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.
The general rule is that a marriage which is valid where it was made is valid everywhere. An exception to this rule is when a marriage valid in one place violates a fundamental belief or law of the other place.
For example, in some countries it is legal for a man to have more than one wife. In most other countries, marrying a second wife is illegal and the later marriage is not recognized. Another exception might involve a marriage between two people of the same sex. In a few countries, same sex marriages are considered to be valid but in most countries, same sex marriages are not recognized.
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 but they may be called "informal" "customary" "tribal" or by another name. Are these recognized as valid marriages for immigration purposes?
The general rule is that if the place where the marriage took place recognizes the marriage as valid, then it should be considered valid everywhere and valid for immigration purposes.
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.
Even if a common law or traditional marriage is valid, how can you prove it to the immigration department or to a Consul? It's best to have a marriage certificate. In some cases it may be a good idea to re-marry if necessary to get a marriage certificate.
What about marriages between close 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? These situations can cause problems in an immigration context. Best to get specific advice.
It is required that any previous marriages be shown to be lawfully terminated. This is usually shown by a death certificate or a divorce or annulment decree but there may be other ways. Also, a valid traditional or common law marriage must be terminated in an acceptable way...they do not end with a change of mind...
So 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 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 since work permission may not be possible.
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) or the married couple can apply for a new type of K Spouse visa to allow the spouse of a US Citizen to come to the US to complete the processing in the US even when married outside the US.
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 Fiance "K" visa. The US citizen submits a petition to the immigration department 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 had a meeting together in person within the past 2 years (except if impossible due to circumstances beyond their control).
The BCIS (Bureau of Citizenship and Immigration Services) can approve the petition and send it to the US Consul. The Consul can interview the beneficiary to be sure all is OK. 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.
This type of Fiance K visa can be issued only before the marriage to a US Citizen and only when the fiance is outside the US. The fiance of a permanent resident is not eligible to receive a fiance visa.
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 BCIS.
The petition to remove the condition is signed by both the husband and the wife. It is possible for a divorced spouse to sign the petition alone and then have the condition removed if it is proved that the marriage was genuine and not a sham.
The BCIS 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 couple 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...
© Richard Madison 2003
Last edit 11 Mar 2003