Getting marrying with U.S. citizens or U.S. permanent residents is able to confer immigration benefits to their alien spouses. Applying for naturalization through marriage is one of the fastest and convenient ways to immigrate to the United States because there is no statutory numerical limit and priority date.

Validity of Marriage

The marriage for naturalization can be abused because the spouses of US citizens or U.S. permanent residents hold special status according to the immigration law. The U.S. Congress particularly formulated and passed the Immigration Marriage Fraud Act, in order to prevent the fraud in the marriage for naturalization. Therefore, the validity of a marriage is the precondition of marriage for immigration purpose.

Ÿ   Valid Marriage in the U.S. or Foreign Countries

In general, the validity of a marriage is generally determined by the law of the place where the marriage was performed or celebrated. Laws of the U.S. federal immigration recognize the validity of a marriage if the marriage was valid under the law of the state or country in which the marriage is performed or celebrated. USCIS always takes into account the following requirements when the alien wishes to enjoy the immigration benefits from the marriage for naturalization:

1.       Each party to the marriage must have been legally able to marry;

2.       Any prior divorces of either party must have been valid;

3.       The marriage must be legally recognized in the country in which it was performed;

4.       The marriage must still be continuous.

Continuous marriage does not require that the couple live together or share a household, but the couple must not have legally terminated the marriage. However, in the states where a legal separation automatically results in a divorce, it is likely that the marriage no longer exists.

USCIS does not recognize the following relationships as marriages, even if it is valid in the place of celebration:

1.      Common Law Marriage

A common law marriage will not be accepted for immigration purposes unless it is recognized as legal in the jurisdiction of residence or last residence.

2.       Customary Marriage

A marriage not performed according to legal proceedings of local civil authorities, but rather, according to local custom, may not be accepted. However, if a customary marriage is recognized by the civil authorities in the place where the marriage was performed, it is considered valid marriage for immigration purposes.

3.       Polygamous Marriage

Polygamous marriage is never recognized as a valid marriage. Please note, however, that family members of the first marriage of a polygamous family may enjoy their immigration benefits if the benefits have already been conferred.

4.       Incestuous Marriage

Incestuous marriage is a marriage between close family members. The validity of incestuous marriage depends on the law of the state where the parties intend to reside. In the state where the incestuous marriage is regarded as a crime, the incestuous marriage is not accepted for immigration purposes, even if this marriage was legally contracted somewhere else.

5.       Proxy Marriage

A proxy marriage is a marriage where the parties were not physically present during the marriage ceremony. In general, USCIS will not consider a marriage valid unless both people were present at the marriage ceremony or the marriage was subsequently consummated. However, a party of an unconsummated proxy marriage may enjoy immigration benefits as a fiancé, such as applying for a K-1 visa, if the opposite party is a U.S. citizen.

Ÿ   Validity of marriage between two persons of the same-sex

On June 26, 2013, the U.S. Supreme Court declared that the federal Defense of Marriage Act (DOMA) was unconstitutional, and recognizing the validity of same-sex marriage. Therefore, in cases of marriage between persons of the same sex, officers will review the laws of the jurisdiction in which the marriage took place to determine if the jurisdiction recognizes same-sex marriages and the marriage otherwise is legally valid. If the same-sex couple now resides in a jurisdiction different from the one in which they celebrated their marriage, and that jurisdiction does not recognize same-sex marriages, the officer will look to the law of the state where the marriage was celebrated in order to determine the validity of the marriage. The domicile state’s laws and policies on same-sex marriages will not affect whether USCIS will recognize a marriage as valid.  

Ÿ   Validity of marriages in case involving transgender persons

USCIS accepts the validity of a marriage in cases involving transgender persons if the state or local jurisdiction in which the marriage took place recognizes the marriage as a valid marriage, subject to the exceptions described above.

The validity of Foreign Divorces and Subsequent Remarriages

The validity of a divorce abroad depends on the interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried. If the divorce is not final under the foreign law, remarriage to a U.S. citizen is not valid for immigration purposes.

An officer should ensure that the court issuing the divorce had jurisdiction to do so. Foreign divorce laws may allow for a final decree even when the applicants are not residing in the country. Some states, however, do not recognize these foreign divorces and do not provide reciprocity. The applicant and his or her former spouse’s place of domicile at the time of the divorce is important in determining whether the court had jurisdiction.

