The definition of who qualifies as a "spouse" is a very important issue involved in qualifying applicants as “family members” for the purpose of eligibility for issuance of an immigrant visa. The primary issue is whether the underlying marriage upon which the claimed marital relationship is based is valid, including the validity of any prior divorces by either spouse, if any. The basic rules governing this are as follows:
That a marriage must be legally valid at its inception, and that the marriage must not have be entered into for the purpose of evading U.S. immigration laws, such as a fraudulent or “sham” marriage.
Therefore, the foreign spouse and the U.S. citizen or permanent resident must be parties to a legally valid marriage. In making a determination as to the validity of the marriage, it is the law of the place where the marriage occurs that governs. If it is valid where contracted, then it will be recognized in other jurisdictions.
Exceptions to this rule is where the marriage is deemed to be against public policy under U.S. social practices eg. a polygamous marriage or one between close relatives, where the parties to the marriage
Were not physically present at the marriage ceremony in the presence of each other, and the marriage was not consummated, and where the parties were not legally divorced from their previous spouses.
The test for making the determination as to whether a marriage was fraudulent at its inception is if the bride and groom did not intend to establish a life together at the time they were married.
Assuming that the marriage is valid, the parties begin the process by filing Forms I-130, I-485 and I-765 with the U.S.C.I.S, along with copies of supporting documents - marriage certificate (religious documents are not acceptable), divorce judgments if ant, birth certificates, Affidavit of Support, tax returns etc. If the foreign spouse resides outside the U.S., then only Form I-130 is initially filed, along with copies of the marriage certificate and proof of the sponsor’s U.S. citizenship.
Once the marriage is contracted, US. immigration law will consider the foreign spouse to be an immediate relative, not subject to the lengthy waits that other relatives must endure under the family preference categories before green cards are issued.However, if the sponsor spouse is a green card holder, then the wait period can be up to five years, and a "priority date" is issued.
Immediate relatives are normally allowed to process their cases at U.S.C.I.S. offices throughout the U.S., even if the foreign spouse has overstayed his or her tourist visa. The difference between overstaying a tourist visa and entering the country are vast. Overstaying, popularly known as “visa fraud” is an offense which is overlooked for immediate relative cases. Immediate relatives who have previously overstayed visas and worked illegally in the U.S. are still allowed to attend their marriage interviews and have their green card cases processed in the U.S. Those who entered the U.S. illegally must return to a U.S. embassy for an interview, and may be subject to a 1-10year bar on re-entry. The old Section 245(i) provision where a foreign spouse in this situation could remain in the U.S. by paying a fine of $1,000.00 no longer applies.
The green card based upon marriage to a U.S. citizen or legal permanent resident is issued after the successful completion of a marriage interview conducted by a U.S.C.I.S. official. At the interview, the spouses must prove that the marriage is a valid one not entered into for the purpose of acquiring a green card. To this end, they must submit items such as photographs, bank statements, tax returns, utility bills etc. Which would prove that the marriage is indeed a love match. If the marriage is less than two years old at the time of the interview, a conditional green card valid for two years will be issued to the foreign spouse. The parties must apply for the permanent green card within 90 days of the expiration date of the original conditional card, and submit proof that the marriage is still valid and subsisting. If the marriage is over two years old at the time of the interview, the foreign spouse will not have to wait through a two year conditional residency on his or her green card before it becomes permanent. The two year residency requirement was mandated by the Marriage Fraud Act, which attempts to curtail the number of marriages entered into solely for the purpose of obtaining a green card.
Once the green card is issued, the recipient can apply for U.S. citizenship after two years and nine months from obtaining the green card. This is a privilege given to spouses of U.S. citizens only, the normal waiting period to apply for U.S. citizenship is five years.