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

Moving to a brand-new country is actually one of life's biggest events. Whether one is actually relocating to take up a temporary work assignment, or permanently immigrating, one's spouse (or life partner) is actually normally essential to the equation along with will often play a vital supporting role inside process. the item is actually, therefore, essential to ensure in advance in which the immigration laws of the country in question recognize This kind of 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 kind of is actually in which spouses along with partners in many not-uncommon types of marriages along with relationships are entitled only to limited – if any – immigration benefits. In This kind of article, we review the criteria used by the United States government to determine whether the item will recognize a spouse for immigration purposes, as well as how said criteria apply to several maritime situations.


United States Citizenship along with Immigration Services ("USCIS") along with 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 actually applied both in assessing eligility for a derivative non-immigrant visa (eg, 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 inside place of celebration?

USCIS along with DOS both judge the validity of the marriage based on the laws of the place where the marriage was celebrated. A marriage in which is actually not valid inside place where the item 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 inside United States, if the marriage in which 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.

Contrast, informal along with tribal ceremonies in which could not rise to the formality normally required to register a marriage inside United States may qualify for immigration benefits if the ceremonies meet all of the legal requirements to be valid inside country performed. This kind of 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 along with obtain immigration benefits. In an opinion by the General Counsel for the former Immigration along with Nationality Service, today USCIS, an Iranian mosque marriage in which was performed in Turkey was found to be valid under the laws of Turkey; however, a consequent 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 in which were previously ineligible for United States immigration benefits may even be cured by consequent laws inside relevant country in which cause the previously defective marriages to be recognized as valid in in which country.

This kind of approach also applies in determining whether a prior divorce was valid; USCIS along with DOS will look to whether the subsequent remarriage was considered valid inside jurisdiction where the item took place.

Prong 2: is actually there a strong public policy against This kind of type of marriage inside state of domicile or, for couples who marry abroad, the state of intended domicile?

USCIS along with DOS may refuse to recognize a spouse for purposes of immigration benefits in some exceptional circumstances when the marriage is actually contrary to public health or morals, including plural marriages along with marriages between close relatives. Each of these situations requires complex analysis along with is actually discussed later in further detail.

Prong 3: is actually 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 along with override any public policy in favor or against such marriages inside state of current or intended domicile.
The most intolerable of such Congresses standards is actually the 1996 Defense of Marriage Act (DOMA), which defines marriage as the legal union between one man along with 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 a country in which legitimately recognizes same-sex marriages. DOMA also supersedes any state law in regards to immigration benefits along with restrictions immigration benefits regardless of whether the same-sex couple will be living in a US state in which recognizes same-sex marriage. Visa options for same-sex partners along with spouses are discussed later in further detail.

Immigration laws also prescribe in which 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 additional's physical presence, however rather are married by picture, telephone, radio, television, or similar. Such marriages may not entitle the spouse to immigration benefits even if the item is actually considered a valid marriage inside place of performance. However, proxy marriages may lead to immigration benefits if the item can be shown in which the couple consummated the marriage through cohabitation following the ceremony, which resulted in a bona fide marriage under US immigration laws.

A marriage in which is actually entered into by parties without the intent to live as man along with wife, however rather to obtain immigration benefits, will not be considered a bona fide marriage for the purpose of obtaining such benefit regardless of being otherwise valid. Such sham interviews not only prevent the foreign spouse by obtaining immigration benefits, however in cases where a United States Citizen or Legal Permanent Resident files an immigrant petition based on a sham marriage, the United States Citizen or Legal Permanent Resident may face criminal sanctions including imprimentment along with fines.

The main consideration by USCIS when evaluating a potential sham marriage is actually whether the parties intended to establish a life together at the time of the marriage. USCIS looks to the conduct of the parties with This kind of determination, including evidence of courtship, the circumstances of the wedding ceremony, shared residences, insurance policies, bank accounts, along with property agreements. additional factors often considered include large age differences, language barriers, along with additional religious along with cultural differences.

USCIS does not, however, consider the following factors to be automatically indicative of a sham marriage if the marriage is actually otherwise valid along with subsisting: 1.) Cohabitation of the parties to the marriage, however without sexual relations because of age or illness; Egypt, 2.) The legal or physical separation of the parties, without dissolution of the marriage. A separated spouse may still be entailed to immigration benefits if there exists an intention to reconcile.


