If you are married to a U.S. citizen or permanent resident, you can apply for U.S. lawful permanent residence, otherwise known as a marriage-based immigrant visa or green card. To be eligible under U.S. immigration law, you and your U.S. spouse must show:
We'll discuss all of these issues below. (Also see 8 U.S.C. Section 1153.)
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 was made or can be obtained from some government office.
Domestic partnerships, in which a couple lives together but have not formalized their relationship, are not normally recognized for U.S. immigration purposes. However, if you have lived together in a place that recognizes common law marriages, you might be able to show that you met the requirements for your marriage to be legally recognized in that state or country. If you believe you might have entered into a common law marriage, consult an attorney.
You do not need to have been married in the U.S. for your marriage to be considered legal. It is perfectly acceptable if you marry in your home country or in some other destination of your choice. A variety of marriage procedures may also be recognized, from church weddings to customary tribal practices—if recognized as valid in that country.
But both you and your U.S. 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 afterward, meaning they have sexual relations.
If you have not yet married, make sure you are legally eligible to do so. The state or federal government where you intend to marry might 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 will also need to do some research. You will find that all states prohibit a person from marrying a sister or brother (sibling), half sibling, parent, grandparent, great grandparent, child, grandchild, great grandchild, aunt, uncle, niece, or nephew. Some states have additional prohibitions, such as on marrying a first cousin.
See Marriage Requirements, Procedures, and Ceremonies FAQ for more information. And if you would like to hold the wedding in the U.S., you might want to look into the application process for a K-1 fiancé visa for the immigrant spouse of a U.S. citizen.
Ultimately, in order to obtain lawful U.S. residence, you will need to provide a document showing you were legally married. This will, most commonly, be a marriage certificate issued by a legitimate governmental agency. (A piece of paper from a church or a ship's captain will not, on its own, be enough to establish that you really are married.)
Also, a marriage license is not the same as a marriage certificate, although the license can serve as the certificate in some places if you've signed it in front of witnesses.
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 husband and husband or wife and wife). Although this 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 U.S. government priority. (See Penalties for Committing Immigration Marriage Fraud.)
When it comes to deciding whether a marriage is bona fide, the U.S. government is pretty strict. It will ask a lot of questions during the course of the application process. It will look for various "red flags," such as big differences in age or no shared language. And it will demand extensive documentation showing that you are establishing a life together.
Only U.S. citizens and U.S. lawful permanent residents (green card holders) can obtain permanent residence or green cards for their spouses. People with temporary rights to live in the United States (such as with visas or work permits) cannot petition for their spouse to become a permanent resident, though they might be able to bring them to the U.S. on a short-term visa.
Your spouse could have become a U.S. citizen in one of the following ways:
Unlike some countries, the United States does not require that its citizens carry some sort of national identity card. People who are U.S. citizens may have different types of documents proving their status, such as a birth certificate, a U.S. passport, naturalization certificate, or a certificate of citizenship. Any of these can be used as proof of status for immigration purposes.
Sample U.S. Passport
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. Spouses of permanent residents are eligible for a green card.
The fact that your spouse has a green card now does not, however, guarantee that they'll have it forever. Permanent residence can be lost, for example, if the person makes their home outside the U.S. ("abandons" residence) or commits certain crimes or other acts that cause USCIS to begin removal proceedings and order the person deported. If your U.S. resident spouse were to lose permanent residence before you had finished the application process for a green card (which will likely take years), you would also lose your right to immigrate through the 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, that does not indicate status as a permanent resident. The right to work in the United States is temporary, usually given to people who are awaiting a decision on an immigration application (including green card applications). You cannot get a green card through someone who only has permission to work in the United States.
Most people would prefer to forget about their past marriages. However, the U.S. government doesn't make it that easy if you want to enter this country via a new marriage. Any previous marriages must have ended by legal means, such as death, divorce, or annulment. You will have to present the official documents to prove that the marriage ended, such as a death or divorce certificate. Otherwise, USCIS 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.
The next question is how and where you can apply for the green card. This will depend in part on whether you were placed into removal proceedings before actually getting married.
If you'd like a personal analysis of whether you qualify for a marriage-based green card, and/or assistance in preparing your application and monitoring its progress through the U.S. government bureaucracy, it's well worth hiring an experienced U.S. immigration attorney.