Defining a Legally Valid Marriage Under U.S. Immigration Law

If you are a foreign national married to a U.S. citizen or permanent resident, and you plan to apply for a marriage-based visa or green card, you must double check that this marriage meets the following legal requirements:

• you and your spouse are legally married
• you and your spouse are in a bona fide (non-fraudulent) marriage
• you are married to either a U.S. citizen or lawful permanent resident, and
• this is your only current marriage; in other words, neither you nor your spouse are married to anyone else (creating a situation of bigamy or polygamy).

We will explain all of these requirements below.

Only a Legal Marriage Will Qualify Someone for a U.S. Green Card

To qualify for a marriage-based visa or green card, you must be legally married. A legal marriage is one that is officially recognized by the government in the country or state where you were married. This usually means that an official record of your marriage has been made or can be obtained from some public office.

If you have not yet married, make sure you are eligible to do so. The state or federal government where you intend to hold your wedding might have legal restrictions on who can marry. In the United States, each of the 50 states establishes its own marriage rules. For example, in some states a person must be 18 years of age to marry, while in others one can marry at a younger age with the parents' consent.

If you and your spouse are related by blood, you will also need to do some research into the applicable law. You'll find that all states prohibit marrying one's sister or brother (sibling), half sibling, parent, grandparent, great grandparent, child, grandchild, great grandchild, aunt, uncle, niece, or nephew. But some states have additional prohibitions on marriages between blood relations, such as marrying one's first cousin.

Do Same-Sex Marriages or Domestic Partnerships Count for U.S. Immigration?

Same-sex marriages count for U.S. immigration purposes, as of the Supreme Court's 2013 decision in U.S. v. Windsor. That case struck down the federal Defense of Marriage Act (DOMA), which had defined marriage as solely between a man and a woman. And based on a later Supreme Court decision, every U.S. state now authorizes same-sex marriages.

A same-sex marriage outside the United States will need to have taken place in a country where such marriages are legally recognized.

Domestic partnerships or civil unions, in which a couple lives together but have not formalized their relationship, are not normally recognized for U.S. immigration purposes. However, if you have lived together in a place that recognizes common law marriages, you might be able to show that you met the requirements for your marriage to be legally recognized in that state or country. If you are in this situation, definitely consult an attorney.

Does the Marriage Need to Have Been Held in the United States?

You do not need to have been held your wedding ceremony in the United States for the marriage to be considered legally valid for U.S. immigration purposes. It is perfectly acceptable if you marry in your home country or elsewhere. A variety of marriage procedures are also recognized by the U.S. government, from church weddings to customary tribal practices. Of course, you will need to obtain whatever sort of certificate or documentation is standard in the country where you marry, to prove that the marriage is considered legal there (as discussed below).

Will Proxy Marriages Count for U.S. Immigration Purposes?

Both the foreign-born and U.S. spouse must actually attend the wedding ceremony, in person. However, if a long physical separation is unavoidable, or there's an urgent need to get the visa paperwork moving, some couples look into so-called "proxy" marriages. This means that another person stands in for a faraway bride or groom, taking the vows and signing any documents.

Unfortunately, proxy marriages are not ordinarily recognized by the U.S. government, at least not right away. To obtain recognition, the couple must later consummate the marriage, meaning they have sexual relations. (See I.N.A. Section 101(a)(35).) Also, you would need to be in a location where proxy marriages are legally recognized, and only a few U.S. states allow them, usually in narrow situations such as where one member of the couple is serving abroad in the U.S. military.

Though it's not impossible to apply for a green card based on a proxy marriage, this is a sufficiently unusual situation that you would probably want to consult with an immigration attorney about how to present and document your case. Fortunately, you won't be expected to present intimate evidence of the consummation. Documents such as travel receipts and hotel bills showing that you spent time together, or mortgage or lease agreements showing that you live together, are usually sufficient. And medical reports of pregnancy (so long as the conception occurred post-wedding) would be an excellent form of proof.

What Proof Does an Immigrant Need of a Valid Marriage?

To accompany your immigration application, you will need to get a document showing you were legally married. U.S. immigration authorities do not normally accept anything less formal than a marriage certificate issued by a legitimate government agency (as opposed to a piece of paper from a church or a ship's captain, for example).

To check what sorts of documents the U.S. government considers valid from each country, see the Department of State's list at U.S. Visa: Reciprocity and Civil Documents by Country. Select your country and scroll down to "Marriage, Divorce Certificates," then read the description of the documents considered legally valid there.

How Does U.S. Immigration Law Treat a Legal Separation?

Even if the marriage was valid at the outset, it will no longer count for purposes of seeking a green card in a case where the couple legally separates. This means more than just living apart: To be legally separated means the couple has entered into a court-recognized agreement or obtained a court decree or order that renders the relationship "as if they were not married at all." (See 9 FAM 102.8-1(I) and Matter of Lenning, 17 I&N Dec. at 477 (1980).)