Looking today to the application of the three-prong test, following is actually an examination of current USCIS along with DOS policy on immigration benefits for same-sex couples, transgender spouses, cohabitating partners along with common law spouses, plural marriages, along with incestuous marriages:

I. Same-Sex Couples

USCIS along with DOS will deny an application for immigration benefits as a spouse in a same-sex marriage or civil partnership based on the Defense of Marriage Act (DOMA), as of the date of This kind of article.

Section 3 of DOMA states in relevant part in which:

In determining the meaning of any act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus along with agencies of the United States, the word 'marriage' means only a legal union between one man along with one woman as husband along with wife, along with the word 'spouse' refers only to a person of the opposite sex who is actually a husband or a wife .

In February 2011, Attorney General Eric Holder announced in which the Obama Administration had determined in which Section 3 of the DOMA was unconstitutional along with in which the Department of Justice could no longer defend the item in federal court challenges. However, the Department of Justice must still enforce DOMA pending a legislative repeal of the act or similar final judicial decision. Numerous along with significant court cases are currently pending concerning This kind of issue, while many legislative acts have also been introduced to the United States Congress. However, at the time of This kind of article, DOMA remains controlling.

Based on DOMA, USCIS along with DOS stand firm in which any derivative visa, immigrant sponsor, cancellation of cancellation, fiancé (e) visas, or waiver application dependent upon a spousal relationship, filed based on a same-sex-marriage or civil partnership, will be denied. Furthermore, USCIS along with DOS will make an immediate decision on such matters, per standard processing times. USCIS along with DOS will not honor requests in which USCIS along with DOS hold filed cases until the resolution of DOMA litigation.

A same-sex spouse must there seek alternative visa options to accompany a spouse holding a non-immigrant visa or to join his or her United States Citizen or Legal Permanent Resident spouse inside United States.

A subsection of the B-2 visitor visa provisions authorize DOS to issue special visitor visas to the same-sex spouse or partner of a foreign national in which holds a long-term non-immigrant visa. This kind of type of visitor visa contains a particular annotation in which the holder is actually the same-sex spouse or partner to ease questioning along with scrutiny by officers at the port of entry to the United States. However, like ordinary visitor visas, the same-sex spouse or partner will only be given authorized entry to the United States of up to six (6) months at a time. Stays for longer than six (6) months will need to be authorized by filing applications to extend status inside United States, with the associated fees. Furthermore, the same-sex spouse or partner is actually not authorized to work inside United States, whether or not the work is actually paid, along with regardless of whether the work is actually for a United States company or foreign company. If the same-sex spouse or partner desires to work inside United States, he or she will need to obtain an appropriate visa in his or her own right.

For same-sex spouses or partners of United States Citizens or Legal Permanent residents, This kind of subsection of the visitor visa regulations only applies if the United States Citizen or Legal Permanent Resident normally lives overseas, however is actually traveling to the United States for a temporary period of time.

This kind of visa subsection does not cover the same-sex spouse or partner of a United States Citizen or Legal Permanent Resident in which normally resides inside United States. In adjudicating all visitor visa applications, DOS must determine in which the applicable visit is actually temporary along with in which the applicant has significant ties to their home country. A marriage to a United States Citizen or Legal Permanent Resident residing inside United States, even when the marriage is actually not recognized by United States immigration laws, may result inside denial of a visitor visa application by DOS based on the presumption by DOS in which the applicant will not return to their home country, however will rather remain inside United States with their spouse or partner.

Same-sex spouses or partners of United States Citizens along with Legal Permanent Residents will need to obtain an appropriate visa in their own right. Some of the options to do so could include investing in a business inside United States, a transfer by a foreign employer to an affiliated United States employee, finding United States employment sponsorship, or enrolling in an approved education or training course. Each of these options needs to be fully evaluated against the qualifications along with circumstances of the same-sex spouse.

II. Transsexual Marriage

A marriage in which the two parties were born the same-sex, however where one party underwent gender reassignment surgery, may entitle the minority to immigration benefits. The Board of Immigration Appeals held inside Matter of Lovo-Lara in which DOMA did not apply to transsexuals in a heterosexual relationship based on post-operative gender. Therefore, the analysis of whether the marriage is actually recognized turns back to the validity inside jurisprudence of the marriage.

