Because many people seek to become a permanent resident through marriage, it is important to know what DHS considers a “marriage”. DHS will investigate the legal bona fides of the marriage. There are severe consequences if the DHS determines that the marriage is a sham, including permanent banishment from the United States.
What does DHS recognize as a bona fide and legitimate marriage? It is important that the marriage was not entered into for the purpose of evading the immigration laws. DHS 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 to the conduct of the parties after the marriage to prove their intent at the time of its inception, i.e. are the couple are living together, do they jointly own property, are they are conducting themselves as husband and wife. When the DHS suspects that fraud exists, 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. DHS will also check with the employer, the Post Office, the Department of Motor Vehicles, the County Registrar’s Office and other government agencies.
DHS recognizes proxy marriages but is very suspicious of them. Therefore, if the marriage ceremony took place by proxy, DHS 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 for 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. Therefore, 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. For the same reason, although some states may recognize homosexual marriages, DHS does not.
If the parties had the requisite intent and the marriage is valid in the place where it was entered into and it 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 INS 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 DHS 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 DHS will entertain about the case. For that reason, persons intending to file a marriage petition should consult an attorney who is experienced in immigration law to assist them in obtaining this immigration benefit.