Under certain circumstances, a bona fide marriage with a United States Citizen or Lawful Permanent Resident not entered into for immigration purposes may form the basis of an application for permanent residence. However, far too often, foreign nationals are under the impression that marriages-even if they are legitimate--are a panacea to their status problems. The reality, unfortunately, is much more complicated than that. There are many obscure restrictions codified in our immigration laws intended to detect and deter fraud that often complicate marriage based cases. Most people are aware that if the marriage is less than two years old, the alien will receive a conditional green card ("CR-1"). Ninety days before the second anniversary of the grant of permanent residence, the couple must ordinarily file to remove the conditions on permanent residence. One less known provision regarding marriage based cases is INA 204(a)(2)(i), regarding petitions for second marriages.
Petition for Second Spouse as a Lawful Permanent Resident-Beware the 5 Year Rule
Lawful Permanent Residents who acquire their permanent residence though marriage are prohibited from having an I-130 for a second family based preference spouse (F2A) approved for 5 years from the date he/she obtained his/her green card. In other words, if you received your green card through your previous marriage, subsequently divorce, and then wish to file for a second spouse, your I-130 petition will not be approved until at least five years have passed from when you first got your green card. If an I-130 is filed before this time, USCIS may seek to deny the petition under this provision or issue a Request for Evidence pertaining to an exception, discussed below.
Fortunately, there is an exception, so those who do not wish to put their lives on hold due to the 5-year rule may nevertheless file. In order to meet the exception, the petitioner must establish by clear and convincing evidence that the prior marriage through which the alien got his/her green card was not entered into for the purpose of evading the immigration laws, or, to put it plainly, the previous marriage was not fake. This begs the question: how can one prove that the previous marriage was not entered into solely for immigration purposes?
Documentation/Evidence to Support Good-Faith Marriage
CFR 204.2(a)(1)(iii)(B) does provide some guidance with respect to this issue. According to the regulations, evidence to prove the bona-fide, genuine nature of the marriage may include, but is certainty not limited to:
- Documentation showing joint ownership of property
- Joint lease or documentation showing a common residence
- Documentation showing commingling of financial resources
- Birth certificates of any children born of the marriage
- Affidavits of third parties having personal knowledge of the marriage who can attest to the genuine nature of the couple's relationship.
It is important to understand that this list is by no means exhaustive and reflects the same type of evidence that you would want to gather in support of any marriage based petition (or I-751 case) where an officer must determine whether the relationship is genuine.
For more information on this topic or help in assembling a proper filing that meets the exception or in response to a Request for Evidence that is issued by USCIS in connection with your I-130, consult with our office.