Legal standards in U.S. immigration law for the recognition of online marriage

Can we get a spouse visa to the US based on online marriage?

The short answer to that question is YES!
And the long answer is:

According to U.S. immigration law, a marriage where the groom and bride are not physically present at the time of marriage can be legally valid like online wedding. However, the U.S. government will not recognize the marriage as a basis for granting a lawful permanent residence (a green card), unless the couple consummates the union after the marriage takes place. “Pre-consummation” does not count in this context.

According to Section 35 of  101(a)(35) of the Immigration and Nationality Act or “I.N.A.”,The term “spouse”, “wife”, or “husband” do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties are not physically present in the presence of each other, unless the marriage shall have been consummated. By law, the marriage must be consummated before the couple can be considered as a husband and wife.

What consummated means?

Definition from Meriam-Webster Dictionary, to make (marital union) complete by sexual intercourse consummate a marriage.

 In the context of a contract, consummation occurs when everything required to be done in relation to a contract has been accomplish. Consummation means the completion of a contract.

Therefore, proof that the marriage has been consummated after you got married online is important if you and your spouse are planning to apply for U.S. visa.

The following are some of the recommendation as a proof that your online marriage has been consummated:

  • Documentary evidence that the couple were in the same place at the same time
    • Copies of airplane ticket
    • Hotel reservation
    • Photos together
    • Bills
    • Apartment address
  • Individual affidavit or personal statement attesting to the fact of the relationship
    • Personal affidavit of the couple
    • Affidavit from neighbors and/or Barangay captain
    • Affidavit from your landlord

Your affidavit will be more reliable if you can explain that the marriage is a result of your continuous long relationship together. You can also add photos of your personal meetings before the marriage to show that the marriage is at real.

As an additional supporting document to prove that the marriage has been consummated, you can also add the birth certificate of your child, your common child after your online marriage. Children before the wedding or birth certificate of your child before your online marriage can be added but the value as an evidence could possibly not be greater than the birth certificate of your common child after your online marriage. Why? Because consummation is completion of a contract or of your marital union. Therefore, your child produced after your online marriage is a valued evidence or result of your consummation.

OK so you got married online, and consummated your marriage. How do you get a spouse visa now?

THE VISA APPLICATION – BACKGROUND

Immigrant Visa sponsored by a U.S. Citizen

To apply for an immigrant visa, a foreign spouse seeking to move to US must be sponsored by his or her U.S. citizen or lawful permanent resident’s partner and have an approved petition before applying for an immigrant visa. The sponsor (spouse living in US) begins the process by filing a petition on the foreign citizen’s behalf with U.S. Citizenship and Immigration Services (USCIS).

For further guidance and information, please carefully understand below:

Spouse

Who are considered the spouse?

A spouse is a legally wedded husband or wife who consummated their marriage.

  • Merely living together does not qualify a marriage for immigration.
  • Common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs.
  • In cases of polygamy, only the first spouse may qualify as a spouse for immigration.

If you are a U.S. citizen you have two ways to bring your foreign spouse (husband or wife) to the United States to live with you in the U.S. How?

You may apply:

  • Immigrant visa for a Spouse of a U.S. Citizen (IR1 or CR1)– An immigrant Petition for Alien Relative, Form I-130 is required. 
  • Nonimmigrant visa for spouse (K-3)– It is important to note that application for the nonimmigrant visa for spouse (K-3) who married a U.S. citizen must be filed and the visa must be issued in the country where the marriage took place. After the visa process has been completed, and the visa is issued, the spouse can travel to the United States to wait for the processing of the immigrant visa case. Two petitions are required:  Petition for Alien Relative, Form I-130, and Petition for Alien Fiancé(e), Form I-129F. 

K-3/K-4 Nonimmigrant Visas

If you are a U.S. citizen and you filed Form I-130, Petition for Alien Relative for your foreign spouse who lives abroad, you can also file a Form I-129F, Petition for Alien Fiancé(e). This is the first step for your spouse and his or her children to obtain a visa to come to the United States while you wait for USCIS to make a decision on the Form I-130.

Who are eligible to apply for K-3 visa?