The controlling test in determining whether such marriages are recognized for immigration purposes is actually whether the marriage was considered a valid along with heterosexual marriage inside jurisprudence where the marriage occurred. The marriage inside precedent case of Matter of Lovo-Lara, as an example, occurred inside state of North Carolina. The transsexual spouse obtained a permitted change of the sex on her birth certificate following her gender reassignment to female along with then married her male husband. The court noted in which North Carolina registered their marriage as legal, however in which same-sex marriage is actually not legal in North Carolina. Thus, the marriage was both considered heterosexual along with valid in North Carolina, along with the spouse was entitled to immigration benefits.

many US states, as well as foreign countries, have legal precedent as to whether such a marriage is actually valid along with heterosexual in in which jurisdiction. In reviewing whether the marriage is actually valid along with heterosexual, the item is actually important to note in which some jurisdictions, including Illinois along with Texas, allow a post-operative transsexual to change the gender on their birth certificate, however do not recognize the gender reassignment as changing the individual's sex for purposes of marriages. Also, a marriage in which one party is actually a post-operative transsexual may be recognized in some jurisdictions as a valid marriage, however still as a same-sex marriage. The registered same-sex marriage could not be recognized for immigration purposes per DOMA.

In many jurisdictions the statement is actually not clear or there is actually no binding precedent. In such case, USCIS may be satisfied as to the validity of the marriage through submission of a court order, official record, or statement by an appropriate government agency indicating in which the gender reassignment surgery has resolved in a change of the person's legal sex under the law of the place of the marriage.

Accordingly, the marriage of two parties who were born the same-sex may be recognized for immigration benefits if all of the following are satisfied:

1. One individual underwent gender reassignment surgery; along with
2. The person who underwent gender reassignment surgery has taken whatever legal steps exist along with may be required to develop the legal change of sex recognized for purposes of marriage under the law of the place of marriage; along with
3. The marriage is actually recognized under the law of the jurisprudence of marriage as a valid along with heterosexual marriage.

III. Common Law Marriages

An actual marriage between two people made without formal registry, often known as a common law marriage, is actually recognized for purposes of immigration benefits only if common law marriages are recognized inside jurisprudence where the unregistered marriage took place. In reviewing the validity of these marriages, USCIS along with DOS will look first to determine if common law marriages were recognized by the jurisprudence at the time of unregistered marriage, along with then as to whether the parties fulfilled all of the requirements of the jurisdiction to create a common law marriage, such as mutual agreement, cohabitation, etc.

USCIS along with DOS will also look to ensure in which the recognition of the common law marriage by the jurisprudence bestows all of the same legal rights along with obligations as individuals in lawfully contracted marriages. Factors for consideration include, however are not limited to, whether the relationship can only be determined by divorce along with if there is actually an intestate distribution of an estate.

Most US states no longer recognize common law marriages. However, unless the jurisdiction has invalid common law provisions recognized under former regulations, USCIS along with DOS will rely on either the common law marriage was recognized at the time of its inception, regardless of whether the jurisdiction is actually currently recognizing brand-new common law marriages.

IV. Cohabitating Partners

Cohabitating partners who have not entered into a valid, registered marriage along with are not in a recognized common law marriage are not eligible for the immigration benefits of a spouse. Similar to same-sex partners, heterosexual partners cohabitating in a relationship akin to marriage are eligible to apply for a special visitor visa to accompany a partner traveling to the United States which has a long-term non-immigrant visa. The cohabitating partners of a United States Citizen or Legal Permanent Resident who normally resides outside of the United States, however is actually traveling only temporarily back to the United States is actually also eligible to apply with This kind of special visitor visa.

This kind of special visitor visa authorizes entry to the United States for up to six (6) months, with extensions of up to six (6) months at a time possible by within the United States upon further application to USCIS. If the cohabitating partner wishes to work inside United States, he or she will need to obtain the appropriate United States visa in his or her own right.

the item is actually unlawful in which DOS will issue a cohabitating partner of a United States Citizen or Legal Permanent Resident a visitor visa if the United States Citizen or Legal Permanent Resident is actually normally residing inside United States, due to the presumption in which the partner will not return to their foreign residency. Cohabitating partners in these situations will either need to obtain an appropriate long-term non-immigrant visa or enter into a valid marriage to obtain immigration benefits.

