Immigration Petition Through Marriage
The immigration laws provide a nonimmigrant visa classification for persons coming to the United States to marry American citizens and reside here (See Fiancée Visa). A person who is already married to a U.S. citizen may apply for permanent residence through marriage, but may not apply for a fiancée visa. An alien who marries a U.S. citizen can qualify for a Green Card in this category.
The marriage must not be a "false marriage." That is, it cannot be a marriage entered into in order to obtain an immigration benefit. The marriage must be legally entered into with both parties free to marry, all prior divorces were legal, and the marriage formalities themselves are recognized as legal in the jurisdiction where the marriage occurred. The marriage must still legally exist. The parties cannot be divorced or legally separated. But the marriage need not be viable-even if the parties are separated, if they have not entered into a legal separation agreement or gotten divorced; they still have a valid relationship for immigration purposes. The spouse of a citizen whose marriage was created within two years prior to being granted permanent residence is granted residence on a conditional basis. The beneficiary is a full permanent resident in all respects. They are eligible for employment and have the ability to travel freely in and out of the United States. However, that residency is subject to termination within two years after it is granted if the marriage has terminated by divorce or annulment during that period, or the marriage is judged by INS to be a false marriage. Battered spouses of citizens may present an immediate relative petition.
To qualify, the alien spouse must be a person of "good moral character," must have entered the marriage in good faith, must have resided in the United States with the citizen spouse, and must have been battered or subjected to "extreme cruelty" by the citizen spouse. Any credible evidence submitted regarding to the treatment of the alien spouse will be considered by the INS. The law provides identical benefits to battered children of a U.S. citizen. Qualifying as an immediate relative of a citizen has several advantages, but one disadvantage. Since an unlimited number of such aliens can immigrate each year, there is never a waiting list for visas. If such aliens are already in the U.S., and they meet all the requirements for adjustment of status, they can apply for adjustment of status at anytime.
Because of the recent addition of the conditional resident status requirement for spouses of citizens, there is the risk that the residency could be terminated if the underlying marriage terminates within two years of obtaining residence. This situation might make obtaining permanent residency through a job offer, for example, more appealing than obtaining it through a marriage. All of these options can be discussed.
