When immigrating to the United States through a spousal relationship, it’s essential to prove your marriage is real. Thus, it’s important to understand how the U.S. government determines if you have a valid marriage for immigration purposes. Because certain permanent residents may become U.S. citizens in just three years if married to a U.S. citizen, the legality of marriage is also vital in these naturalization cases. This article takes a closer look at marriage immigration law and policies from U.S. Citizenship and Immigration Services (USCIS).
The location of the marriage, status of past marriages, type of marriage, and who performed the marriage are all factors that affect the validity of your marriage. The most fundamental rule is that your marriage must be valid in the place where the marriage was celebrated. Under the “place-of-celebration rule,” USCIS generally considers a marriage valid for immigration purposes if the marriage was valid under the law of the jurisdiction in which it was performed. The location may be the United States or abroad. There are exceptions.
Marriage Types USCIS Will Not Recognize
There are cases that USCIS does not recognize marriages, even if they are valid in the place of celebration. Types of marriages that USCIS may consider invalid include:
- Polygamous marriages;
- Certain marriages that violate the strong public policy of the state of residence of the couple;
- Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration;
- Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated; or
- Relationships entered into for purposes of evading immigration laws of the United States.
People with Previous Marriages
If you were married to another person prior to your current marriage, you must be able to prove that all prior marriages ended before your current marriage. A marriage can end through death, divorce or annulment.
Death of a Previous Spouse
If your previous marriage ended through the death of a spouse, you’ll need to show evidence that the death occurred before your current marriage began. Typically, you can use a death certificate as proof.
Divorce or Annulment
Your marital status may be terminated by a judicial divorce or by an annulment. A divorce or annulment breaks the marital relationship. You’ll need to show that the divorce or annulment was finalized before marrying your current spouse. Generally, applicants may use a divorce decree or annulment decree as evidence the marriage ended before the marriage date on a marriage certificate.
The validity of a divorce outside the U.S. depends on the interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried. If the divorce is not final under the foreign law, the current marriage is not valid for immigration purposes.
A 2013 United States Supreme Court decision clarified the definition of marriage to include marriages with two persons of the same sex. Therefore, USCIS determines the validity of a same-sex marriage by the place-of-celebration rule, just as they do for an opposite-sex marriage. Under the law, same-sex marriages are treated identically.
If the state of residence has a public policy refusing to recognize same-sex marriage, this will not result in a same-sex marriage being considered invalid for immigration purposes if it is valid in the place of celebration. In other words, it is acceptable for the couple to travel to a country and wed where same-sex marriages are legal.
Proxy marriages occur when one member of the couple isn’t physically present for the marriage. Generally, another person takes their place where the ceremony is held. Typically, the officiant is in the place where the ceremony is held.
USCIS will only recognize proxy marriages if the marriage is consummated. In other words, the couple must have had sexual relations after the marriage took place. This is an important distinction, because consummation prior to the marriage does not meet the criteria.
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Common Law Marriages
USCIS will generally recognize common law marriages if the marriage was valid and recognized by the state in which the marriage was established.
In order for a common law marriage to be valid for immigration purposes:
- The couple must live in that jurisdiction that recognizes common law marriages and considers the couple to be married; and
- The couple must meet the qualifications for common law marriage for that jurisdiction.
This can be complicated territory. If you have a common law marriage and want to know it’s validity for the purposes of immigration, it’s best to have an immigration attorney analyze your specific situation.
A Marriage is More Than a Certificate
Depending on the specific immigration benefit you are requesting, USCIS will evaluate your marriage differently. A valid marriage for the purposes of obtaining a green card is slightly different than marriage validity for U.S. citizenship. Either way, you must be able to show that your marriage is genuine.
When preparing your USCIS application, CitizenPath can help you satisfy these requirements. CitizenPath’s affordable, online immigration service makes preparing the forms easy. You’ll also get customized filing instructions based on your answers. Our instructions will explain exactly which supporting documents to submit with your application. Learn more >>
Valid Marriage for a Green Card
When applying for a green card based on marriage to a U.S. citizen or permanent resident, you’ll need to submit proof that you have a “bona fide marriage.” In other words, USCIS wants to see evidence that demonstrates you have a real relationship and intend to build a future together. It’s more substantial than just a marriage certificate. The relationship must be based on more than acquiring a green card.
Marriage Validity for Naturalization
When permanent residents apply for U.S. citizenship based on marriage to a U.S. citizen, it’s necessary to demonstrate that the couple is married and “living in marital union.” In fact, the applicant must live in marital union with his or her citizen spouse for at least three years immediately preceding the date of filing the naturalization application (Form N-400). They must continue to live in marital union up until the applicant takes the oath ceremony. USCIS considers an applicant to live in marital union with his or her citizen spouse if the applicant and the citizen actually reside together.
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A separation, legal or informal, will likely sever this marital union requirement for naturalization. A separation could also invalidate a qualifying relationship for a pending green card application. Therefore, it’s important to consult with an immigration attorney if you have a pending application and your relationship with a spouse is deteriorating.
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