Moving to a new country is one of life’s biggest events. Whether one is relocating to take up a temporary work assignment, or permanently immigrating, one’s spouse (or life partner) is normally essential to the equation and will often play a vital supporting role in the process. It is, therefore, essential to ensure in advance that the immigration laws of the country in question recognize this important individual as a proper “spouse” for immigration or visa purposes.
The United States currently takes a narrow view on the definition of a spouse for immigration purposes. The result of this is that spouses and partners in many not-uncommon types of marriages and relationships are entitled only to limited – if any – immigration benefits. In this article, we review the criteria used by the United States government to determine whether it will recognize a spouse for immigration purposes, as well as how said criteria applies to several marital situations.
THE THREE PRONG TEST
United States Citizenship and Immigration Services (“USCIS”) and the United States Department of State (“DOS”) both apply a three-prong test to assess the validity of a marriage for immigration purposes. The following three-prong test is applied both in assessing eligibility for a derivative non-immigrant visa (e.g., L2 visa, E2 visa, H4 visa, etc.) or an immigrant visa, as well as in matters of family-based sponsorship by a United States Citizen or Legal Permanent Resident:
Prong 1: Was the marriage valid in the place of celebration?
USCIS and DOS both judge the validity of the marriage based on the laws of the place where the marriage was celebrated. A marriage that is not valid in the place where it was celebrated will not be recognized as a marriage for the purposes of receiving immigration benefits.
By way of example, a marriage in Thailand must be registered with the civil registrar, the Amphur. A religious ceremony alone does not create a valid marriage in Thailand. Thus, although a religious ceremony may be sufficient to register a marriage in certain states in the United States, if the marriage that took place in Thailand was only a religious ceremony, without the required civil registration, the spouse will not be eligible for United States immigration benefits due to the invalidity of the marriage in Thailand.
By contrast, informal and tribal ceremonies that would not rise to the formality normally required to register a marriage in the United States may qualify for immigration benefits if the ceremonies meet all of the legal requirements to be valid in the country performed. This element comes up often with common law marriages, which are discussed later in further detail.
There may be the opportunity to cure an invalid marriage and obtain immigration benefits. In an opinion by the General Counsel for the former Immigration and Nationality Service, now USCIS, an Iranian mosque marriage that was performed in Turkey was found not to be valid under the laws of Turkey; however, a subsequent civil marriage validated the marriage in Turkey, thus rendering the spouse eligible for immigration benefits. (See INS General Counsel Legal Opinion No. 91-58, File No. CO831 (July 25, 1991)). Marriages that were previously ineligible for United States immigration benefits may even be cured by subsequent laws in the relevant country that cause the previously defective marriages to be recognized as valid in that country.
This approach also applies in determining whether a prior divorce was valid; USCIS and DOS will look to whether the subsequent remarriage was considered valid in the jurisdiction where it took place.
Prong 2: Is there a strong public policy against this type of marriage in the state of domicile or, for couples who marry abroad, the state of intended domicile?
USCIS and DOS may refuse to recognize a spouse for purposes of immigration benefits in some exceptional circumstances when the marriage is contrary to public health or morals, including plural marriages and marriages between close relatives. Each of these situations requires complex analysis and is discussed later in further detail.
Prong 3: Is the marriage bona fide as defined by immigration law?
The United States Congress may prescribe a federal standard under which certain marriages, although valid at the place of celebration, are not recognized for immigration benefits. Such federal standards also disregard and override any public policy in favor or against such marriages in the state of current or intended domicile.
The most notable of such Congressional standards is the 1996 Defense of Marriage Act (DOMA), which defines marriage as the legal union between one man and one woman. Under DOMA, applications for immigration benefits based on a marriage of two persons of the same-sex have been uniformly denied, regardless of whether the marriage was entered into in a country that legally recognizes same-sex marriages. DOMA also supersedes any state law in regards to immigration benefits and restricts immigration benefits regardless of whether the same-sex couple will be living in a US state that recognizes same-sex marriage. Visa options for same-sex partners and spouses are discussed later in further detail.
Immigration laws also prescribe that proxy marriages or marriages for the sole purpose of obtaining immigration benefits (“sham marriages”) are not recognized as bona fide marriages. A proxy marriage involves a ceremony where the marrying individuals are not in each other’s physical presence, but rather are married by picture, telephone, radio, television, or similar. Such marriages may not entitle the spouse to immigration benefits even if it is considered a valid marriage in the place of performance. However, proxy marriages may lead to immigration benefits if it can be shown that the couple consummated the marriage through cohabitation following the ceremony, thus resulting in a bona fide marriage under US immigration laws.
