A couple who has filed an I-130 immigrant petition based on marriage must submit documentation establishing both the ability of the petitioner (evidence of U.S. citizenship or lawful permanent residence) and validity of relationship (evidence of lawful marriage of the petitioner and beneficiary and of the termination of any and all prior marriages of both parties.) Proving a marriage for immigration is a matter of facts and law.
The ability of the Petitioner to file a marriage-based petition is usually relatively easy to prove: simply provide the Petitioner’s birth certificate, naturalization certificate and/or U.S. passport (if a U.S. citizen), or proof of the Petitioner’s permanent residence status. Make sure that the originals of these documents are readily available, as the adjudicating U.S. Citizenship and Immigration Services (USCIS) officer may eventually need to review them for accuracy and validity.
The I-130 is the Petitioner’s paperwork and it is the Petitioner’s burden to prove the validity of his/her relationship with the Beneficiary. The Petitioner’s offered proof will be analyzed under the “preponderance of the evidence” standard, otherwise known as the “more likely than not” standard. Where the Beneficiary is in immigration court, the standard of proof may be higher. The petition may be approved if the marriage is “valid and was not entered into solely for immigration purposes.
The real adjudication regarding the validity of the marriage most frequently happens later, either at what is commonly referred to as a “245 adjustment interview” for the section of law governing Adjustments of Status or at the U.S. consular post during the immigrant visa interview. Either way, the interview is an opportunity for a government official to examine the evidence that the Petitioner provides as proof of his/her bona fide marriage to the Beneficiary, and is the time when the official will make a final determination on the Beneficiary’s eligibility to adjust or immigrate based on that I-130 petition.
If the permanent residence application is approved prior to the parties’ two-year wedding anniversary, the foreign national will be admitted to the United States as a conditional permanent resident for an initial two year period. An I-751 Petition to Remove the Conditions of Residence will need to be filed during the 90 day period immediately preceding the expiration of this period. At the time of the I-751 Petition, it will once again be necessary to demonstrate that the marriage was not entered to evade the immigration laws of the United States. When filing the I-751, the best practice is to provide evidence of the continuing viability of the marriage, if available.
USCIS adjudicating officers have in their field manual a set of facts that would indicate a fraudulent marriage. If there is “evidence that the marriage was entered into for the purpose of evading the immigration laws, the petition must be denied.” The Beneficiary may then be ineligible for future immigration benefits per Immigration and Nationality Act, which describes a ground of inadmissibility based on fraud or willful misrepresentation of a material fact.
