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

Moving to a new united states of america is one of life’s largest events. Whether one is relocating to take up a temporary work assignment, or permanently immigrating, one’s spouse (or existence partner) is commonly quintessential to the equation and will regularly play a critical assisting position in the process. It is, therefore, necessary to ensure in improve that the immigration legal guidelines of the u . s . a . in question understand this vital individual as a suitable “spouse” for immigration or visa purposes.

The United States presently takes a narrow view on the definition of a partner for immigration purposes. The result of this is that spouses and companions in many not-uncommon kinds of marriages and relationships are entitled solely to confined – if any – immigration benefits. In this article, we assessment the standards used by means of the United States authorities to determine whether it will apprehend a spouse for immigration purposes, as nicely as how stated standards applies to countless marital situations.


United States Citizenship and Immigration Services (“USCIS”) and the United States Department of State (“DOS”) each follow a three-prong check to determine the validity of a marriage for immigration purposes. The following three-prong test is utilized both in assessing eligibility for a derivative non-immigrant visa (e.g., L2 visa, E2 visa, H4 visa, etc.) or an immigrant visa, as nicely as in matters of family-based sponsorship via a United States Citizen or Legal Permanent Resident:

Prong 1: Was the marriage valid in the area of celebration?

USCIS and DOS each choose the validity of the marriage based on the laws of the vicinity where the marriage was once celebrated. A marriage that is now not valid in the area the place it used to be celebrated will no longer be identified as a marriage for the purposes of receiving immigration benefits.

By way of example, a marriage in Thailand should be registered with the civil registrar, the Amphur. A spiritual ceremony on my own does not create a valid marriage in Thailand. Thus, though a spiritual ceremony may also be enough to register a marriage in sure states in the United States, if the marriage that took place in Thailand used to be solely a spiritual ceremony, barring the required civil registration, the partner 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 no longer rise to the formality generally 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 legitimate in the u . s . a . performed. This element comes up frequently with common regulation marriages, which are discussed later in similarly detail.

There can also be the opportunity to treatment an invalid marriage and gain immigration benefits. In an opinion by using the General Counsel for the former Immigration and Nationality Service, now USCIS, an Iranian mosque marriage that was carried out in Turkey was once discovered now not to be valid underneath the legal guidelines of Turkey; however, a subsequent civil marriage validated the marriage in Turkey, accordingly rendering the spouse eligible for immigration benefits. (See INS General Counsel Legal Opinion No. 91-58, File No. CO831 (July 25, 1991)). Marriages that have been until now ineligible for United States immigration advantages may additionally even be cured by means of subsequent legal guidelines in the applicable united states of america that reason the until now defective marriages to be identified as valid in that country.

This approach also applies in figuring out whether a prior divorce used to be valid; USCIS and DOS will appear to whether the subsequent remarriage was once considered valid in the jurisdiction where it took place.

Prong 2: Is there a robust public coverage towards this type of marriage in the kingdom of home or, for couples who marry abroad, the nation of meant domicile?

USCIS and DOS may refuse to apprehend a partner for functions of immigration advantages in some awesome occasions when the marriage is opposite to public health or morals, consisting of plural marriages and marriages between close relatives. Each of these conditions requires complicated evaluation and is discussed later in in addition detail.

Prong 3: Is the marriage bona fide as defined via immigration law?

The United States Congress can also prescribe a federal fashionable beneath which sure marriages, even though valid at the vicinity of celebration, are not recognized for immigration benefits. Such federal requirements also dismiss and override any public coverage in choose or against such marriages in the nation of contemporary or meant domicile.
The most superb of such Congressional requirements is the 1996 Defense of Marriage Act (DOMA), which defines marriage as the criminal union between one man and one woman. Under DOMA, applications for immigration advantages based totally on a marriage of two humans of the same-sex have been uniformly denied, regardless of whether or not the marriage was once entered into in a country that legally recognizes same-sex marriages. DOMA also supersedes any kingdom law in regards to immigration benefits and restricts immigration benefits regardless of whether or not the same-sex couple will be living in a US nation that acknowledges same-sex marriage. Visa selections for same-sex partners and spouses are discussed later in similarly detail.

Immigration legal guidelines also prescribe that proxy marriages or marriages for the sole motive of acquiring immigration benefits (“sham marriages”) are now not identified as bona fide marriages. A proxy marriage entails a ceremony where the marrying people are now not in each other’s physical presence, however alternatively are married by using picture, telephone, radio, television, or similar. Such marriages can also now not entitle the spouse to immigration advantages even if it is regarded a legitimate marriage in the area of performance. However, proxy marriages may additionally lead to immigration benefits if it can be proven that the couple consummated the marriage through cohabitation following the ceremony, as a consequence resulting in a bona fide marriage below US immigration laws.

A marriage that is entered into by using parties without the intention to stay as man and wife, but alternatively to acquire immigration benefits, will now not be viewed a bona fide marriage for the purpose of acquiring such advantage regardless of being otherwise valid. Such sham marriages not solely prevent the overseas partner from obtaining immigration benefits, but in cases the place a United States Citizen or Legal Permanent Resident archives an immigrant petition based totally on a sham marriage, the United States Citizen or Legal Permanent Resident might also face crook sanctions together with imprisonment and fines.