A marriage that is entered into by parties without the intention to live as man and wife, but rather to obtain immigration benefits, will not be considered a bona fide marriage for the purpose of obtaining such benefit regardless of being otherwise valid. Such sham marriages not only prevent the foreign spouse from obtaining immigration benefits, but in cases where a United States Citizen or Legal Permanent Resident files an immigrant petition based on a sham marriage, the United States Citizen or Legal Permanent Resident may face criminal sanctions including imprisonment and fines.
The main consideration by USCIS when evaluating a potential sham marriage is whether the parties intended to establish a life together at the time of the marriage. USCIS looks to the conduct of the parties for this determination, including evidence of courtship, the circumstances of the wedding ceremony, shared residences, insurance policies, bank accounts, and property agreements. Other factors often considered include large age differences, language barriers, and other religious and cultural differences.
USCIS does not, however, consider the following factors to be automatically indicative of a sham marriage if the marriage is otherwise valid and subsisting: 1.) Cohabitation of the parties to the marriage, but without sexual relations because of age or illness; or, 2.) The legal or physical separation of the parties, without dissolution of the marriage. A separated spouse may still be entitled to immigration benefits if there exists an intention to reconcile.
THE THREE PRONG TEST IN PRACTICE
Looking now to the application of the three-prong test, following is an examination of current USCIS and DOS policy on immigration benefits for same-sex couples, transgender spouses, cohabitating partners and common law spouses, plural marriages, and incestuous marriages:
I. Same-Sex Couples
USCIS and DOS will deny an application for immigration benefits as a spouse in a same-sex marriage or civil partnership based on the Defense of Marriage Act (DOMA), as of the date of this article.
Section 3 of DOMA states in relevant part that:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
In February 2011, Attorney General Eric Holder announced that the Obama Administration had determined that Section 3 of DOMA was unconstitutional and that the Department of Justice would no longer defend it in federal court challenges. However, the Department of Justice must still enforce DOMA pending a legislative repeal of the act or similar final judicial decision. Numerous and significant court cases are currently ongoing regarding this issue, while a number of legislative acts have also been introduced to the United States Congress. However, at the time of this article, DOMA remains controlling.
Based on DOMA, USCIS and DOS stand firm that any derivative visa, immigrant sponsorship, cancellation of removal, fiancé(e) visas, or waiver application dependent upon a spousal relationship, filed based on a same-sex-marriage or civil partnership, will be denied. Furthermore, USCIS and DOS will make an immediate decision on such matters, per standard processing times. USCIS and DOS will not honor requests that USCIS and DOS hold filed cases until the resolution of DOMA litigation.
A same-sex spouse must therefore seek alternative visa options to accompany a spouse holding a non-immigrant visa or to join his or her United States Citizen or Legal Permanent Resident spouse in the United States.
A subsection of the B-2 visitor visa provisions authorize DOS to issue special visitor visas to the same-sex spouse or partner of a foreign national that holds a long-term non-immigrant visa. This type of visitor visa contains a particular annotation that the holder is the same-sex spouse or partner to ease questioning and scrutiny by officers at the port of entry to the United States. However, like ordinary visitor visas, the same-sex spouse or partner will only be given authorized entry to the United States of up to six (6) months at a time. Stays for longer than six (6) months will need to be authorized by filing applications to extend status in the United States, with the associated fees. Furthermore, the same-sex spouse or partner is not authorized to work in the United States, whether or not the work is paid, and regardless of whether the work is for a United States company or foreign company. If the same-sex spouse or partner wishes to work in the United States, he or she will need to obtain an appropriate visa in his or her own right.
For same-sex spouses or partners of United States Citizens or Legal Permanent residents, this subsection of the visitor visa regulations only applies if the United States Citizen or Legal Permanent Resident normally lives overseas, but is traveling to the United States for a temporary period of time.
This visa subsection does not cover the same-sex spouse or partner of a United States Citizen or Legal Permanent Resident that normally resides in the United States. In adjudicating all visitor visa applications, DOS must determine that the applicant’s visit is temporary and that the applicant has significant ties to their home country. A marriage to a United States Citizen or Legal Permanent Resident residing in the United States, even when the marriage is not recognized by United States immigration laws, may result in the denial of a visitor visa application by DOS based on the presumption by DOS that the applicant will not return to their home country, but will rather remain in the United States with their spouse or partner.
