For Love and Affection: Marriage to American Citizens
We generally counsel potential clients that there are four ways to get a “green card” or lawful permanent residency in the US: (1) through a job offer, (2) through asylum, (3) through the Diversity Visa Lottery and (4) through the sponsorship of a close relative, such as a spouse, parent or adult child, who is a permanent resident or American citizen. Given that: (1) the visa quota system is now supremely overtaxed and green cards through jobs require lengthy waits, (2) the Diversity Visa Lottery is merely a chance to win a green card and is not even available to everyone and (3) winning asylum is a difficult and risky undertaking and, even when successful, still requires a waiting period for a green card, family sponsorship through marriage is likely to be given a second, hard look by many people.
Any good immigration attorney will steer her clients away from marrying exclusively to obtain a green card. The Immigration Marriage Fraud Amendments of 1986, have led to tough scrutiny of fraudulent or sham marriages and given the Government the authority to impose criminal penalties on both the immigrating alien and the U.S. citizen participant. At the very least, a finding of marriage fraud by the USCIS will initiate removal or deportation proceedings and could result in the alien’s detention pending the removal hearings. Certainly, walking down this aisle is more treacherous than any marriage aisle. And just as your parents taught you to choose carefully and take precautions, you should do so here as well.
The 1986 law requires that where the couple has been married for less than two years when the alien is granted permanent residence, that residence is only conditional and is given for a period of two years. At the end of that condition period, the couple files a joint petition to remove the condition on the permanent residency. This system gives the USCIS a second chance to determine if that initial marriage was valid and bonafide to begin with or whether the couple was marrying to evade the immigration laws. Since Congress determined that it could not find that any marriage which did not survive for a minimum of two years was fraudulent, there are waivers available to the requirement that both spouses file the joint petition, such as where the marriage has ended in a final divorce, the U.S. citizen spouse is deceased, or where the alien is the victim of abuse. All others must timely file this joint petition and many will be called back to the offices of the USCIS for a repeat interview.
This leads one to the question: what is a valid marriage? Don’t people marry for a variety of reasons? Isn’t it the ever-occurring subject of every gossip as to why that beautiful young woman married that ugly old geezer? Why didn’t that widower wait longer before hitching up with that gold-digging hussy? Didn’t her parents warn her not to get involved with that loafer? What does he/she see in him/her anyway? My grandmother always told me it’s just as easy to fall in love with a rich man as it is a poor man.
But, there is the key word in most peoples’ perception of marriage- love. Thus, our warning to potential clients that marriage must be for love and affection, above all else. Surely there are complicated reasons to marry and love is not the only one. However as far as the USCIS interview is concerned it had better be an over-riding incentive. The law states that the marriage must be valid at its inception. The courts have decreed that the bride and groom must have intended to establish a life together. While it is the subjective state of mind that is the ultimate factor in the validity of a marriage, the Government finds it near impossible to see inside people’s heads- at least not yet. Therefore, it is the conduct of the two parties, both before and after the marriage, that becomes relevant.
The USCIS will normally ask for documents that appear to them to create a legitimate marital bond. As proof of the behavior prior to the marriage they will look at the marriage ceremony, the guest list, the photos, and the honeymoon. For proof of the bonafide bond after the marriage, they will ask for the types of documents that most couples will normally have begun to acquire within the first six to twelve months of marriage: joint apartment leases, property held by both parties, life insurance policies naming the spouse as the beneficiary, dependent medical insurance coverage, joint car insurance, joint income tax filings, joint bank accounts, jointly-held credit cards and, of course, children born to both parties.
Additionally, as has been popularly portrayed in movies, the USCIS may separate the couple and conduct an intensive interview designed to see if the couple actually know each other and live together. The courts have upheld this procedure and found that inconsistency in the couple’s statements can be the basis for the denial of the green card. Similarly, the Government may conduct an on-site investigation and question neighbors, relatives and friends. It may “explain” to the U.S. citizen the criminal penalties which can be charged if marriage fraud is found and allow the American spouse to “withdraw” the petition for sponsorship thus leaving the alien spouse with no underlying basis to seek the green card.
But what happens when the marriage is shaky and the couple is separated, but not divorced, at the time of the interview? What about legitimate marriages where the couple may not live together every day of the week due to job requirements or other circumstances? What about those who choose not to co-mingle their funds? What about those who love each other but don’t sleep together? What about homosexual marriages or civil unions? What about dear and committed friends who enjoy a measure of “love and affection” and have married out of convenience- financial, raising children, or otherwise?
In many of these circumstances, if the USCIS applies the correct legal standard, permanent residence can be granted. The marriage must be valid at its inception, regardless of whether the couple is still living together at the time of the USCIS interview. The couple must have intended to build a life together and did not enter into marriage solely to obtain an immigration benefit. Moreover, the courts have found that co-habitation and consummation are not absolute pre-requisites. However, homosexual relationships have yet to be recognized- even where co-habitation, consummation and love and affection are present.
Marriage may become more popular in the coming years as other avenues of legal immigration appear more and more daunting. The USCIS is likely to scrutinize these applications closely once it understands that people will find a way to immigrate and the tide will not be stemmed. That said, couples enter into legitimate relationships for many complex reasons. Just be sure that yours are the right ones and that you are prepared to document your “love and affection” as if your future depended on it, because it does.