V. Plural (Polygamous) Marriages

United States law does not recognize plural (ie "polygamous") marriages, regardless of whether the marriages in question are legal along with recognized inside jurisprudence of marriages. Thus, a marriage in which is actually entered into before a previous marriage of either party is actually terminated by divorce, annulment or death is actually void along with invalid for US immigration purposes. (Note: Disappearance of one spouse may also stipulate the legal end of a marriage in certain jurisdictions.)

In cases where the soundness of the divorce is actually in question, USCIS along with DOS look to whether the first marriage was fully along with legally terminated based on the law of the jurisprudence of the termination along with whether the second marriage was regarded as lawful at its place of celebration , as a monogamous marriage. For example, in Matter of Moncayo, the Board of Immigration Appeals found in which a divorce decree in which was issued in Ecuador inside absence of one party to the divorce was not valid in brand-new York, so the party's remarriage in brand-new York was not valid.

Even when the intent is actually for a monogamous marriage, individuals seeking immigration benefits as, or for, a spouse in which has entered into a previous marriage should ensure in which the priority marriage was properly terminated. If the prior marriage was not properly terminated along with the current marriage is actually void, the beneficiary / spouse will not be eligible for immigration benefits until the prior marriage is actually properly terminated along which has a valid marriage occurs.
Whilst polygamy is actually legal along with practiced in many customs along with cultures around the entire world, the item is actually illegal inside United States along with immigration law recognizes only the first of the plural marriages. The discussion of immigration benefits in such marriages will be discussed by the perspective of one husband with plural wives; however, the discussion applies identically to a situation of one wife with plural husbands.

Only the first wife of a polygamist husband who obtains a long-term non-immigrant visa to the United States, such as the L-1 visa, may obtain a derivative non-immigrant visa, such as the L-2 visa. the item is actually not simply in which only one wife may accompany the polygamist husband, the item is actually in which only his first wife is actually eligible for a derivative visa as the marriages to later wives are void along with invalid under United States immigration law.

The second wife along with any later wives will need to qualify for a long-term non-immigrant visa in their own right, as the principal applicable, to able to accompany their husband to the United States on a long-term basis. DOS also grants officers at United States Embassies along with Consulates the discretion to issue visitor visas to plural wives to accompany their husband.

While the husband along with the first wife are eligible for non-immigrant visas, the Immigration along with Nationality Act § 212 (a) (10) (A) renders polygamists ineligible for immigrant visas. This kind of section only renders individuals in which practice polygamy inadmissible along with the item does not extend to individuals who sincerely believe in or promote polygamy without themselves entering into plural marriages. A polygamist in which wishes to become a Legal Permanent Resident of the United States will need to divorce all wives enclosed his first along with abandon the practice of polygamy before concluding the territorial process. DOS consular officers are instructed to be suspicious of former polygamists who divorce plural wives just before moving forward with the jurisdiction process along with must review the matter to ensure in which the former polygamist will not resume the practice following issuance of Legal Permanent Resident status.

VI. Incestuous Marriages

An incestuous marriage between close relatives will only be recognized for immigration benefits if the marriage was valid at the place of origin along with the cohabitation of the parties at their intended residence inside United States will not incur criminal punishment. When looking at the factor of the intended residence, the controlling factor is actually not yet the state performances such marriages, however rather if the state deems such marriages or relationships illegal. Marriages by cousins ​​along with by an uncle along with niece are not illegal in many states along with have led to immigration benefits.


All of the above-discussed situations create complex along with often challenging immigration cases in which must be handled with care. USCIS along with DOS do not offer guidance or specific instructions on the appropriate presentation of these cases, nor should the item be assumed in which USCIS along with DOS are fully practiced in such situations. The guidance of immigration lawyers who are well-versed in such cases will help to ensure in which the appropriate visa category is actually thought along with in which the legal eligibility for the immigration benefit, with appropriate documentation, is actually clearly demonstrated to USCIS along with DOS for the most efficient processing .

Copyright 2011. Ortega-Medina & Associates Ltd. All Rights Reserved.

Source by Orlando Ortega-Medina

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