Same-sex spouses or partners of United States Citizens and Legal Permanent Residents will need to obtain an appropriate visa in their own right. Some of the options to do so could include investing in a business in the United States, a transfer from a foreign employer to an affiliated United States employer, finding United States employment sponsorship, or enrolling in an approved education or training course. Each of these options needs to be fully evaluated against the qualifications and circumstances of the same-sex spouse.
II. Transsexual Marriage
A marriage in which the two parties were born the same-sex, but where one party underwent gender reassignment surgery, may entitle the spouse to immigration benefits. The Board of Immigration Appeals held in the Matter of Lovo-Lara that DOMA did not apply to transsexuals in a heterosexual relationship based on post-operative gender. Therefore, the analysis of whether the marriage is recognized turns back to the validity in the jurisdiction of the marriage.
The controlling test in determining whether such marriages are recognized for immigration purposes is whether the marriage was considered a valid and heterosexual marriage in the jurisdiction where the marriage occurred. The marriage in the precedent case of Matter of Lovo-Lara, as an example, occurred in the state of North Carolina. The transsexual spouse obtained a permitted change of the sex on her birth certificate following her gender reassignment to female and then married her male husband. The court noted that North Carolina registered their marriage as legal, but that same-sex marriage is not legal in North Carolina. Thus, the marriage was both considered heterosexual and valid in North Carolina, and the spouse was entitled to immigration benefits.
A number of US states, as well as foreign countries, have legal precedent as to whether such a marriage is valid and heterosexual in that jurisdiction. In reviewing whether the marriage is valid and heterosexual, it is important to note that some jurisdictions, including Illinois and Texas, allow a post-operative transsexual to change the gender on their birth certificate, but do not recognize the gender reassignment as changing the individual’s sex for purposes of marriages. Also, a marriage in which one party is a post-operative transsexual may be recognized in some jurisdictions as a valid marriage, but still as a same-sex marriage. The registered same-sex marriage would not recognized for immigration purposes per DOMA.
In many jurisdictions the statute is not clear or there is no binding precedent. In such case, USCIS may be satisfied as to the validity of the marriage through submission of a court order, official record, or statement from an appropriate government agency indicating that the gender reassignment surgery has resulted in a change of the person’s legal sex under the law of the place of the marriage.
Accordingly, the marriage of two parties who were born the same-sex may be recognized for immigration benefits if all of the following are satisfied:
1. One individual underwent gender reassignment surgery; and
2. The person who underwent gender reassignment surgery has taken whatever legal steps exist and may be required to have the legal change of sex recognized for purposes of marriage under the law of the place of marriage; and
3. The marriage is recognized under the law of the jurisdiction of marriage as a valid and heterosexual marriage.
III. Common Law Marriages
An actual marriage between two people made without formal registry, often known as a common law marriage, is recognized for purposes of immigration benefits only if common law marriages are recognized in the jurisdiction where the unregistered marriage took place. In reviewing the validity of these marriages, USCIS and DOS will look first to determine if common law marriages were recognized by the jurisdiction at the time of unregistered marriage, and then as to whether the parties fulfilled all of the requirements of the jurisdiction to create a common law marriage, such as mutual agreement, cohabitation, etc.
USCIS and DOS will also look to ensure that the recognition of the common law marriage by the jurisdiction bestows all of the same legal rights and duties as individuals in lawfully contracted marriages. Factors for consideration include, but are not limited to, whether the relationship can only be terminated by divorce and if there is an intestate distribution of an estate.
Most US states no longer recognize common law marriages. However, unless the jurisdiction has invalidated common law marriages recognized under former regulations, USCIS and DOS will rely on whether the common law marriage was recognized at the time of its inception, regardless of whether the jurisdiction is currently recognizing new common law marriages.
IV. Cohabitating Partners
Cohabitating partners who have not entered into a valid, registered marriage and are not in a recognized common law marriage are not eligible for the immigration benefits of a spouse. Similar to same-sex partners, heterosexual partners cohabitating in a relationship akin to marriage are eligible to apply for a special visitor visa to accompany a partner travelling to the United States with a long-term non-immigrant visa. The cohabitating partners of a United States Citizen or Legal Permanent Resident who normally resides outside of the United States, but is travelling only temporarily back to the United States is also eligible to apply for this special visitor visa.
This special visitor visa authorizes entry to the United States for up to six (6) months, with extensions of up to six (6) months at a time possible from within the United States upon further application to USCIS. If the cohabitating partner wishes to work in the United States, he or she will need to obtain the appropriate United States visa in his or her own right.
