease;
c. Documentation showing commingling of financial resources;
d. Birth certificates of children born to the couple;
e. Affidavits of a third party proving there is a bona fide marital relationship between the couple; and
f. Other documents to prove that the purpose of the marriage is not to evade immigration laws.
6. Whether a spousal immigration petition is filed by a permanent resident who has been accorded status based on a prior marriage. This kind of immigration petition would not be approved, unless the following requirements are satisfied:
a. A period of 5 years has elapsed since the petitioning alien acquired his/her permanent resident status;
b. The petitioning alien resident presents clear and convincing evidence that the prior marriage was not entered into for purpose of evading the immigration laws; or
c. The prior marriage is terminated by the death of the spouse of the petitioning alien resident.
7. Whether the couple comes from diverse cultural background or speaks a common language.