Who is a spouse?

The question of who is considered a spouse is important for U.S. immigration and non-immigrant purposes. There are three main considerations of whether there is a marriage.

First, the marriage must have been valid at the time it was performed. Each party of a marriage must have been free to marry at the time it was performed. The party must be single and all prior divorces must have been valid and recognized. The marriage ceremony must have been recognized as legal in the place where it was performed.

Second, the marriage must still be in existence at the time the immigration benefit is conferred or during the period that the principle foreign national is in the United States under a non-immigrant visa. The marriage does not have to be “viable.” The couple can be separated or longer living in the same home but it must not have been legally terminated.

Third, the marriage must not be a marriage of convenience or entered into for immigration purposes. The intention of the marriage should be based on good faith in accordance with the laws of the place where the marriage was performed. No fee or consideration should have been given to either party as a precursor to filing a petition for an immigration benefit.

The penalties for marriage fraud is severe. An immigrant found to have committed marriage fraud will be removed from the United States and essentially black listed from ever entering the United States again. The U.S. petitioner faces the possibility of imprisonment for up to five years and a $250,000 fine.


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