A visa is an immigration document which temporarily allows a person to enter into the United States, and remain for a set amount of time. The visa holder may travel to a port of entry, airport, or land border. An immigrant visa may also be referred to as a green card, and is issued to those who wish to permanently live in the United States. A nonimmigrant visa is for those who have a permanent residence outside of the United States, but will be staying temporarily for tourism, business, etc.
The term marriage immigration refers to when a noncitizen marries an American citizen, who lives in the United States. If the spouse who is not an American citizen wishes to obtain a visa in order to live and work permanently in the United States, they may apply to enter into the country on a spouse visa, also referred to as a marriage visa. This is one type of family-based immigration.
Marriage immigration is an absolutely legal and acceptable way to obtain a visa. The applicant must meet eligibility requirements, which are further discussed below. Additionally, applicants cannot participate in certain actions which would be considered marriage fraud. Those who are found to have participated in marriage fraud may have their immigration status deemed as illegal.
What Are the Eligibility Requirements for Legal Marriage Immigration?
As briefly mentioned, there are certain eligibility requirements under immigrant marriage laws that must be met. Because marriage immigration is a type of family immigration, many of the requirements are the same. At least two family members are required for the application, a petitioner and a beneficiary. The petitioner must be either a U.S. citizen or lawful permanent resident, while the beneficiary must be a foreign family member who is neither.
Additionally, there are two categories of family members who are considered to be qualified to receive a family based immigration visa. These two categories are immediate relatives, and family preferences.
Immediate relatives include:
- Unmarried children under the age of 21;
- Orphans who have been legally adopted abroad;
- Orphans who are to be legally adopted in the United States; or
- Parents who are over the age of 21.
Family preferences include relatives who are more distantly related to the person who is sponsoring their immigration. Each category has its own specific criteria that must be met in order for the person immigrating to be considered eligible.
In terms of marriage immigration, the applicant must meet the following eligibility requirements:
- Establish that the marriage is real by completing and filing all required forms;
- Establish that the marriage is real by providing supporting documentation, such as a marriage certificate, photos, etc.;
- Provide proof that one of the parties is a United States citizen;
- Provide proof that the couple is not divorced, nor is the couple pursuing divorce;
- Pay all required fees;
- Establish independent eligibility for receiving a green card;
- Attend any and all interviews as requested; and
- Await approval or denial of their green card.
If the applicant is married or engaged to a United States citizen, they and their spouse can apply through the United States Citizenship and Immigration Services (“USCIS”) office. The applicant may then apply for a permanent visa under United States immigration marriage laws, which allows them to live and work within the United States, and later apply to become an American citizen.
It is important to also discuss some of the ways in which an applicant may be considered ineligible for a marriage immigration visa. Some examples include, but may not be limited to:
- If the applicant has been convicted of specific crimes, an act of terrorism, or have violated specific immigration laws;
- If the applicant has a specific communicable disease, such as tuberculosis;
- If the applicant has illegally spent too much time in the United States; or
- If the applicant is married to more than one person.
If the applicant has been found inadmissible, they may file form I-601 with the USCIS office. This can be done if they still wish to seek:
- An immigrant visa;
- Adjustment of status;
- Certain nonimmigrant statuses; and/or
- Specific other immigration benefits.
This form, which is known as the Application for Waive On the Grounds of Inadmissibility, will only be granted if the applicant can prove a unique situation. An example of this would be if the applicant was suffering from an extreme hardship, or if they are requesting a vaccination exemption.
Do You Automatically Get a Green Card When You Marry a US Citizen?
Generally speaking, the person applying to receive a green card is automatically eligible to receive the card once they are lawfully married to a United States citizen. This also applies to those who are lawfully married to a green card holder.
However, the applicant will still need to meet the aforementioned eligibility requirements. Additionally, being lawfully married to a United States citizen would not necessarily negate any of the disqualifying factors.
If neither the sponsor (spouse) nor the applicant is a current United States citizen, they do not meet requirements and as such will not be able to obtain a marriage green card. The same is true if neither spouse has a green card. An important exception to this would be if one of the parties possesses a temporary visa, then the other spouse would likely be able to gain a visa as a dependent. An example of this would be if one of the parties holds an F-1 student visa.
When Is Marriage Immigration Considered Illegal? What are the Legal Consequences of a Marriage Immigration Violation?
To put it simply, marriage immigration would be considered illegal when the marriage is based on fraud. Marriage fraud refers to a situation in which one person enters into a fake or fraudulent marriage specifically with the intent to deceive immigration officials. This type of marriage may also be referred to as a sham marriage.
Some examples of what may constitute marriage immigration violations include, but may not be limited to:
- Falsifying marriage documents;
- Knowingly providing false information to immigration officials with the intent to deceive;
- Setting up a fraudulent living arrangement in order to meet marriage immigration requirements; and
- Entering into a marriage of convenience.
A marriage of convenience is a marriage in which two people marry for reasons other than being in love with each other. Although a marriage of convenience is technically legal, the individuals involved must still follow all requirements for a legal marriage. An example of this would be having a valid marriage license, and being of legal age to enter into a marriage. However, when the marriage is entered into with the intent to commit fraud, it is considered to be illegal. An example of this would be marrying solely so one spouse may gain U.S. citizenship.
In terms of legal consequences for a marriage immigration violation, the violation is classified as a felony crime. Various punishments include, but may not be limited to:
- Loss of current immigration status;
- A lifetime ban on obtaining United States citizenship;
- Fines and/or prison sentencing for the citizen involved in the sham marriage; and/or
- The marriage may be annulled.
Should I Contact an Attorney About Marriage Immigration Questions?
If you have any questions regarding marriage immigration, you should consult with an experienced and local immigration attorney before beginning the process. Immigration laws and requirements often change with each presidential administration, or in instances of worldwide issues such as a pandemic.
An immigration attorney will also be knowledgeable in terms of current laws and eligibility qualifications, and can help you determine your best course of legal action. Additionally, an attorney will also be able to represent you in immigration court, should the need arise.