It is unlikely that DOS will issue a cohabitating partner of a United States Citizen or Legal Permanent Resident a visitor visa if the United States Citizen or Legal Permanent Resident is normally residing in the United States, due to the presumption that the partner will not return to their foreign residency. Cohabitating partners in these situations will either need to obtain an appropriate long-term non-immigrant visa or enter into a valid marriage to obtain immigration benefits.
V. Plural (Polygamous) Marriages
United States law does not recognize plural (i.e. “polygamous”) marriages, regardless of whether the marriages in question are legal and recognized in the jurisdiction of marriages. Thus, a marriage that is entered into before a previous marriage of either party is ended by divorce, annulment or death is void and invalid for US immigration purposes. (Note: Disappearance of one spouse may also constitute the legal end of a marriage in certain jurisdictions.)
In cases where the soundness of the divorce is in question, USCIS and DOS look to whether the first marriage was fully and legally terminated based on the law of the jurisdiction of the termination and whether the second marriage was regarded as lawful at its place of celebration, as a monogamous marriage. For example, in Matter of Moncayo, the Board of Immigration Appeals found that a divorce decree that was issued in Ecuador in the absence of one party to the divorce was not valid in New York, thus the party’s remarriage in New York was not valid.
Even when the intent is for a monogamous marriage, individuals seeking immigration benefits as, or for, a spouse that has entered into a previous marriage should ensure that the prior marriage was properly terminated. If the prior marriage was not properly terminated and the current marriage is void, the beneficiary/spouse will not be eligible for immigration benefits until the prior marriage is properly terminated and a valid marriage occurs.
Whilst polygamy is legal and practiced in many customs and cultures around the world, it is illegal in the United States and immigration law recognizes only the first of the plural marriages. The discussion of immigration benefits in such marriages will be discussed from the perspective of one husband with plural wives; however, the discussion applies identically to a situation of one wife with plural husbands.
Only the first wife of a polygamist husband who obtains a long-term non-immigrant visa to the United States, such as the L-1 visa, may obtain a derivative non-immigrant visa, such as the L-2 visa. It is not simply that only one wife may accompany the polygamist husband, it is that only his first wife is eligible for a derivative visa as the marriages to later wives are void and invalid under United States immigration law.
The second wife and any later wives will need to qualify for a long-term non-immigrant visa in their own right, as the principal applicant, to able to accompany their husband to the United States on a long-term basis. DOS also grants officers at United States Embassies and Consulates the discretion to issue visitor visas to plural wives to accompany their husband.
While the husband and the first wife are eligible for non-immigrant visas, the Immigration and Nationality Act § 212(a)(10)(A) renders polygamists ineligible for immigrant visas. This section only renders individuals that practice polygamy inadmissible and it does not extend to individuals who merely believe in or advocate polygamy without themselves entering into plural marriages. A polygamist that wishes to become a Legal Permanent Resident of the United States will need to divorce all wives besides his first and abandon the practice of polygamy before commencing the residency process. DOS consular officers are instructed to be suspicious of former polygamists who divorce plural wives just before moving forward with the residency process and must review the matter to ensure that the former polygamist will not resume the practice following issuance of Legal Permanent Resident status.
VI. Incestuous Marriages
An incestuous marriage between close relatives will only be recognized for immigration benefits if the marriage was valid at the place of origin and the cohabitation of the parties at their intended residence in the United States will not incur criminal punishment. When looking at the factor of the intended residence, the controlling factor is not whether the state performs such marriages, but rather if the state deems such marriages or relationships illegal. Marriages by cousins and by an uncle and niece are not illegal in many states and have led to immigration benefits.
All of the above-discussed situations create complex and often challenging immigration cases that must be handled with care. USCIS and DOS do not offer guidance or specific instructions on the appropriate presentation of these cases, nor should it be assumed that USCIS and DOS are fully practiced in such situations. The guidance of immigration lawyers who are well-versed in such cases will help to ensure that the appropriate visa category is sought and that the legal eligibility for the immigration benefit, with appropriate documentation, is thoroughly demonstrated to USCIS and DOS for the most efficient processing.
orlando Ortega-Medina is lead counsel for the US business immigration law firm of Ortega-Medina & Associates, headquartered in San Francisco, California. The firm also maintains an EU gateway office in London, UK. Mr. Ortega-Medina has particular expertise and insight into complex visa cases, and is frequently engaged by other counsel to troubleshoot visa denials.