Cecily Zamora
In the United States, common-law marriages are recognised in some states and can be used to petition for a spouse's green card status. Common-law marriages are valid for immigration purposes if the couple lives in a jurisdiction that recognises such marriages, and meets the qualifications for common-law marriage in that jurisdiction. To petition for a common-law spouse in the US, the petitioner must first file a Form I-130, Petition for Alien Relative, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). Once approved, the petition is sent to the National Visa Center (NVC), which assigns a case number and instructs the applicant to complete Form DS-261, Choice of Address and Agent. The NVC then requests the necessary immigrant visa documents, including the Affidavit of Support, application forms, civil documents, medical examination forms, and photographs. It's important to note that the process of petitioning for a common-law spouse in the US can be complex and may vary depending on individual circumstances. Seeking legal advice or consulting official government sources is recommended to ensure accurate guidance.
| Characteristics | Values |
|---|---|
| What is a common-law partner? | A common-law partner is someone who is in a marriage-like relationship with their partner, with a significant degree of attachment, and has lived with them for at least 12 consecutive months. |
| Common-law marriage recognition | Common-law marriages are recognized in some states, and USCIS recognizes them for immigration purposes if the marriage was valid in the state it was established. |
| Petitioning process | The petitioner must file a Form I-130, Petition for Alien Relative, with the Department of Homeland Security, USCIS. If approved, the petition is sent to the National Visa Center, which assigns a case number and provides instructions for further forms and fees. |
| Requirements for petitioners | The petitioner must be at least 18 years old and have a residence in the U.S. They must also maintain their principal residence in the U.S. and sign an Affidavit of Support. |
| Requirements for the beneficiary spouse | The spouse must provide civil documents, such as birth and marriage certificates, completed medical examination forms, and photographs. |
| Permanent residency | If the petitioner is a U.S. citizen, the spouse may fill out Form I-485 to adjust their status to permanent residency. If the petitioner is a lawful permanent resident, the spouse must wait for a visa number to become available. |
| Same-sex relationships | Common-law marriages in same-sex relationships are recognized in the same way as opposite-sex marriages, as long as the jurisdiction where the marriage took place recognizes them. |
| Children | Children under 18 qualify under the petition if their parents wed before their 18th birthday. Step-children can also be petitioned by their step-parents if the marriage occurred before the child turned 18. |
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What You'll Learn
Common law marriage state
Common-law marriage, also known as "marriage without formalities" or "informal marriage", is a legally recognised union in some US states. It is a form of marriage that does not require a formal wedding, marriage license, or certificate. While it is not recognised nationally, as of 2024, seven states and Washington DC permit common-law marriages. These include:
- Colorado
- Iowa
- Kansas
- Montana
- New Hampshire
- Texas
- Utah
Each of these states has its own specific requirements for a relationship to constitute a common-law marriage. For example, in Texas, couples can file a legal "Declaration of Informal Marriage" or meet a three-prong test, demonstrating an agreement to be married, cohabitation, and representation to others that they are married. In Kansas, couples must have the legal capacity for marriage and mutually intend to live as husband and wife, presenting themselves as such within society.
It is important to note that some states have abolished common-law marriages but still recognise those that occurred before a certain date. For instance, Georgia recognised common-law marriages until January 1, 1997, and Ohio until October 10, 1991.
To petition for a common-law spouse who is a foreign citizen, US citizens and lawful permanent residents (LPR) must fill out and submit Form I-130, Petition for Alien Relative, to USCIS. If the petitioner is an LPR, the spouse may apply for permanent residency when a visa number becomes available.
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Validity of marriage
The validity of a marriage in the US is dependent on a few factors. Firstly, the place of celebration rule determines the validity of a marriage, including marriages between persons of the same sex. This means that the laws of the jurisdiction where the marriage took place are reviewed to see if the marriage is recognised and legally valid.
Common-law marriages are recognised in the US, but only in certain states. These include Colorado, Iowa, Kansas, Montana, Rhode Island, Oklahoma, Texas, and the District of Columbia. Utah, South Carolina, and New Hampshire have limited recognition of common-law marriage. For example, in Utah, common-law marriages must be validated in a judicial proceeding, and New Hampshire only recognises common-law marriage for the purpose of inheriting property.
For a common-law marriage to be valid for immigration purposes, the couple must live in the jurisdiction that recognises common-law marriage and meet the qualifications for that jurisdiction. The length of time between entering the country and the marriage can affect the onus placed on the couple to disprove fraud. Marrying within 30 days of entry may indicate that the intent of entering the country was for marriage, whereas a marriage after 60 days requires a burden of proof of its validity.
Conduct that can demonstrate an intention to be in a common-law marriage includes presenting yourselves as a married couple to family, friends, and the community, and using words like "husband," "wife," or "spouse" when referring to each other. However, cohabitation is not as important as it once was, and judges will weigh all the evidence, including how family and friends view the relationship, to determine if a couple is in a valid common-law marriage.
