New Marriages and Immigration Law Obstacles
When you are newly married, it seems wonderful to be able to finally petition for your spouse and set up the foundation for a life together in the United States. There are several issues to be cautious of when your marriage is very new. Anticipating these issues is key to avoiding denials.
Filing the I-130 and I-485 "One-Step" with your SpouseIf you are a U.S. citizen, and your spouse entered the United States on a visa, or through some other means had permission to enter the United States, then you will (usually) be able to file the I-130 Petition for Alien Relative at the same time as the I-485 Application for Permanent Residence. This is a huge time saving bonus. This means that instead of filing the I-130 and waiting months for approval and a current priority date, your spouse is able to apply for their permanent residence all in one swoop. Another bonus is that you can file an I-765 Application for Work Authorization at the same time so that your spouse can legally work in the United States while they wait for the outcome of their filing.
For many newly married couples, this process seems ideal. There are certain challenges that get overlooked however, most commonly when couples try to file these forms on their own without the benefit of attorney representation. The I-130 Petition simply establishes your spouse's eligibility based on your new marriage. However, there is more involved. Beyond proving that your marriage is technically legal on paper (i.e. your marriage certificate), you must prove that your marriage relationship is real.
Many people try and submit only the most basic proof of marriage and then are surprised when USCIS questions the validity of that marriage. Marriage proof comes in many forms. Maybe you moved in together after marriage and have both names on the lease, you might have a joint bank account for daily expenses, you might have added your spouse onto your life insurance policy, etc. These are often things that take time to accumulate and create. When a marriage is new, and the filings are done immediately, often the couple has not had time, or reason to think, about such changes. This makes a weaker case in front of USCIS that the marriage is real. Beyond the evidence collected during dating, such as photos and text messages, what additional evidence has been accumulated? Often, it is better, particularly in cases where the couple married quickly after meeting and dating with no children involved, to wait to file while they gather evidence under the guidance of their attorney. Then file the one-step and continue gathering evidence as you wait for your interview with USCIS. This way, by the time you get to the interview, you have a year or more of evidence collected from before and after the filing. This additional evidence can go a long way to push a case through that might otherwise have been suspect due to the rapid engagement, marriage and filing of immigration documents.
Filing the I-130 and Consular Processing for your SpouseWhen your spouse is outside of the United States, you must file an I-130 Petition for Alien Relative to begin the process of bringing he/she to the United States to live. In some ways, there are more obstacles with this process than when a spouse is already legally in the United States and can file the I-130 and I-485 together for their Adjustment of Status. One of the biggest, is that it is harder to gather and create legitimate evidence of a bona fide marriage when the two people live in separate countries. Again, quick marriages resulting in immigration filings are most suspect. In this case, you will have to file the I-130 and then wait for the Petition to get approved by USCIS before you can proceed into the Consular Processing phase. In these cases, everything should be considered evidence of bona fide marriage. Take as much time as is financially possible and go visit your spouse in their home country. Meet their relatives and get copies of the photos taken at the gatherings. You might consider meeting your spouse in a third country to which you can both obtain travel permission. If you visit your spouse and stay in a hotel together, keep a copy of the receipt that lists both of your names on the check-in. Even little documents can have weight once they are all factored in together. Be prepared to show your phone records showing the daily communication between you and your spouse. An attorney can help you and your spouse find the evidence of a bona fide relationship through their experience with these types of filings. And in the end, it is always better to over-prepare than to do the minimum and hope it all works out on its own. That is, unfortunately, very rare in immigration law.