The validity of a marriage under U.S. immigration laws can determine whether a foreign national is be able to obtain a family-based immigrant or nonimmigrant visa, legalize unlawful status, or file a 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” nor “spouse” in strict terms nor does it require that the two individuals meet the standards of either definition for the purpose of determining the validity of a marriage. Instead, the INA requires an analysis of the circumstances surrounding the marriage to determine that the marriage fulfills the minimum of three (3) components necessary for a valid marriage. The purpose of this article is to explain the minimum threshold requirements of marriage for immigration purposes. For the most part, abiding by the laws of the place of marriage seem to trump most, but not all, other governing bodies to determine marriage.
To provide a historical perspective, it is important to note that the minimum threshold for determining the validity of a marriage was established by the INA as a result of the interpretation of case law. This framework has been consistently applied by the U.S. Attorney 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 (DOS) 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 land where the marriage takes place ultimately trumps any other governing body elsewhere in the world, with certain limitations. 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 purposes 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 latter. 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 prohibit the couple living together, the marriage will be held valid for imm