  • Married to U.S. citizen
  • Beneficiary of a FORM I-30, Petition for Alien Relative filed by that you filed for your husband or wife
  • Seeks to enter the United States to await USCIS’ decision on the Form I-130

A child of your foreign spouse may be eligibles for a K-4 visa if the child is:

  • Under 21 years of age
  • Unmarried, and
  • The child of the K-3 visa applicant you file for

Immigrant Visa for a Spouse of a U.S. Citizen (IR1 or CR1)

Step 1: Filing the Petition from inside the United States

File the Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for your spouse (husband or wife). For instructions on how to file a petition, including where you should send the petition, see the USCIS website.

U.S. Sponsor Minimum Age Requirement

There is no minimum age for a U.S. sponsor (petitioner) to file a petition for a spouse. However, you must be at least 18 years of age and have a residence (domicile) in the U.S. before you can sign the Affidavit of Support (Form I-864 or I-864EZ). This form is required for an immigrant visa for a spouse and other relatives of U.S. sponsors.

Does maintaining residency in the U.S. required for the U.S. Sponsor?

As a U.S. sponsor/petitioner, you must maintain your principal residence in the United States, which is where you plan to live in the future. Living in the United States is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions. To learn more, review the Affidavit of Support (I-864 or I-864EZ) Instructions.

If you were holding a lawful permanent resident (LPR) and you are a U.S. Citizen, you must upgrade the petition from family second preference (F2) to immediate relative (IR). You can do this by sending proof of your U.S. citizenship to the National Visa Center (NVC). You should send:

A copy of the biodata page of your U.S. passport; or

A copy of your certificate of naturalization

Step 2 : NVC processing

After USCIS approves the petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number for the petition and instruct the applicant to complete Form DS-261, Choice of Address and Agent. (NOTE: If you already have an attorney, the NVC will not instruct you to complete Form DS-261.) The NVC will begin pre-processing the applicant’s case by providing the applicant and petitioner with instructions to submit the appropriate fees. After the appropriate fees are paid, the NVC will request that the applicant submit the necessary immigrant visa documents, including the Affidavit of Support, application forms, civil documents, and more. Learn more about National Visa Center visa case processing.

Step 3 : Pay Fees

Fees are charged for the following services:

Filing an immigrant Petition for Alien Relative, Form I-130 (this fee is charged by USCIS). 

Processing an immigrant visa application, Form DS-260 (see Note below)

Medical examination and required vaccinations (costs vary)

Other costs may include: translations; photocopying charges; fees for obtaining the documents you need for the immigrant visa application (such as passport, police certificates, birth certificates, etc.); and expenses for travel to the U.S. embassy or consulate for your visa interview. Costs are different from country to country and case to case.

For current fees for Department of State services, see Fees for Visa Services. For current fees for USCIS services, see the USCIS website.

Note: Fees must be paid for each intending immigrant, regardless of age, and are not refundable.

Step 4 : Required Documentation

In general, the following documents are required:

Passport(s) valid for six months beyond the intended date of entry into the United States, unless longer validity is specifically requested by the U.S. Embassy/Consulate in your country.

Affidavit of Support (I-864I-864AI-864 EZ, or I-864W, as appropriate) from the petitioner/U.S. sponsor.

Form DS-260, Immigrant Visa and Alien Registration Application.

Preview a sample DS-260

Two (2) 2×2 photographs. See the required photo format explained in Photograph Requirements.

Civil Documents for the applicant. See Documents the Applicant Must Submit for more specific information about documentation requirements, including information on which documents may need to be translated. The consular officer may ask for more information during your visa interview. Bring your original civil documents (or certified copies) such as birth and marriage certificates, as well as legible photocopies all original civil documents, and any required translations to your immigrant visa interview. 

Completed Medical Examination Forms – These are provided by the panel physician after you have completed your medical examination and vaccinations.

Step 5: Call for Visa Interview

Once the NVC determines the file is complete with all the required documents, they schedule the applicant’s interview appointment. NVC then sends the file, containing the applicant’s petition and the documents listed above, to the U.S. Embassy or Consulate where the applicant will be interviewed for a visa. The applicant, petitioner, attorney, and third-party agent, if applicable, will receive appointment emails, or letters (if no email address if available), containing the date and time of the applicant’s visa interview along with instructions, including guidance for obtaining a medical examination.

Applicants should bring their valid passports, as well as any other documentation above not already provided to NVC, to their visa interviews. During the interview process, ink-free, digital fingerprint scans will be taken. Normally, applicants will receive their original civil documents and original translations back at the time of interview.

