Determining Eligibility for Immigration Benefits for Dependent Spouse or Partner: Same Sex Couples
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 eb5 projects 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.