Immigration Rumor : Love - Not Sufficient Alone for Getting GC!
Posted Apr 26, 2002

In the MurthyBulletin, we at The Law Office of Sheela Murthy attempt to explain the law in clear terms and to dispel misinformation that is circulated regarding immigration matters. We have begun a Rumor page on MurthyDotCom devoted to this. Today we set forth to address another common misunderstanding: what happens when a foreign national marries a U.S. citizen?

First, as a general rule, the INS does not confer benefits "automatically." With some very limited exceptions, if a person wants a benefit from the INS it is necessary to apply. One must file the appropriate petition and/or application and establish all necessary qualifications for the benefit requested. In the case of marriage to a U.S. citizen, that citizen must file a petition for an alien relative (Form I-130) and the foreign national must file an Application for Adjustment of Status (Form I-485) package (if in the U.S.) or undergo Consular Processing (if outside the U.S.). If the case is approved, the foreign national becomes a U.S. Permanent Resident, NOT a U.S. citizen. Some additional supporting forms are also necessary.

In order to gain approval, the couple must establish that the marriage is bona fide, i.e. in good faith. Basically, they must establish that the marriage was entered into with the intention of being together as a couple and not solely for the purpose of obtaining an immigration benefit. In order to prove their intention, the couple presents documentation of the history of the relationship and their current life together. The INS looks for the types of documentation that reflect a shared life, indicative of a typical married couple.

The types of documents required will vary depending upon the length of the marriage, the financial status of the couple, etc. The INS will pay particular attention to whether any documents appear to have been created for purposes of the immigration case. The most typical example is the joint bank account. Many people are under the impression that a joint bank account is a "must" for a marriage case. While it is a standard and important piece of evidence and most married couples have a joint bank account, the failure to have one will not doom the case if there is other persuasive evidence. Similarly, just having a joint bank account will not impress the INS if the rest of the picture is not complete.

Assuming the couple is in the U.S., they will have to appear before the INS for a joint interview, sometimes called the "Stokes interview". The INS will question them together regarding the marriage and the documents offered in support of the marriage. The INS Examiner will judge their demeanor, the way they interact together and other relevant factors. In cases where the INS has misgivings, the couple can be interviewed separately for extended periods. In these separate interviews, the couples are asked details of their daily lives and backgrounds. Their answers are later compared. The questioning goes beyond things that could be memorized prior to the interview. The couple is given a chance to respond in writing to explain discrepancies and provide further documentation, if after the interview the INS determines that the case is not appropriate for approval.

The couple must also demonstrate that all prior marriages were validly terminated. If the beneficiary previously attempted to gain immigration benefits through a marriage, the INS will have to be satisfied that there was no fraud in the earlier marriage. If there was fraud involved in an earlier marriage there is a permanent bar against gaining benefits though a later marriage.

As additional protection against marriage fraud, "conditional" permanent resident status is given to a foreign national with a marriage that is less than two years in duration at the time of case approval. This means that the permanent resident status is only valid for two years and a further petition must be filed to remove the condition. Again, the couple must provide documentation to demonstrate the validity of the relationship. Essentially, the INS does a two-year review of the marriage to see how the couple conducted themselves.

Essentially, Congress and the INS have put safeguards into place to weed out fraudulent marriages. Cases that are denied can be referred for removal (formerly known as deportation) proceedings. All forms are signed under penalty of perjury, and the signatory is subject to substantial criminal penalties. While the system is not infallible and some questionable cases may slip through and some genuine cases may be unduly difficult, immigration through marriage is certainly neither automatic nor a "rubber stamp" procedure. So, although the Beatles song says "All you Need is Love," it just is not sufficient to obtain permanent resident status in the U.S.! A couple needs to establish the other indicia of a valid relationship and file all required legal documents.