Step 6: Medical Examination and Vaccinations

Important Notice:

While waiting and preparing for the interview, it is ideal to check any required vaccination and schedule your medical examination before your visa interview. Every applicant, regardless of age, must undergo a medical examination which must be performed by an authorized panel physician. Applicants are provided instructions by NVC regarding medical examination, including information on authorized panel physician.

Vaccination Requirements

United States immigration law requires immigrant visa applicants to obtain certain vaccinations (listed below) prior to the issuance of an immigrant visa.

Hepatitis A

Hepatitis B

Influenza

Influenza type b (Hib)

Measles

Meningococcal

Mumps

Pneumococcal

Pertussis

Polio

Rotavirus

Rubella

Tetanus and diphtheria toxoids

Varicella

Step 7: Applicant’s Interview

On the scheduled date and time of your interview appointment, go to the U.S. Embassy or Consulate with your printed visa application (DS-260) confirmation page. A consular officer will interview you (and accompanying family member beneficiaries) and determine whether or not you are eligible to receive an immigrant visa. As part of the interview process, ink-free, digital fingerprint scans will be taken.

What to bring to the Interview

Appointment Letter – The interview appointment letter you received from NVC.

Passport – For each applicant, a valid passport for six months beyond the intended date of entry into the United States

Photographs – two identical color photograph(s) for each applicant, which must meet the general Photograph Requirements.

DS-260 Confirmation Page

    Supporting Documents – original or certified copies of all civil documents you uploaded into CEAC. 

Step 8: After the Interview

If your visa is approved, you will be informed how and when your passport and visa will be returned to you.

Passport and Visa 

Your immigrant visa will be placed on a page in your passport. Please review the printed information or your visa right away to make sure there are no errors. If there are any spelling or biographical errors, contact the embassy or consulate who issued the visa immediately.

What do I need to do before I travel?

You must pay the USCIS Immigrant Fee to U.S. Citizenship and Immigration Services (USCIS) after you receive your immigrant visa and before you travel to the United States. Please visit the USCIS website for more information and to pay the fee. 

Please Note: USCIS will not issue a Permanent Resident Card (Form I-551 or Green Card) until you have paid the fee.

When should I travel?

You must travel and enter the United States before the visa expiration date printed on your visa. An immigrant visa is usually valid up to six (6) months from the date of issuance unless your medical examination expires sooner, which may make your visa valid for less than six months.

Entering the United States: Port-of-Entry

A visa allows a foreign citizen to travel to the U.S. port-of-entry and request permission to enter the U.S. Applicants should be aware that a visa does not guarantee entry into the U.S. The DHS, U.S. Customs and Border Protection (CBP) officials have authority to permit or deny admission to the U.S. Travelers should review important information about admissions and entry requirements on the CBP website under Travel. Once you have been admitted to the U.S. as a permanent resident, your Permanent Resident Card, Form I-551 (formerly called Alien Registration Card, also known as a green card) will be mailed to you.

What Is Conditional Residence?

If you have been married for less than two years when your foreign citizen spouse enters the United States on an immigrant visa, his or her permanent resident status is considered “conditional.” The immigrant visa is a conditional resident (CR) visa, not an immediate relative (IR) visa.

You and your spouse must apply together to USCIS to remove the conditional status within the ninety (90) days before the two (2) years anniversary of your spouse’s entry into the United States on his or her immigrant visa. The two-year anniversary date of entry is the date of expiration on the alien registration card (green card).

How Long Does It Take?

The length of the process differs from case to case and cannot be predicted for individual cases. Some cases are delayed because applicants do not follow instructions carefully. Sometimes the U.S. sponsor, or petitioner, cannot meet Affidavit of Support requirements. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a consular officer in the Embassy or Consulate.

How to Apply for a Social Security Number Card?

If you elected on your immigrant visa application form to receive your Social Security Number Card upon admission to the United States as an immigrant, your card will be sent via mail to the U.S. address you designated on your application form, and should arrive approximately six (6) weeks following your admission. If you did not elect to receive your Social Security Number Card automatically, you will have to apply to be issued a card following your arrival in the United States. To learn about applying for a Social Security Number Card, visit the Social Security Administration website.

IMPORTANT Information

Immigrant visa applicants are advised not make any final travel arrangements, sell their property, or quit their jobs until and unless visas are issued. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a consular officer.

Disclaimer: This article is general in nature and is not intended to be relied on as legal advice. You should seek professional advice before taking any action in relation to the subject in this article.

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