If you are a foreign national married to a U.S. citizen or permanent resident, and plan to apply for a marriage-based visa or green card, you must double check that this marriage meets the following requirements:
We'll explain all of these below.
To qualify for a marriage-based visa or green card, you must be legally married. A legal marriage is one that is officially recognized by the government in the country or state where you were married. This usually means that an official record of your marriage has been made or can be obtained from some public office.
Same-sex marriages count for immigration purposes, as of 2013 (the year the Supreme Court issued its decision in U.S. v. Windsor, striking down the federal Defense of Marriage Act (DOMA), which had defined marriage as between a man and a woman). However, not every U.S. state authorizes same-sex marriages. The marriage will need to have taken place in a state or country where such marriages are legally recognized.
Domestic partnerships, in which a couple lives together but have not formalized their relationship, are not normally recognized for immigration purposes. However, if you have lived together in a place that recognizes common law marriages, you may be able to show that you met the requirements for your marriage to be legally recognized in that state or country. If you are in this situation, consult an immigration attorney.
You do not need to have been married in the United States for your marriage to be legal. It is perfectly acceptable if you marry in your home country or elsewhere. A variety of marriage procedures are also recognized, from church weddings to customary tribal practices.
But note that both you and your spouse must have actually attended your wedding ceremony. So-called “proxy” marriages, where another person stands in for the bride or groom, are not recognized by the U.S. government unless the couple later consummates the marriage, meaning they have sexual relations.
If you have not yet married, make sure you are eligible to do so. The state or federal government where you intend to marry may have legal restrictions on who can marry. In the United States, each of the 50 states establishes its own marriage rules. For example, in some states you must be 18 years of age to marry, while in others you can marry younger if you can have the consent of your parents.
If you and your spouse are related by blood, you’ll also need to do some research. You’ll find that all states prohibit marrying your sister or brother (sibling), half sibling, parent, grandparent, great grandparent, child, grandchild, great grandchild, aunt, uncle, niece, or nephew. But some states have additional prohibitions, such as marrying your first cousin. For details, see Marriage Requirements, Procedures, and Ceremonies FAQ on Nolo.com.
Finally, you will need to get a document to show you were legally married. The immigration authorities may not accept anything less formal than a marriage certificate issued by a legitimate governmental agency (as opposed to a piece of paper from a church or a ship’s captain, for example).
A bona fide marriage is one in which the two people intend, from the start, to establish a life together as husband and wife. (Or, in the case of same-sex marriages, husband and husband or wife and wife!)
Although marriage can mean different things to different people, one thing is clear: A marriage entered into for the sole purpose of getting the immigrant a green card is not bona fide. It’s called a “sham” or “fraudulent” marriage, and uncovering these relationships is a top USCIS priority.
For more on what USCIS may look at, see Proving a "Bona Fide" Marriage for Immigration Purposes.
There are only two classes of people living in the United States who can obtain permanent residence or green cards for their spouses: U.S. citizens and U.S. lawful permanent residents (green card holders).
Your spouse may have become a U.S. citizen in a variety of ways, including:
Unlike some other countries, the United States does not require that its citizens carry any sort of national identity card. People who are U.S. citizens may have different types of documents that prove their status, such as a birth certificate, a U.S. passport, or a naturalization certificate. Your spouse will need to get a copy of documentary proof of his or her citizenship in order to accompany your application for a U.S. green card.
A lawful permanent resident is someone with a legally obtained green card. This means that the person has a right to live in the United States permanently and may eventually become a U.S. citizen. The spouses of permanent residents are eligible for a green card (although it will take longer than for spouses of U.S. citizens, due to annual limits on the number of available visas).
You should know, however, that the fact that your spouse has a green card now doesn’t guarantee that he or she will have it forever. Permanent residence can be lost, for example, if the person makes his or her home outside the United States or commits certain crimes or other acts that cause the immigration authorities to begin removal proceedings and order the person deported. If your spouse lost his or her permanent residence while your application was being decided on, you would also lose your right to immigrate through your marriage.
A green card is not the same thing as a work permit card. If your spouse carries a card with the title Employment Authorization Document, he or she is not a permanent resident.
Any previous marriages must have ended by legal means—such as death, divorce, or annulment—and you’ll have to present the official documents to prove it. Otherwise, the immigration authorities will wonder whether your first marriage is still your active and real one, making your new marriage just a sham to get a green card.