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NPZ Immigration Law Blog

Monday, October 28, 2013

Is my marriage a "valid marriage" for U.S. immigration purposes?


The validity of a marriage under the U.S. immigration laws frequently determines whether a foreign national may be able to obtain a family-based immigrant or nonimmigrant visa, legalize unlawful status, or file waiver of inadmissibility or deportability. The Immigration and Nationality Act (INA), the basic body of U.S. immigration laws, does not define the term "marriage". Although INA defines the term "spouse", it limits the definition to what may be excluded as unconsummated proxy marriage. Through the definition of the term "spouse" it can be inferred that a marriage, in order to be valid for immigration purposes, must be celebrated in the presence of both parties unless consummated. Although the INA does not specifically define the terms "marriage" and "spouse," it does now lays down the threshold requirement for the validity of marriage -- marriage be valid where celebrated.

Although the INA does not either define "marriage" or lay down a framework for analyzing marriages valid for U.S. immigration purpose, the same can be gleaned through the interpretation of the case law. This framework has been consistently applied by the U.S. Attorneys General, the Board of Immigration Appeals (BIA), immigration officials, and most federal courts to determine the validity of marriage under the INA. The same framework has been laid down in the Department of State's Foreign Affairs Manual. The framework for analyzing the validity of any marriage for U.S. immigration purposes consists of the following three components: (1) Laws of the place where the marriage took place or was celebrated; (2) Laws of the State of residence or proposed State of residence in the United States; and (3) bona fides of the marriage for immigration purposes. The marriage to be valid under the U.S. immigration laws needs to satisfy all three components.

To satisfy the first component, the underlying principle is that the law of the place of marriage celebration controls. If the law of the place of marriage is complied with and the marriage is recognized, then the marriage is deemed to be valid for immigration purposes. Immigration officials and federal courts insist that a marriage meets the procedural and substantive requirements of the state or country where the marriage was "celebrated," whether those requirements involve state licensing, religious recognition or even no "celebration" at all in the case of "common law" marriage (marriages based on cohabitation without an official ceremony or registration). Thus, a religious marriage, uncle-niece marriage or first-cousin marriage is considered valid for immigration purpose if it is recognized by the sovereign authority in the country or state as valid provided that it satisfies the requirement of the other two components of the framework.

Once a marriage passes the threshold inquiry regarding its validity where celebrated, the BIA and Federal Courts generally proceed with the presumption that the marriage is valid everywhere unless it violates the public policy of the couple's state of domicile or intended state of domicile, "distinctly expressed" in state legislation. To be valid for U.S. immigration purposes, the marriage should not violate the strong public policy expressed in the criminal law of its state of domicile. To comply with the second component of the framework, it is pertinent to check whether the state's criminal law expressly forbids the couple from both marrying and living together or just the later. For instance, if the law of state of proposed residence only forbids certain type of the marriage such as uncle-niece marriage or first-cousin marriage but does not expressly prohibits the couple living together, the marriage will be held valid for the immigration purpose provided the marriage meets the procedural and substantive requirements of the state or country it was celebrated. It is also important to determine whether the couple domicile state or intended state of domicile expressly prohibits evading the state's law by leaving the state for the purpose of being married, and with the intention of returning after the celebration of marriage. If that is the case, the couple can be held criminally liable for evading the state law.

Finally, even if a marriage is legally valid where celebrated and there is no strong public policy exception to recognition of that category of relationship, U.S. immigration officials look at the particular facts of a couple's life together in order to determine whether their individual marriage is bone fide for immigration purposes. This is a practical concession to the fact that U.S. immigration benefits are so desirable that some people are willing to enter into "fraudulent" marriages merely for the purpose of obtaining those immigration benefits. While legally valid for other purposes, these marriages are not valid under the INA.

Although the United States and all of its constituent states unanimously recognize the general rule that a marriage, valid where celebrated, is valid everywhere, the rest of two variables of the above-detailed framework should also be satisfied. Thus, in evaluating the validity of marriage for immigration purposes, although the prime focus is on the law of the state or country where the marriage was allegedly contracted, the couple's relationship should not violate the strong public policy expressed in the criminal law of its state of domicile or intended state of domicile, and the marriage should meet the bona fide requirements.

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