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VALIDITY OF MARRIAGE

Definition of Marriage in the INA

INA §1101 (35) The term “spouse”, “wife”, or “husband” do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.

Validity of Marriage

a. Law of Place of Celebration Controls:  The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls (except as otherwise noted below).  If the marriage was legally performed in the place of celebration and legally recognized, then the marriage is valid for visa adjudication purposes.  Any prior marriage, of either party, must be legally terminated before the later marriage.

b. Void for Public Policy:  Certain marriages that are legal in the place of celebration but are void under state law as contrary to public policy, are not valid for visa adjudication purposes.

(1)  Polygamous Marriages:  Polygamous marriages are not recognized as a matter of federal public policy.  See Matter of H-, 9 I&N Dec. 640 (BIA 1962).  Any prior marriage, of either party, must be legally terminated before the later marriage.

(2)  Marriage Between Relatives:  Certain marriages between relatives may be void because of public policy concerns even if the place of celebration recognizes the marriage.

(a)  A marriage that is void under state law, such as a relative marriage, may be recognized as valid by the state of intended immigration.

(b)  The legal thresholds vary state by state.  For example, first cousins may not marry in Michigan and such marriages in Michigan are void from their inception (M.C.L.A. 551.3 (2010)).  A 1973 ruling of the Michigan Supreme Court, however, found a marriage between first cousins that took place in Hungary **was nevertheless valid in Michigan.  See Toth v. Toth, 50 Mich. App 150, 212 N.W.2d 812 (1973).

(c)  In any case where you suspect that a marriage may not be valid for visa adjudication purposes because the parties are biological relations such as siblings, uncle-niece, or first cousins, you may request an AO from L/CA.

(3)  Minor Marriage:  Certain underage marriages involving an individual under the age of 18 may be void because of public policy concerns even if the place of celebration recognizes the marriage as valid.

(a)  Legal thresholds for underage marriage vary state by state.  Some states may recognize a marriage performed in another jurisdiction even if state law would not allow the parties to enter a marriage in that state, while other states would not recognize such a marriage because it violates the public policy of the state.  In any case where you suspect that a marriage may not be valid in the state where the applicant intends to reside because one or both of the parties are underage or were potentially underage at the time of marriage, you should request an AO from L/CA.

(b) Legal thresholds for sexual consent also vary state by state.  If you find that the applicant intends to reside in a state where the marital relationship will likely result in the commission of unlawful activity (i.e., statutory rape where there is no exception for marriage), you should request an AO from L/CA to determine if the visa should be refused under INA 212(a)(3)(A)(ii) based on intent to engage in unlawful activity.

(c) In the context of IV processing, a minor can successfully petition for a spouse.  However, family-based IVs require that the petitioner submit an I-864, Affidavit of Support Under Section 213A of the INA.  INA 213A(f)(1)(B) requires that a petitioner must be at least 18 years of age to qualify as a “sponsor” on an I-864.   In any case involving a spousal petitioner who is under the age of 18, you should refuse the visa application under INA 212(a)(4)(A) as a public charge as the petitioner cannot properly submit the required I-864.  While a joint sponsor may be used in cases in which the petitioner does not meet the income requirement found at INA 213A(f)(1)(E), the age requirement cannot be overcome with a joint sponsor.  If the petitioner later reaches age 18 and meets all other requirements, the ineligibility can be overcome.  If the petitioner will turn 18 within a year after the initial adjudication, then no additional fee or application is required.  If the petitioner will turn 18 more than a year after the initial adjudication, then a new fee and visa application would be required.  See 9 FAM 504.11-4 and 9 FAM 601.14.

