The alien spouse of a U.S. citizen is considered an “immediate relative” for immigration purposes. This means that a visa number is immediately available and the alien spouse who is already in the U.S. may adjust status right away. The alien spouse who is living outside the U.S. will have to apply for an immigrant visa at a U.S. consulate abroad.
The process of sponsoring a spouse for a green card is initiated by filing Form I-130 petition with the USCIS. A lawful permanent resident (LPR) may also petition his alien spouse for lawful permanent residence. However, since the petition falls under the second family preference (F2A) category, which is subject to numerical limit, there is a wait period.
To be eligible for immigration benefit, the alien must be legally married to the U.S. citizen or LPR. Common-law spouses may also benefit depending on the laws of the country where the common-law marriage takes place. Moreover, same-sex spouses of U.S. citizens and LPRs are eligible for the same immigration benefits as opposite-sex spouses.
To establish the relationship, the Form I-130 must be accompanied with a copy of the marriage certificate and all divorce decrees, death certificates and decrees that demonstrate that all prior marriages were terminated. An affidavit of support made on Form I-864 must also be submitted along with supporting documents to show that the beneficiary will not become a public charge.
The marriage must be bona fide. The parties must have entered into the marriage with the intent of establishing a life together as husband and wife. If the USCIS finds that the marriage was entered into solely for immigration benefits, the marriage is considered fraudulent and will not be recognized for immigration purposes.
Also, Section 204(c) of the Immigration and Nationality Act (INA) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or LPR and the prior marriage was found to be a sham.
In a recent case, the Board of Immigration Appeals (BIA) set aside the decision of the Field Office Director of the USCIS revoking the approval of a visa petition on the ground of prior marriage fraud.
In that case, the BIA stressed that visa petitions on behalf of aliens who have attempted or conspired to enter into marriage solely for the purpose of evading immigration laws cannot be approved. However, substantial and probative evidence of the attempt or conspiracy must be found in the alien’s file.
The court cited instances where there can be a finding of marriage fraud. One is where the former spouse admitted that he colluded to evade the immigration laws. Another is where the former spouse received monetary compensation for marrying the alien spouse. Lastly, where there was no cohabitation since marriage and the spouses never held out themselves as husband and wife.
The court pointed out that in this case the marriage of the beneficiary and her former husband lasted for four years, from 2002 to 2006. The discrepancies during the interview and failure to respond to the Notice of Intent to Deny were due to the ex-spouse being emotionally unstable and depressed.
Evidence of good faith marriage on record included bank statements and photographs. There was also no evidence that payment was made or that the marriage was never consummated. In addition, there was no statement on record that the marriage was fraudulent.
The BIA therefore ruled that absent substantial and probative evidence of prior marriage fraud, it sustained the appeal and ordered the continued processing of the visa petition.