Evidence

The burden is on the applicant to establish that he or she is in a valid marriage with his or her U.S. citizen spouse for the required period of time. A spouse of a U.S. citizen must submit with the naturalization application an official civil record to establish that the marriage is legal and valid. If an official civil record cannot be produced, secondary evidence may be accepted on a case-by-case basis. An officer has the right to request an original record if there is doubt as to the authenticity of the record.  

Immigration Petition for an Alien Spouse of a U.S. Citizen or Permanent Resident

Immigration Petition for an Alien Spouse of a U.S Citizen

The spouse of a U.S. citizen is regarded as an "immediate relative" of the U.S. citizen for immigration purposes. The procedure for the immigration petition for the spouse of a U.S. citizen is:

1. In the first scenario, the alien spouse is already in the U.S. under a non-immigrant status.

In this case, the U.S. citizen may file an immigration petition (I-130) and the alien spouse may file an application to adjust his or her status to permanent resident (I-485) at the same time. If you need to get married abroad, an applicant (a citizen) needs to apply for a K-3 visa for your spouse. It should be noted that all necessary applications material must be completed in the United States. After that, USCIS will mail all application materials to the address of the applicant's spouse's country. After receiving the materials, you can appoint visa interview in the local embassy.

2. The second scenario is when the alien spouse is outside the U.S.

In this case, the U.S. citizen needs to file an immigration petition and request that the USCIS notify a U.S. Consulate in the country where his spouse lives. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends a "Packet 3" to the U.S. citizen. After the necessary forms are completed, the alien spouse goes to the U.S. Consulate abroad to apply for an immigrant visa. On the day that the alien spouse enters the United States on an immigrant visa, he or she becomes a U.S. permanent resident.

Immigration Petition for an Alien Spouse of a U.S. Permanent Resident

A U.S. permanent resident may petition for his or her alien spouse to receive immigration benefits. The alien spouse of a U.S permanent resident is categorized as a beneficiary of Second Preference (2A) under the family-based immigration and is therefore subject to visa backlogs. The procedure for this immigration petition is:

1.        In the first scenario, the alien spouse is already in the U.S. under a non-immigrant status.

In this case, the permanent resident may file an immigration petition (I-130) for the alien spouse. The alien spouse has to wait for the immigrant visa number to become current before he or she may apply to adjust to permanent resident (I-485) status. During this waiting period, the alien spouse needs to independently maintain a valid non-immigrant status.

2.        The second scenario is when the alien spouse is outside the U.S.

In this case, the U.S. permanent resident needs to file an immigration petition and request that the USCIS notify a U.S. Consulate in the country where the alien spouse lives. Once the immigration petition is approved, the National Visa Center of the U.S. State Department sends a "Packet 3" to the U.S. citizen. After the necessary forms are completed, the alien spouse goes to the U.S. Consulate abroad to apply for an immigrant visa. On the day that he or she enters the U.S. on an immigrant visa, he or she becomes a U.S. permanent resident.

Application Materials for Marriage for Naturalization

1.         Two-inch passport photos: 2 copies of U.S. citizen or permanent resident, 8 copies of the beneficiary (naturalization applicant).

2.         The first-page copy of U.S. citizen or permanent resident’ passport, Certificate of Naturalization, Certificate of Birth.

3.         The notarized Certificate of Birth of beneficiary.

4.         A copy of the visa page and entry seal page of beneficiary's passport.

5.         A copy of the passport of the economic sponsor, tax returns and W2s in the last three years.

6.         Medical Examination Report is issued by the medical doctor authorized by USCIS. The envelope is sealed and can not be opened.

7.         Marriage Certificate, and the notarization of a marriage certificate.

8.         The notarization of Divorce Certificate (if married previously).

9.         Family photos, wedding photos, couple photos.

10.      A joint bank account, a bill of electricity, an insurance policy, a rent contract or a property under both parties names.

Financial Security Standard of Marriage of Naturalization

US citizens or permanent residents must provide financial security when applying for green cards for their spouses and fill in Form I-864. The purpose of a financial security is to ensure that the alien spouse will not become a public charge for any reason, such as receiving or enjoying unemployment benefits, grants or other welfare benefits from federal, state or local governments. The guarantor's financial security must meet the 125% federal poverty level as announced by USCIS in I-864P. In general, we suggest that the financial security of financial guarantor have met at least 150% federal poverty level to increase their chances of approval. So, what are the federal poverty level and specific provisions?

