The regulatory framework and policies of USCIS and the Department of State have done more to encourage and discourage marriage among persons applying for immigrant visas to the United States. For most non-immigrant visa categories, spouses and children may accompany their spouse to the United States and, in the case of L-1/L-2 spouses, may even work in the United States. These persons are in most cases subject to many of the same restrictions as their spouse with regard to their length of stay and eligibility for renewal of their status. The focus of this article however is the impact of marriage on immigrant visa petitions both with regard to spouses and to children who are considering marriage when they have an immigrant visa petition pending.

"Lets Get Married"

Many persons have heard of or assume that the majority of immigrant visas filed in the United States are based upon marriage to a U.S. Citizen. In many cases this is true and a marriage based petition allows for certain important advantages over other forms of immigrant visa petitions. Immigrant visas filed by a US citizen spouse makes one eligible for waiver of penalties for unauthorized presence in the United States (visa overstay) and unauthorized employment in the United States. (Employment without work authorization) In addition, a marriage based petition does not require any wait in a visa category that is required for many parent-to-child petitions where the children are over 21 years of age, or sibling sponsored petitions (brother to sister, sister to sister, etc.)

Yes, many a reluctant spouse has been brought to the altar by the great advantages offered by marriage- based petitions. This raises the specter of fraud and requires USCIS to try to “weed out” marriage fraud in order to discourage marriages entered into primarily for the immigration benefit. There are no bright lines for determining when a romantic or serious relationship can be described as a true marital relationship free of fraud. And unfortunately in the course of an angry divorce, a committed mother of three will still be accused by the angry spouse/father of marriage fraud.

The burden of proof lies on the married couple to prove the bona fides of their marriage which in the absence of new-born children, requires careful documentation of the financial aspects of their relationship, living arrangements and social interaction especially among family members.

Issues that raise eyebrows at USCIS are separate living arrangements, great disparity in age, disparity in race, religion or cultural background, and, of course, persons who have married after being placed in removal proceedings. While any of these issues can be overcome, any one of these elements will earn extra scrutiny, requests for evidence, and questions from reviewing officers.

Marriage is a serious endeavor in any circumstance but in the arena of immigration marriage fraud, it is one of the highest offenses that will bar the individual from obtaining any additional immigration benefits. Fiancé’s should also keep in mind that nearly all Adjustment of Status applications are approved within 2 years of marriage and that a second process, removal of conditions, and potentially a second interview must be endured two years from the date of approval.

"You Don’t Have to Stay Married"

The U.S. Congress under the guidance of President Clinton enacted the provisions of the Violence Against Women Act or “VAWA” provisions. These provisions were enacted to protect the victims of domestic violence, whether the wife or the husband, from staying in a marital relationship where they suffer extreme physical or mental abuse or even risk death in order to obtain their legal permanent resident status. VAWA claims must be well documented and should include police reports, affidavits of witnesses, proof of efforts to seek counseling, shelter or other assistance in leaving a domestic violence situation. In addition, a well documented divorce concluded prior to an interview will not disqualify an individual from removing conditions from his or her legal permanent resident status. The major consideration for USCIS in these situations is that a marriage is bonafide from its inception, meaning the applicant intended to enter into a lasting marriage at the time of marriage even though the relationship deteriorated afterwards.

"Don’t Get Married (Yet)"

Many benefits are extended to the dependent children of immigrant visa applicants. One of the most significant benefits of being a dependent child under the age of 21 is the ability to ‘follow to join” a parent who has obtained legal permanent resident status. However, once that child has turned 21 or been married, USCIS and Department of State consider them emancipated “sons or daughters” no longer relying on their parents for their welfare. Sons and daughters who have married or reached the age of 21 must therefore be the beneficiary of a separate petition filed by the Legal Permanent Resident or U.S. Citizen parents and subject to lengthy waits under the F1, F2A and F2B visa categories. Some relief from this situation is offered by the provisions of CSPA or child status protection act, but they pertain only to age and not marital status. For this reason you will see many children postpone marriage despite having a serious relationship and even children without getting married.

In many countries there are great pressures to enter into a marital relationship, a situation which in many Middle Eastern countries subject to Sharia law could pose great risk to the mother of children born out of wedlock. For many countries, a significant percentage of fraud or misrepresentations to USCIS involve marriage by children of U.S. Citizens who marry prior to entry to the U.S. as a “child” of a U.S. Citizen petitioner. ‘P2-2 Fraud’ as it is commonly referred to, is an unfortunate yet expected outgrowth of this marriage penalty for persons seeking to enter the U.S. on the parent’s petition.

It is also important to realize that a child who has been petitioned by a legal permanent resident parent effectively “kills” his parent’s petition upon getting married because there is no visa category for married sons or daughters of legal permanent resident parents. The petition must be re-filed by the naturalized parent with a new priority date.

Immigration Scams

Scam artists have plagued the immigrant community with promises of employment authorization cards obtained with filing of frivolous asylum claims. The result? Persons would obtain employment authorization and tell their friends, only to find themselves months later in removal (deportation) proceedings. With changes in the rules for Asylum, scam artists then began filing phony marriage based petitions so that their customers could obtain employment authorization. Most victims have no idea the phony petition was filed until they later file a legitimate petition with USCIS and are accused of marriage fraud on the prior petition.

Talk to Your Attorney

If you do plan to get married and are concerned about how this will affect your immigration status or ability to apply for future benefits, you should always consult with a qualified attorney specializing in immigration law. Even the manner and location of your marriage here or abroad could have an affect on how you will apply for entry to the United States.

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About Robert J. DuPont, Esq

Mr. Dupont is a graduate of Yale University and USC Law School and is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont is a past chairman of the Immigration Law Committee with the Beverly Hills Bar Association. During the course of his 12 year practice in immigration law he has directly influenced Department of State and USCIS practices and policies through Federal District Court litigation including a Ninth Circuit Court of Appeals decision on V-Visas eliminating age-out of minor V-visa recipients. Should you wish to consult with or engage the services of Mr. Dupont, please contact Immigration Solutions here. :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::