Also, it goes without saying that if and when the couple divorces, the marriage no longer counts for purposes of seeking a green card. However, depending on how far along in the application process they were, exceptions might be made, such as in situations of domestic abuse. See, for example, Green Card Under the Violence Against Women Act (VAWA): Who Is Eligible and Conditional Resident With Abusive Spouse? File Form I-751 Early, Get Green Card Sooner.

Only a "Bona Fide" Marriage Qualifies Foreign-Born Spouse for a U.S. Green Card

A bona fide marriage is one in which the two people intend, from the start, to establish a life together as husband and wife. (Or, in the case of same-sex marriages, husband and husband or wife and wife, or however they wish to define themselves.)

Although marriage can mean different things to different people, one thing is clear: A marriage entered into for the sole or primary purpose of getting the immigrant a U.S. green card is not bona fide. It's called a "sham" or "fraudulent" marriage, and uncovering these relationships is a top USCIS priority and a focus of examination and enforcement efforts. See, for example, this pamphlet by Immigration and Customs Enforcement (ICE) declaring that "Marriage fraud is a serious crime that weakens our nation's security and makes us less safe."

Both U.S. petitioners of immigrants and the immigrants themselves can face steep fines and prison time for entering into a fraudulent marriage.

For more on what USCIS may look at, see Proving a "Bona Fide" Marriage for Immigration Purposes.

Only Marriage to a U.S. Citizen or Permanent Resident Can Lead to a Green Card

There are only two classes of people living in the United States who can obtain permanent residence or green cards for their spouses: U.S. citizens and U.S. lawful permanent residents (green card holders).

Determining Whether Your Spouse Is a U.S. Citizen

Your spouse could have become a U.S. citizen in a variety of ways, including:

• being born in the United States or one of its territories, including Puerto Rico, Guam, the U.S. Virgin Islands, and the Mariana Islands
• becoming a citizen through application and testing (called naturalization), or
• acquiring or deriving citizenship through a family member. (Acquisition and derivation of citizenship are complex areas of the law. In general, however, people may acquire citizenship by being born abroad to one or two U.S. citizen parents; they may derive citizenship if they become lawful permanent residents first and their parents are or later become U.S. citizens.)

Unlike some other countries, the United States does not require that its citizens carry any sort of national identity card. People who are U.S. citizens might have different types of documents that prove their status, such as a birth certificate, a U.S. passport, or a naturalization certificate.

Your U.S. spouse will need to get a copy of documentary proof of citizenship in order to accompany your application for a U.S. green card.

Determining Whether Your Spouse Is a U.S. Lawful Permanent Resident

A lawful permanent resident is someone with a legally obtained green card. This means that the person has a right to live in the United States permanently and may eventually become a U.S. citizen. The spouses of permanent residents are eligible for a green card (although it will take longer than for spouses of U.S. citizens, due to annual limits on the number of available visas).

You should know, however, that the fact that your spouse has a green card now doesn't guarantee that they will have it forever. Permanent residence can be lost, for example, if the person makes their home outside the United States or commits certain crimes or other acts that cause U.S. immigration authorities to begin removal proceedings and order the person deported. If your spouse were to lose permanent residence while your application was being decided on, you would also lose your right to immigrate through the marriage.

A green card is not the same thing as a work permit card. Someone who carries a card with the title Employment Authorization Document is not a permanent resident.

Only If This Is the Sole Marriage Can Foreign-Born Spouse Get a Green Card

Any previous marriages must have ended by legal means—such as death, divorce, or annulment—and in the course of your green card application, you will have to present official documents to the U.S. government to prove it. Otherwise, U.S. immigration authorities will wonder whether your first marriage is still your active and real one, making your new marriage just a sham to get a green card.

What's more, bigamy is a crime in the United States (and a "crime of moral turpitude" in immigration law terms), and polygamy is a ground of inadmissibility. See How Marriage to Multiple Spouses Affects Immigrants' Eligibility for a U.S. Visa, Green Card, or Citizenship.

Do I Need a Lawyer to Help Get a Marriage-Based Green Card?

If you plan on obtaining a U.S. green card based on marriage, and your marriage is real and legally valid, you shouldn't face any major hurdles. Nevertheless, realize that this application process is complex and, due to the slow-moving U.S. immigration bureaucracy, can take literally years to complete. It's common to encounter frustrations in providing the needed proof, or even doubt or suspicion that your marriage is fraudulent.

For these reasons, many couples find it helpful to hire an experienced immigration attorney to assist them. The attorney can research whether your marriage is, in fact, valid; identify any other legal concerns in your case; strategize the safest or speediest way to get through the application process; prepare the application paperwork, and guide you in gathering the needed documents; and accompany you to the green card interview (if it's held in the United States rather than at an overseas U.S. consulate).