By Daniela A. Hoegerle

Is my spouse eligible?

A spouse, for immigration purposes, is a legally wedded husband or wife. Mere cohabitation does not qualify as marriage for immigration. Common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs. 

In order for a common law marriage to be valid for immigration purposes, the parties must live in that jurisdiction, and the parties must meet the qualifications for common law marriage for that jurisdiction.

When there is no marriage certificate, official verification, or a legal brief verifying full marital rights, a common law marriage or cohabitation is a “valid marriage” for purposes of immigration only if it is legally recognized in the place in which the relationship was created and is fully equivalent in every respect to a traditional marriage. To be “fully equivalent,” the relationship must bestow all the same legal rights and duties possessed by partners in a lawfully contracted marriage, including that:

• The relationship can only be terminated by divorce or death;
• There is a potential right to alimony;
• There is a right to intestate distribution of an estate; and
• There is a right of custody if there are children.

Marriages in the below circumstances are not recognized for immigration purposes, even if legally valid in the place of celebration:

• Polygamous marriages;
• Certain marriages that violate the strong public policy of the state of residence of the couple;
• Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration;
• Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated; or
• Relationships entered into for purposes of evading immigration laws of the United States.

In cases of polygamy, only the first spouse may qualify as a spouse for immigration.

How do I help my spouse become a permanent resident?

Bringing a spouse to live in the United States can be a long process. This process can vary depending on whether the petitioner is a U.S. citizen or U.S. lawful permanent resident (LPR). All U.S. citizen and LPR petitioners must fill out and submit a Form I-130, Petition for Alien Relative, to USCIS. 

If the petitioner is a U.S. citizen, and the beneficiary spouse is already in the United States through lawful admission or parole, then the beneficiary spouse may also fill out Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time as the Form I-130. If the petitioner is a U.S. LPR, and the beneficiary spouse is already in the U.S. through lawful admission or parole, then the beneficiary spouse may apply to adjust status to permanent residency only after a visa number becomes available. Spouses of LPRs and U.S. citizens do not need to maintain non-immigrant status in order to be able to file a Form I-485.

If the petitioner is now a U.S. citizen, he or she must file separate immigrant visa petitions for each of his or children. A child does not receive derivative status in an immediate relative (IR) petition. A child is not included as a derivative in his or her parent's IR petition.

If the petitioner has been married for less than two years when his or her foreign citizen spouse enters the U.S. on an immigrant visa, his or her permanent resident status is considered “conditional.” The immigrant visa is a conditional resident (CR) visa, not an immediate relative (IR) visa. The petitioner and foreign citizen spouse must apply together to USCIS with the Form I-751 to remove the conditional status within the ninety days before the two-year anniversary of the spouse's entry into the U.S. on his or her immigrant visa. The two-year anniversary date of entry is the date of expiration on the alien registration card (green card). This also applies for individuals who are granted adjustment of status and are married for less than two years. 

Required documentation

In order to petition for the foreign spouse who is already in the U.S., the petitioner must submit:

• Form I-130, Petition for Alien Relative (signed with proper fee), with all required documentation, including:
  • A copy of the civil marriage certificate
  • A copy of all divorce decrees, death certificates, or annulment decrees that demonstrate that all previous marriages entered into by the couple were terminated
  • Passport-style photos of the petitioner and spouse
  • Evidence of all legal name changes for the petitioner and/or spouse
  • Passport(s)
  • Affidavit of Support (typically Form I-864) from the petitioner/U.S. sponsor
  • Completed Medical Examination Forms
• If the petitioner is a U.S. citizen, he or she must demonstrate his or her status with:
  • A copy of his or her valid U.S. passport OR
  • A copy of his or her U.S. birth certificate OR
  • A copy of Consular Report of Birth Abroad OR
  • A copy of his or her naturalization certificate OR
  • A copy of his or her certificate of citizenship
• If the petitioner is a lawful permanent resident, he or she must demonstrate his or her status with:
  • A copy (front and back) of Form I-551 (Green Card) OR
  • A copy of his or her foreign passport bearing a stamp showing temporary evidence of permanent residence.

There is no minimum age for a U.S. sponsor (petitioner) to file a petition for a spouse. However, the sponsor must be at least eighteen (18) years of age and have a residence (domicile) in the U.S. before he or she can sign the Affidavit of Support. This form is required for an immigrant visa for a spouse and other relatives of U.S. sponsors.

U.S. sponsors/petitioners are required to maintain their principal residence (domicile) in the U.S., which is where they plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions.

Contact the Law Offices of James D. Eiss today to schedule a consultation regarding petitioning for a foreign citizen spouse.