Wednesday, December 28, 2011

The Young Lovers – Sponsoring a Spouse For A Green Card When You’re Under Age


You must be at least 18 years old in the State of California to get married.  In some states, you can be as young as 14.  But what happens when a 17 year old in the State of California who is a US citizen marries their 16 year old girlfriend because there is no other way for the girlfriend to become a green card holder?  California family code prohibits marriage between spouses where one party is under the age of 18, unless a court order granting permission is obtained, which is premised on the permission of the underage spouses’ parents. But even if these procedures are not followed and the children get impulsively married in California or another state that allows underage marriage and has no state residency requirements, CIS may still recognize such an underage marriage since the marriage is deemed voidable, not void.  The marriage must be officially terminated through a nullity action in state court for it to be considered void and not legally valid.  CIS may still deny the ultimate green card petition which is partly based on discretion to deter such a practice.

Even if the procedures are followed including granting the parents’ permission, it may still be in the immigrant’s best interest to wait until after s/he is 18 years old to marry because of the Affidavit of Support requirements and bona fide marriage issue that arises in each immigration marriage petition.  Every family-sponsored immigrant must file an Affidavit of Support, which is a contract with the federal government that requires a minimum salary to be made by the sponsoring US citizen or permanent resident spouse of the immigrant. If both parties are underage, it is highly unlikely that the pair would either be able to combine incomes or use just the petitioning US citizen’s income to meet this income threshold for purposes of the immigration case.  At that young age, the immigrant or his putative spouse would likely not have the work history and tax filing history to be a sponsor. If a joint sponsor who does meet the threshold is not available to step in (such as a U.S. citizen or Lawful Permanent resident parent or adult over the age of 18 (who is a US citizen or Lawful Permanent Resident), the immigrant cannot obtain permanent residency despite marriage to a U.S. citizen. 

Another serious issue arises when an overage immigrant does not marry an underage U.S. citizen or lawful permanent resident - the allegation and potential charge of "statutory rape" or what is generally charged as "sexual assault", "lewd acts with a minor", "carnal knowledge of a minor", etc. depending on your state which can lead to the immigrant being detained, prosecuted and eventually deported. If this is your situation, consult a criminal lawyer in your state before engaging in this act with a minor and an immigration lawyer to determine what the state and federal potential consequences as there are differing provisions and defenses in each state. 

3 comments:

Anonymous said...

I am aware that an under child does not sart accumulating Illegal Status until they turn 18. But for example if she is 16yrs and get married does she start accumulating Illegal Status since she is now married.

Atty Heather said...

The act of marriage does not affect accumulation of illegal status. Unlawful presence before the age of 18 does not count for purposes of the 3 and 10 year bars even if one is married.

Anonymous said...

So what if the male is 22 and the female is 17 can they get married? Also what if the teens parents have passed away? What may we do to get married?