A United States Citizen can petition for their immediate relative to come and live with them in the United States. There are no quotas for this type of petition and the spouse can come to live in the United States immediately after the application is approved. The question of who is considered a spouse is important. There are three main considerations of whether there is a marriage.
First, the marriage must have been?valid at the time it was performed. Each party of a marriage must have been free to marry at the time it was performed. The party must be single and all prior divorces must have been valid and recognized. The marriage ceremony must have been recognized as legal in the place where it was performed. With the exception of marriages between close family members or where one of the parties is considered too young, it does not have to be legal at the place of domicile. With the legalization of same-sex marriages in multiple states and countries, petitions by homosexual couples are accepted by U.S. immigration.
Second, the marriage must still be in existence at the time the immigration benefit is conferred or during the period that the principle foreign national is in the United States under a non-immigrant visa. The marriage does not have to be ?viable.? The couple can be separated or longer living in the same home but it must not have been legally terminated. In some states, a legal separation agreement would constitute the termination of the marriage. However, a marriage where the couple is not residing together may bring questions about the bona fides of the marriage.
Third, the marriage must not be a marriage of convenience or entered into for immigration purposes. The intention of the marriage should be based on good faith in accordance with the laws of the place where the marriage was performed. No fee or consideration should have been given to either party as a precursor to filing a petition for an immigration benefit. The level of scrutiny by U.S. immigration will depend on the length of marriage, the current living situation of the couple, the cultural background of the parties, and the development of their relationship prior to marriage.
The penalties for marriage fraud is severe. An immigrant found to have committed marriage fraud will be removed from the United States and essentially black listed from ever entering the United States again. The U.S. petitioner faces the possibility of imprisonment for up to five years and a $250,000 fine. The most severe penalties are for parties who have engaged in a criminal conspiracy to arrange fraudulent marriages.
For applicants who have been married to the petitioning United States Citizen for over two years, they will be entering under the IR-1 category which means that they will receive a 10 year permanent residency card upon entering the United States. If they have been married for less than 2 years, the applicant will receive the status of conditional permanent resident (CR-1). The applicant and the petitioner will have to provide evidence of their continued marriage prior to the second year of the applicant?s entry into the United States.