Spousal immigration remains a relatively big percentage for all family based immigration filings. As such, there are a few things to keep in mind. First, the process can be complicated, with many small steps and professional help should be sought if needed. This guide will discuss the adjudication of the I-130 form specifically.
The petitioner, either the US Citizen or the Legal Permanent Resident (LPR), may file the I-130 and I-485, Adjustment of Status, forms concurrently. This procedure may also be called “one-stop” filing. Both forms should be filed at the office depending on which office has jurisdiction over the beneficiary’s place of residence or where the petitioner resides. It is important to ensure that the beneficiary is eligible to receive benefits from both forms before filing. Certain immigration laws and visas have nuances which may prohibit eligibility. For example, a visa holder who entered the U.S. with a J exchange student visa must satisfy their two year residency requirement before being eligible to file an immigrant visa.
Other adjudication issues may arise. A common situation arises when the marriage was performed in another country. U.S. Immigration look at two different issues. First, the country were the marriage certificate was presented, duly certified by the official record custodian, may give a presumption of marriage. However, U.S.C.I.S., as a general rule, may judge the marriage valid depending on the country where the marriage was celebrated. The marriage will not be valid in the U.S. if it is considered offensive, even if the marriage is valid in the country where it is celebrated, such as polygamy or plural marriages. Marriage between close relatives may or may not be valid depending on the country where the marriage was celebrated and the U.S. public opinion.
If there is evidence that the beneficiary has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws, the petition must be denied. However, the evidence of the attempt or conspiracy must be contained in the alien’s file, which may be available to inspect by submitting a FOIA request.
This issue arises when discussing the validity of the marriage. For example, oftentimes one of the spouses may have been previously married and unsure of whether their previous marriage was legally terminated. The marriage between the petitioner and the beneficiary must be valid. Legal separation is not proof of marital capacity to validate the marriage between petitioner and beneficiary. A final decree of divorce, annulment or death certificate are proof that the prior marriage is terminated. The evidence will be judged as to validity depending on the law of the jurisdiction which issued it.