Sponsorship by
U.S. Citizen Spouse

Marriage-based Visas

Usually, an alien with a permanent resident status or a US Citizen is able to confer immigration benefits to his or her alien spouse.

What is considered a ‘married’ status?

Since aliens coming from various countries into the United States belong to various communities and are the subjects of Marriage Laws of their own countries, the US Federal laws recognize only the validity of aliens’ marriages as legal unions. Usually, couples who have entered into marriage legally in their own country are considered legally married by the United States.

What is considered as ‘spousal relationship’?

The United States Citizenship and Immigration Services (USCIS) considers the following factors in determining the spousal relationship as the basis for immigration petition –
 

  • The marriage must be lawful and valid at the time it was performed (in alien’s country or in the US);
  • The marriage must be in existence at the time of applying for the petition;
  • The purpose of marriage should not be for the purpose of acquiring or conferring permanent resident status.

Valid marriage as per USCIS

There are three factors that the USCIS considers valid for proving the marriage to be legal in order to get immigration benefits (for the spouse of an alien green card holder):

 

  • Both parties into the marriage must have been able to marry legally;
  • In case of divorce of either party from any previous marriage, the divorce must have been legally granted to the concerned party;
  • The marriage should have a legal status in the country where it was performed.

Invalid/unacceptable marriage as per the USCIS

The following conditions are unacceptable in the eyes of the USCIS for acceptance as marriage –
 

  • Customary marriage
    Marriages performed through local customs and not as per the legal rules of the local civic administration are not considered valid in the US for immigration petitions. However, if such a local customary marriage is also recognized legally by the local authorities, then it is considered valid.
  • Common law marriage
    A common law marriage is also not accepted unless the same law is also legally recognized at the place where the marriage was performed.
  • Polygamous marriage
    When an already married alien enters into another marriage, the second marriage is not considered valid. If the spouse from a previous marriage of the alien has enjoyed the immigration benefits and the benefits had been already conferred to him/her.
  • Proxy marriage
    A marriage where either of the marrying parties was not physically present is considered proxy and is never valid in the United States for immigration purposes. Mail order marriages are considered provided that the couple have met at least once within the 2 years of applying for a fiancé visa (K-1 petition).
  • Incestuous marriage
    Marriage between close family members is considered incestuous in the United States. However, the validity of such a marriage depends upon the American state where the couple intends to reside while in the United States.

Visa petition for alien spouse

Eligibility

A person living in the United States is allowed to bring his/her spouse into the United States to live as a permanent resident if he/she (the person) is either a US Citizen or a green card holder himself/herself.

The process of bringing your spouse to the United States

[A] US Citizen (petitioning for his/her spouse)

You are a US Citizen, and you wish to bring your spouse into the United States –

 

If your spouse is inside the United States (through lawful admission/parole)

If your spouse is outside the United States

You need to –

         File Form I-130

         Petition for Alien Relative

         Form I-485,

         Application to Register Permanent Residence or to Adjust Status at the same time.

You need to –

         File Form I-130

         Petition for Alien Relative.

Please note: When the USCIS approves Form I-130, the form will be sent for consular processing. Then, the consulate or embassy will provide notification and processing information.

 

[B] Alien green-card holder (permanent resident petitioning for his/her spouse)

If your spouse is inside the United States (through lawful admission/parole)

If your spouse is outside the United States

         You need to file Form I-130.

         You will be given a visa number. Then you need to apply to adjust status to permanent residency using Form I-485.

 

IMPORTANT CONDITION: Unless your spouse had an immigrant, visa petition or labor certification pending prior to April 30, 2001, the spouse must have continuously maintained lawful status in the US for becoming eligible for adjusting status.

You need to –

         File Form I-130.

         Once Form I-130 is approved, the same procedure will happen as in the case of the spouse of a US citizen as stated above.

Documents needed

The alien petitioner applying for visa for his/her spouse, must submit the following documents –

  • Form I-130 (signed with required fee)
  • And the following documents –
    • A copy of your civil marriage certificate.
    • Passport style photos of your spouse and yourself (the alien).
    • Proof of all legal name changes for you and/or your spouse (such as marriage certificates, court judgment of name change, divorce decrees, adoption decrees etc.)
    • A copy of all divorce decrees, death certificates, or annulment decrees showing that all previous marriages entered into by your spouse and/or you were terminated.

You also need the following documents, depending on your status –

 

If you are a U.S. citizen, you must produce-

If you are a green card holder (permanent resident), you must produce –

         A copy of your valid U.S. passport OR

         A copy of your certificate of citizenship, or

         A copy of your naturalization certificate, or

         A copy of your U.S. birth certificate, or

         A copy of Consular Report of Birth Abroad.

         A copy (front and back) of Form I-551 (green card), or

         A copy of your foreign passport with a stamp showing temporary evidence of permanent residence.

 

 

Conditional residence of spouse

If you (US citizen or green card holder) and your spouse have been married for 2 years and when your spouse is granted the status of permanent resident (PR), your spouse will initially get the PR status on a conditional basis. You can check the status of your petition on My Case Status page of the USCIS website.

Removing conditions

If you wish to remove the conditions on residence, you and your spouse need to apply together using Form I-751, Petition to Remove the Conditions of Residence.

IMPORTANT: For this purpose, Form I-90 (Application to Replace Permanent Resident Card) is not used.

You need to apply for the removal of conditional status within the 90-day period before the expiration date on the conditional resident card. In case you fail to file during this time, your spouse’s resident status will be terminated and he or she may be subject to removal from the United States.