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Sponsorship requirements
The requirements for sponsoring a common-law partner for a green card in the United States vary depending on the laws of the state in which the marriage was established. Common-law marriages are recognised in some states, and the parties are considered married. For a common-law marriage to be valid for immigration purposes, the couple must live in a jurisdiction that recognises such marriages and meet the qualifications for that jurisdiction.
If the common-law marriage is valid, a U.S. citizen or permanent resident can petition for their partner to obtain a green card. The key requirements are that the couple has lived together and held themselves out to friends, family, and the community as being married, without formally registering their marriage.
To petition for a common-law spouse, the sponsor must be at least 18 years old and have a residence in the U.S. They must also sign an Affidavit of Support, agreeing to financially support their spouse. The sponsor must also demonstrate their status as a lawful permanent resident with a copy of their Green Card (Form I-551) or a foreign passport with a stamp indicating temporary evidence of permanent residence.
The process of sponsoring a common-law partner involves filing a Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS). After approval, the petition is sent to the National Visa Center (NVC), which assigns a case number and provides instructions for completing Form DS-261, Choice of Address and Agent. The applicant must then submit the necessary immigrant visa documents, including the Affidavit of Support, application forms, civil documents, medical examination forms, and photographs.
It is important to note that the validity of the marriage must be established. This is generally determined by the law of the place where the marriage was celebrated. A marriage certificate is typically considered prima facie evidence of a legally valid marriage. However, USCIS does not recognise certain relationships as marriages, even if they are valid in the place of celebration, such as civil unions or domestic partnerships.
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Permanent residence
In the US, common-law marriages are only recognized in a handful of states, and the specific requirements vary by state. However, even if the couple has moved to a state that does not recognize common-law marriages, the marriage may still be considered valid for immigration purposes. To petition for permanent residence based on a common-law marriage, the US citizen or permanent resident spouse must file Form I-130, Petition for Alien Relative. This form requires various documentation, including passport-style photos, evidence of legal name changes, and copies of all divorce decrees from previous marriages. If the common-law spouse is granted permanent residence based on the marriage, their status will initially be conditional. To remove the conditions, the couple must apply together using Form I-751 within 90 days before the expiration date on the conditional resident card.
In addition to the standard process, there are a few other pathways to permanent residence for common-law spouses in certain situations. If the US citizen sponsor is in the military, special conditions may apply. If the couple has children together, the common-law spouse may be eligible for follow-to-join benefits, which streamline the visa application process. Finally, if the common-law spouse is a victim of domestic abuse, they may be able to self-petition for permanent residence under the Violence Against Women Act (VAWA).
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Visa applications
In the United States, common-law spouses may qualify as spouses for immigration purposes depending on the laws of the country where the common-law marriage occurs. The first step is to file a Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for your spouse to immigrate to the United States. This can be done either electronically or through the traditional paper process via mail.
If the petitioner is a U.S. citizen, and the beneficiary spouse is already in the United States through lawful admission or parole, then the beneficiary spouse may also fill out Form I-485, Application to Register Permanent Residence or Adjust Status, at the same time as the Form I-130. If the petitioner is a U.S. Lawful Permanent Resident (LPR) and the beneficiary spouse is already in the U.S. through lawful admission or parole, then the beneficiary spouse may apply to adjust their status to permanent residency only after a visa number becomes available.
If the petitioner has been married for less than two years when their foreign citizen spouse enters the U.S. on an immigrant visa, their permanent resident status is considered "conditional". In this case, the petitioner and foreign citizen spouse must apply together to USCIS with the Form I-751 to remove the conditional status within the ninety days before the two-year anniversary of the spouse's entry into the U.S. on their immigrant visa.
During the visa interview, applicants should bring their valid passports, original civil documents (or certified copies) such as birth and marriage certificates, legible photocopies of all original civil documents, and any required translations. Completed Medical Examination Forms are also required, which are provided by the panel physician after completing the necessary medical examination and vaccinations.
It is important to note that USCIS recognizes common-law marriages for purposes of naturalization if the marriage was valid and recognized by the state in which it was established. The legal validity of a marriage is generally determined by the law of the place where the marriage was celebrated, and the burden is on the applicant to establish that they have a valid marriage with their U.S. citizen spouse.
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Frequently asked questions
The first step is to file a Petition for Alien Relative, Form I-130, with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for your spouse to immigrate to the United States.
After USCIS approves the petition, it is sent to the National Visa Center (NVC). Once received, the NVC will assign a case number and instruct the applicant to complete Form DS-261, Choice of Address and Agent.
The immigrant visa application requires two 2x2 photographs, civil documents such as birth and marriage certificates, completed medical examination forms, and Form DS-260, Immigrant Visa and Alien Registration Application.
