How to Sponsor your Spouse for U.S. Immigration - Part 1

How to Sponsor your Spouse for U.S. Immigration - Part 1

This blog series will help you discover how you can sponsor your spouse to move to the United States. Part 1 will consider eligibility, including marriage requirements and applicable restrictions.

Valid Marriages

U.S. immigration law applies very specific definitions to family relationships, including spouses. A “spouse” is defined as a legally wedded husband or wife. The marriage must be considered valid under the laws of the state or the country where the marriage was performed. Religious marriages are considered valid if the marriage is legally valid in the jurisdiction (depending on the jurisdiction, this may require that the marriage be civilly registered).

Same-sex and transgender marriages are valid marriages for immigration purposes. Following the Supreme Court’s landmark decision U.S. v. Windsor, 570 U.S. 744 (2013), all U.S. embassies and consulates were directed to review visa applications based on same-sex marriages in the same way that visa applications based on opposite-sex marriages are adjudicated. The requirement that the marriage be considered valid under the laws of the state or country where the marriage was performed remain in effect for same-sex couples. Therefore, the same-sex marriage must have been performed in a state or country where same-sex marriage is legal for the marriage to be recognized for immigration purposes. The same rules apply to marriages involving transgender persons.

In all cases, the burden is on the applicant to establish that they have a valid marriage with their U.S. citizen spouse. USCIS will not recognize the following relationships as valid marriages, even if valid in the state or country of celebration:

  • Polygamous marriages;
  • Certain marriages that violate the strong public policy of the couple’s state of residence;
  • Civil unions, domestic partnerships, or other such relationships not recognized as marriage in the place of celebration;
  • Relationships where one party is not present during the marriage celebration (i.e. proxy marriages), unless the marriage has been consummated; or
  • Relationships entered into for the purposes of evading U.S. immigration laws.

Previous Marriages

In situations where either spouse was previously married, they must demonstrate that the prior marriage was legally terminated. The divorce or annulment must be valid under the laws of the jurisdiction that granted it, and that termination must be recognized in the jurisdiction where the couple resides. Importantly, the divorce may not be recognized by USCIS if neither member of the divorcing couple was physically present or domiciled at any time in the divorcing country. 

Religious divorces are generally not considered adequate for immigration petitions, but customary or tribal divorces can be recognized if sufficient proof is presented.

Common-Law Spouses

Common-law spouses may qualify as spouses for immigration purposes. In order for the common-law marriage to be valid for immigrations purposes, the parties must:

  • Live in a jurisdiction that recognizes common-law marriage; and
  • Meet the requirements for a valid common-law marriage in that jurisdiction.

Additional Requirements for Spousal Sponsorship

There is no minimum age for a U.S. sponsor to file a petition for a spouse. However, the sponsor must be at least 18 years of age and have a residence in the United States in order to sign the Form I-864, which is required for the immigrant visa for a spouse and other relatives of U.S. sponsors. A joint sponsor cannot overcome this requirement. 

Additionally, U.S. citizens and lawful permanent residents may be barred from filing a marriage-based visa petition if they were convicted of certain offenses against a minor. Under the Adam Walsh Child Protection and Safety Act (2006), the following offenses against a minor will prohibit a U.S. citizen or lawful permanent resident from sponsoring a family member, including a spouse:

  • An offense (unless committed by a parent or guardian) involving kidnapping;
  • An offense (unless committed by a parent or guardian) involving false imprisonment;
  • Solicitation to engage in sexual conduct;
  • Use in a sexual performance;
  • Solicitation to practice prostitution;
  • Video voyeurism;
  • Possession, production, or distribution of child pornography;
  • Criminal sexual conduct involving a minor, or the use of the internet to facilitate or attempt such conduct; or
  • Any conduct that is by its nature a sex offense against a minor.

This prohibition may only be overcome if the Secretary of Homeland Security determines that the petitioner poses no risk to the beneficiary. 

Third, U.S. sponsors are required to maintain their principal residence in the U.S. in order to file the Form I-864 (Affidavit of Support). If you live abroad, you may still be eligible to be a sponsor if you can demonstrate that your residence abroad is temporary and you still maintain your residence in the United States. You may also be eligible if you can demonstrate you intend to resume residence in the United States. 

Finally, U.S. sponsors are required to demonstrate that their household income is equal to or higher than 125% of the U.S. poverty level for the applicable household size. If the U.S. sponsor is on active duty in the U.S. armed forces, they only need to demonstrate an income equal to 100% of the U.S. poverty level for the applicable household size.

What’s Next?

Part 2 of How to Sponsor Your Spouse for U.S. Immigration will discuss “Where to Start - Gathering Evidence and Documents Required.” Stay tuned.

Questions?

To discuss how we can help you file a petition for your significant other, please contact us.

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