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Because many people seek to become a permanent resident through
marriage, it is important to know what the United States Citizenship
and Immigration Service (CIS) considers a “marriage.” CIS will
investigate the legal bona fides of the marriage. There are severe
consequences if CIS determines that the marriage is a sham,
including permanent banishment from the US.
What does CIS recognize as a bona fide and
legitimate marriage? It is important that the marriage was not
entered into for the purpose of evading immigration laws. CIS will
address the issue of “at the time of marriage, did the bride and
groom intend to establish a life together?” If they did, the
marriage is bona fide.
The examining officer will look at the conduct
of the parties after the marriage to prove their intent at the time
of its inception: Are the couple living together? Do they jointly
own property? Are they are conducting themselves as husband and
wife?
When the CIS suspects fraud, the officer will
request a field investigation. The investigation can include such
things as early morning or late- night home visits and interviews
with neighbors and friends. CIS will also check with the employer,
the Post Office, the Department of Motor Vehicles, the County
Registrar’s Office and other government agencies.
CIS recognizes proxy marriages, but is very
suspicious of them. Therefore, if the marriage ceremony took place
by proxy, CIS requires proof of consummation of the marriage. In
other circumstances, cohabitation and consummation are not
absolutely necessary. For example, elderly couples who have separate
bedrooms may still have a valid marriage for immigration purposes.
The intent of the couple is not the only test of
the validity of the marriage. It must also be legitimate. There are
many considerations to test whether a marriage is legitimate. The
marriage must be valid at its inception under the laws of the place
where the marriage took place.
If a state or country recognizes common law
marriage, the marriage is valid for immigration purposes. Some
marriages are not automatically invalid, but may be, if one of the
parties raises the issue. An example of this is where one of the
parties was a minor at the time the marriage took place. Such a
marriage is voidable by the minor until after he or she reaches
majority. If the marriage is not void, but voidable, the marriage
may be recognized for immigration purposes.
The legality at the place and time of inception
is not the only concern. The marriage cannot be contrary to public
policy or federal law. Even though polygamy is valid in some
countries, a polygamous marriage is not valid in the United States.
All prior marriages must have been terminated before the parties
entered into the current marriage.
Under the Defense of Marriage Act, a marriage is
defined as one man and one woman (bride and groom). Therefore,
despite the fact that some states allow same-sex marriages, CIS does
not recognize them for immigration purposes.
If the parties had the requisite intent and the
marriage is valid in the place where it was entered into and does
not violate public policy, it is valid for immigration purposes. If
no legal separation or dissolution of marriage has been obtained at
the time of the petition, the CIS cannot deny the petition simply
because the parties are not subsequently living together.
Moreover, subsequent conduct of the parties, no
matter how unconventional, does not prove lack of marital intent.
Even the death of a spouse does not automatically result in the
termination of the petition if the CIS finds that, for humanitarian
reasons, revocation would be improper.
While the marriage petition itself may seem very
simple, the case can be very complex. The documentation must be very
thorough and should anticipate all questions that CIS will entertain
about the case. For that reason, persons intending to file a
marriage petition should consult with a reputable immigration firm.
Author’s Note: The analysis and
suggestions offered in this column do not create a lawyer-client
relationship and are not a substitute for the individual legal
research and personalized representation that is essential to every
case.
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Atty. Reeves has represented clients in numerous
landmark immigration cases that have set new policies regarding INS
action and immigrants’ rights. His many successes have been
published in Interpreter Releases, Immigration Briefings and AILA
Monthly, both nationally recognized immigration periodicals widely
read by immigration lawyers, State Department and immigration
officials. His offices are located in Pasadena, San Francisco, Las
Vegas and Makati City. Philippine Telephone: (63-2) 759-6777;
E-mail: rrphil@rreeves.com; Website: www.rreeves.com
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