This month, we have arrived at the meat and potatoes of immigrant visas – marriage-based petitions. This is a large and extremely complex topic so we will strip it down to the very basics and attempt to simplify it as much as possible. This will be the first of several articles diving into this topic. We will begin with the first hurdle to overcome – getting married.
You may wonder, why start with this topic? In your mind, getting married might be as simple as going down to the courthouse, getting a license, an officiant, signing, and getting your marriage certificate in the mail. Indeed, getting married CAN be that simple. However, in order to petition your spouse, your marriage needs to be valid for immigration purposes. Not all marriages are. Generally speaking, if your marriage is legal and valid in the place where the marriage took place, whether in the U.S. or overseas, (this also includes common law marriages), then your marriage is considered valid for immigration purposes. This is known as the Doctrine of Full Faith and Credit. However, there are exceptions to this rule.
The following are examples of marriages that are not valid for immigration purposes, even if they are legal where they occurred.
1. Marriages that occurred without both parties physically present at the marriage ceremony, unless the marriage has been consummated.
Under the INA section 101 (a)(35), your marriage is not valid if you were not present during the ceremony unless the marriage has been consummated. In many cultures, a valid marriage can be entered into without the physical presence of one of the parties. This is known as a marriage by proxy. However, these types of marriages go against U.S. public policy and are therefore, not considered valid, unless consummated. Consummation can be shown through pregnancy or birth of a child born of the relationship.
2. Marriages that occurred while one party was still married to another party. In the U.S. this is considered polygamy. The law requires proof that, if either party was married before, the previous marriage was legally terminated before the new marriage was entered into.
3. Marriages between relatives. Some marriages among relatives are considered void, but some others can be valid. This is a very nuanced issue and if you are in this situation. You should consult with an experienced immigration lawyer.
4. Marriages with minors. Although controversial, USCIS will consider some marriages with minors valid if they are valid in the place where they took place unless it violates public policy. For example, in situation where one of the parties is under the age of consent of the state of intended residence, the petition would likely be denied under INA 212(a)(3)(A)(ii) because the government would argue the person is intending to engage in an illicit activity. Another violation of public policy would be when either party was forced to marry. Finally, in cases where the petitioner is a minor, he or she could encounter issues trying to meet the affidavit of support requirement as U.S. citizen sponsors are required to be at least eighteen (18) years of age.
5. Religious marriages that are not considered valid within the jurisdiction they took place.
I have encountered scenarios in which followers of certain faiths perform rituals that would bind them in marriage in the eyes of others of the same faith, but not in the eyes of society. For example, in Honduras, clergy can conduct religious ceremonies of marriage but such marriage will not be considered lawful unless it was also solemnized through a civil ceremony with a lawyer present.
In conclusion, if your marriage was valid in the place where you got married, chances are, your marriage is valid. However, if you think you fall into one of the exceptions, please consult an experienced attorney for advice on your specific situation.
Stay tuned next month for the next part of this series: Proving your Relationship.