There are actually a couple of requirements (as well as obligations) that a US Citizen or Lawful Permanent Resident must meet in order to successfully petition for his/her spouse’s marriage-based immigrant visa or status.
1) The marriage has to be bona fide. As obvious as this is, it is always worth repeating that you have to a real, genuine marriage with your spouse that was entered into with the right intentions.
2) The marriage has to be legal. This is an often overlooked but very important eligibility requirement. The presence of a marriage certificate does not necessarily establish that the marriage is legal if, for example, the petitioner or beneficiary has not legally terminated all previous marriages. If a prior marriage has not been properly dissolved, the current marriage may, in fact, be legally invalid despite the presence of a marriage certificate.
3) The petitioner has to execute an Affidavit of Support, which is a binding contract between the Petitioner (in other words, the US Citizen/Green Card Holder Sponsor) and the US Government that he/she will support the immigrant at 125% of the federal poverty guideline level. Moreover, if the immigrant takes any means-tested benefits from the government, the contract ensures that the federal government may seek reimbursement from the sponsor. If the sponsor does not earn enough money, this may present an obstacle to the spouse’s green card application unless a Joint Sponsor can be located.
4) The Affidavit of Support is binding even after a marriage is terminated. This may come as a surprise to a lot of people but the sponsor’s obligation under the I-864 will continue even if the couple subsequently divorces after the immigrant obtains his/her green card. There are certain benchmarks after which the sponsor’s obligation ends, ie., after the immigrant has worked for ten working quarters or after the immigrant becomes a United States Citizen, whichever comes first.
5) If the immigrant receives a conditional green card, the sponsor and the immigrant will normally be expected to file the I-751 to remove the conditions on the immigrant’s permanent residence. While the sponsor is not absolutely required to join in or support the petition for the immigrant’s permanent green card, his/her signature and cooperation-if the couple are still married–are normally necessary to ensure that the spouse is legally eligible for the permanent grant, unless the immigrant plans on filing for a waiver.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the “Subscribe To This Blog’s Feed” button on the right. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the “Case Evaluation” box to the right of the screen to get in touch with one of our attorneys.