(d)  If the petitioner or beneficiary indicates to you that they are being forced to marry against their will, you should reach out to the VO/F post liaison for guidance.  The Visa Office works closely with USCIS on cases involving allegations of forced marriage and can provide case-by-case guidance to you while working to protect the confidentiality of the party that disclosed the forced marriage.  In instances where you believe the underage applicant is being married against their will, you should conduct a more in-depth interview with the applicant, preferably in a privacy window.  You should obtain a statement from the applicant detailing the circumstances of the marriage and their intention and willingness to enter the marriage.  Regardless of the desires of the applicant, if you suspect forced marriage, you should send an AO to L/CA for confirmation of the legality of the marriage and potential return of the petition to USCIS on that basis.  If a forced marriage case results in a consular return, and if the applicant or beneficiary inquires, you must only communicate that the petition has been returned to USCIS.  See also 9 FAM 502.2-1(E) on IV forced marriages; 9 FAM 502.7-3(C)(5) on forced K visa relationships; and guidance on writing petition revocation memoranda with information not to be released to the petitioner at 9 FAM 504.2-8(B)(4)9 FAM 601.13-2(E).

What Qualifies as a Marriage?

(CT:VISA-1774;   05-24-2023) 9 FAM 102.8

The term “marriage” is not defined in the INA; however, the meaning of “marriage” can be inferred from INA 101(a)(35), which defines the term “spouse.”  Relationships entered for purposes of evading immigration laws of the United States are not valid for visa adjudication purposes.

9 FAM 102.8-1(D)  Proxy Marriages

(CT:VISA-1774;   05-24-2023)

A marriage where one or both parties was not present (proxy marriage) is not valid unless the marriage was consummated.

(1)  Consummated:  For the purpose of issuing a visa to a “spouse,” a proxy marriage that has been subsequently consummated is valid as of the date of the proxy ceremony.  A proxy marriage consummated before the proxy ceremony is not a marriage for visa adjudication purposes unless it has been consummated subsequently.

(2)  Unconsummated:  A proxy marriage that has not been subsequently consummated does not create or confer the status of “spouse” pursuant to INA 101(a)(35).  For IV cases, a party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e).  A proxy marriage celebrated in a jurisdiction recognizing such marriages is generally valid another marriage in the United States is not necessary if the applicant is admitted to the United States under INA provisions other than as a spouse.  See 9 FAM 502.7-3(B) for additional information on fiancé classifications.

9 FAM 102.8-1(E)  Same-Sex Marriages

(CT:VISA-1272;   05-03-2021)

Same-sex marriage is valid for visa adjudication purposes, if the marriage is recognized in the “place of celebration,” whether entered in the United States or a foreign country.  The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.

9 FAM 102.8-1(F)  Common Law Marriage

(CT:VISA-1272;   05-03-2021)

In the absence of a marriage certificate, an official verification, or a legal brief verifying full marital rights, a common law marriage or cohabitation is a “valid marriage” for purposes of visa adjudication only if it is legally recognized in the place in which the relationship was created and is fully equivalent in every respect to a traditional marriage.  To be “fully equivalent”, the relationship must bestow all the same legal rights and duties possessed by partners in a lawfully contracted marriage, including that:

(1)  The relationship can only be terminated by divorce or death;

(2)  There is a potential right to alimony;

(3)  There is a right to intestate distribution of an estate; and

(4)  There is a right of custody if there are children.

9 FAM 102.8-1(G)  Civil Unions and Domestic Partnerships

(CT:VISA-1272;   05-03-2021)

Like common law marriages, a civil union or domestic partnership only qualifies as a “valid” marriage for visa adjudication purposes if the place of celebration recognizes the status as equal in all respects to a marriage.  See 9 FAM 102.8-1(F) above.

9 FAM 102.8-1(H)  Transgender Marriages

(CT:VISA-367;   05-26-2017)

For visa adjudication purposes, a marriage involving transgender persons is valid if the place of celebration where the marriage took place recognizes the marriage as valid, subject to the exceptions described above (such as polygamy).

9 FAM 102.8-1(I)  Legal Separations and Marriage Termination

(CT:VISA-1774;   05-24-2023)

a. An applicant is a “spouse” for visa adjudication purposes, even if the parties to the marriage no longer cohabit, if the marriage was not contracted solely to qualify for immigration benefits.  If the parties are legally separated, i.e., by written agreement recognized by a court or by court order, the applicant is no longer a “spouse” for visa adjudication purposes even if the couple has not obtained a divorce.

b. If an individual’s prior marriage has been terminated by a separation that is not recognized by the state in which they reside, the individual must first obtain a divorce from the prior spouse to qualify for an IV.