The federal poverty level states that the financial security is calculated as the sum of the family number of the U.S. guarantor plus the number of beneficiaries. The financial security poverty level is adjusted every year subject to the inflation and other factors. The 150% poverty level currently used which is published in 2017 has increased compared with the standards of the 150% poverty level in 2016. Specific criteria of the federal poverty level are as follows:

The standard for 2 persons in 2017 is $ 24,360 and the standard in 2016 is $ 24,030, with an increase of $ 330.
The standard for 3 persons in 2017 is $ 30,630 and the standard in 2016 is $ 30,240, with an increase of $ 390.
The standard for 4 persons in 2017 is $ 36,900 and the standard in 2016 is $ 36,450, with an increase of $ 450.
The standard for 5 people in 2017 is $ 43,170 and the standard in 2016 is $ 42,660, with an increase of $ 510;
The standard for 6 people in 2017 is $ 49,440; the standard in 2016 is $ 48,870, with an increase of $ 570;
The standard for 7 people in 2017 is $ 55,710; the standard in 2016 is $ 55,095, with an increase of $ 615;
The standard for 8 people in 2017 is $ 61,980 and the standard in 2016 is $ 61,335, with an increase of $ 645.

For example, if a U.S. guarantor is a single father with a teenage son, and Chinese beneficiary is a single mother with a teenage daughter, the guarantor's annual income shall reach the standard for 4 people, i.e., the lowest revenue of the U.S. guarantor in 2017 should be $ 36,900.

In general, U.S. guarantor's working income is used as a financial security by providing recent federal tax returns, W-2 payroll, letter of employment from employers, and the payroll for the last three months. However, real estates and bank deposits can also be used as economic guaranty if the guarantor does not have a job. But the source of funding is not acceptable, particularly by USCIS. Fixed assets, such as real estates, shall be available after they are evaluated by the assessment agency. It is generally necessary to produce a certificate of bank deposit for more than half a year.

In the case that the guarantor's economic capacity fails to meet the guarantee conditions, the guarantor needs to guarantee for the beneficiary along with the co-guarantors. Co-guarantors can be relatives or friends of guarantor as long as the person is U.S citizen or U.S. permanent resident. If the co-guarantors are employed in a company, proof of co-guarantors’ identities, such as a copy of US passport or green card, is required in addition to the latest federal tax return, W-2 payroll, employer's proof of employment, and payroll for the last three months. In addition, it is advisable for co-guarantors to be friends and relatives with the U.S. guarantor or beneficiary because USCIS has been more stringent on the review of the co-guarantors. Otherwise,  USCIS may question the credibility of the economic security, resulting in RFE (Request for Evidence) or refusal. So, if co- guarantors are the friends and relatives of guarantors, it is the best to provide additional proof, such as personal statements, photo with guarantors, etc.

Fraud Marriage and Investigation by USCIS

As mentioned above, marriage for naturalization is easily abused. As estimated by USCIS, about 1/5 to 1/3 of the cases of marriage for naturalization is fraud. In order to prevent those applications from obtaining the American identity, USCIS has the discretion to suspect and subsequently investigate a suspect marriage that may bring immigration benefits to an alien.

A “fraud marriage” is one in which the parties of a marriage entered into the marriage solely for circumventing immigration laws and unlawfully obtaining immigration benefits. A fraud marriage is not valid for immigration purposes.

Typically, only the couple of a marriage themselves know the intention of their marriage. However, USCIS has the discretion to investigate and interpret the true intention of marriage when the immigration officers are reviewing immigration petitions. USCIS always takes into account the following factors while making their interpretation:

Ÿ   Whether the couple have known each other for a reasonably long time;

Ÿ   The frequency of meetings of the couple prior to the marriage;

Ÿ   Whether the couple have lived together in the past or presently live together;

Ÿ   Mutual familiarity with couple's situation;

Ÿ   Whether the couple own property jointly, a joint bank account and insurance policy (medical insurance, life insurance, car insurance, etc) under both parties names;

Ÿ   Whether the couple show in the social media in the name of a couple;

Ÿ   Whether the couple is the same in the cultural backgrounds and language;

Ÿ   Whether either party just divorced and immediately married;

Ÿ   Whether the couple married only after one party became the subject of an investigation, removal, or deportation proceedings by USCIS.
An immigration petition may not be approved for the alien who was married after the commencement of removal, exclusion, or deportation proceeding until the alien has resided outside the U.S. for at least two years, unless the alien spouse can prove the marriage was in good faith and not solely for immigration purposes.

The true intention of the marriage is not an absolute way to acquire immigration benefits. A person may be qualified for naturalization if the marriage is a sham marriage rather than a valid marriage. Therefore, preserving and providing the evidence of living together as a couple is important for the naturalization applications in future.