The main consideration with the aid of USCIS when evaluating a plausible sham marriage is whether or not the parties intended to set up a lifestyles collectively at the time of the marriage. USCIS looks to the conduct of the parties for this determination, including evidence of courtship, the circumstances of the wedding ceremony, shared residences, insurance policies, financial institution accounts, and property agreements. Other factors often regarded include giant age differences, language barriers, and other religious and cultural differences.

USCIS does not, however, consider the following factors to be mechanically indicative of a sham marriage if the marriage is in any other case valid and subsisting: 1.) Cohabitation of the parties to the marriage, however without sexual relations due to the fact of age or illness; or, 2.) The criminal or bodily separation of the parties, besides dissolution of the marriage. A separated partner may additionally nonetheless be entitled to immigration advantages if there exists an intention to reconcile.


Looking now to the utility of the three-prong test, following is an examination of modern USCIS and DOS policy on immigration benefits for same-sex couples, transgender spouses, cohabitating companions and frequent law spouses, plural marriages, and incestuous marriages:

I. Same-Sex Couples

USCIS and DOS will deny an software for immigration advantages 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 article.

Section three of DOMA states in applicable part that:

In figuring out the that means of any Act of Congress, or of any ruling, regulation, or interpretation of the a range of administrative bureaus and companies of the United States, the word ‘marriage’ ability solely a prison union between one man and one girl as husband and wife, and the word ‘spouse’ refers only to a character of the contrary sex who is a husband or a wife.

In February 2011, Attorney General Eric Holder announced that the Obama Administration had decided that Section three of DOMA was once unconstitutional and that the Department of Justice would no longer defend it in federal court docket challenges. However, the Department of Justice have to nonetheless put in force DOMA pending a legislative repeal of the act or comparable final judicial decision. Numerous and enormous court docket cases are currently ongoing related to this issue, while a number of legislative acts have also been brought to the United States Congress. However, at the time of this article, DOMA remains controlling.

Based on DOMA, USCIS and DOS stand firm that any derivative visa, immigrant sponsorship, cancellation of removal, fianc‚(e) visas, or waiver utility established upon a spousal relationship, filed based on a same-sex-marriage or civil partnership, will be denied. Furthermore, USCIS and DOS will make an immediately choice on such matters, per standard processing times. USCIS and DOS will no longer honor requests that USCIS and DOS keep filed cases until the resolution of DOMA litigation.

A same-sex partner must therefore are seeking alternative visa alternatives to accompany a spouse holding a non-immigrant visa or to join his or her United States Citizen or Legal Permanent Resident partner in the United States.

A subsection of the B-2 tourist visa provisions authorize DOS to issue one of a kind tourist visas to the same-sex partner or accomplice of a foreign national that holds a long-term non-immigrant visa. This type of visitor visa consists of a specific annotation that the holder is the same-sex spouse or partner to ease questioning and scrutiny through officers at the port of entry to the United States. However, like ordinary tourist 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 approved by means of filing purposes to prolong status in the United States, with the associated fees. Furthermore, the same-sex spouse or accomplice is no longer approved to work in the United States, whether or not or now not the work is paid, and regardless of whether the work is for a United States agency or foreign company. If the same-sex spouse or associate needs to work in the United States, he or she will want to acquire an fantastic visa in his or her personal right.

For same-sex spouses or partners of United States Citizens or Legal Permanent residents, this subsection of the traveller visa regulations solely applies if the United States Citizen or Legal Permanent Resident normally lives overseas, however is travelling to the United States for a transient length of time.

This visa subsection does not cover the same-sex spouse or companion of a United States Citizen or Legal Permanent Resident that typically resides in the United States. In adjudicating all traveler visa applications, DOS should decide that the applicant’s go to is brief and that the applicant has huge ties to their home country. A marriage to a United States Citizen or Legal Permanent Resident living in the United States, even when the marriage is now not diagnosed via United States immigration laws, may result in the denial of a tourist visa software by using DOS based on the presumption by means of DOS that the applicant will not return to their domestic country, but will alternatively continue to be in the United States with their spouse or partner.

Same-sex spouses or partners of United States Citizens and Legal Permanent Residents will want to obtain an splendid visa in their personal right. Some of the preferences to do so could encompass investing in a business in the United States, a switch from a overseas employer to an affiliated United States employer, discovering United States employment sponsorship, or enrolling in an approved training or coaching course. Each of these picks desires to be fully evaluated in opposition to the skills and occasions of the same-sex spouse.

II. Transsexual Marriage

A marriage in which the two events have been born the same-sex, however where one party underwent gender reassignment surgery, might also entitle the partner to immigration benefits. The Board of Immigration Appeals held in the Matter of Lovo-Lara that DOMA did now not follow to transsexuals in a heterosexual relationship based totally on post-operative gender. Therefore, the analysis of whether the marriage is diagnosed turns lower back to the validity in the jurisdiction of the marriage.

The controlling take a look at in finding out whether or not such marriages are identified for immigration purposes is whether or not the marriage was viewed a legitimate and heterosexual marriage in the jurisdiction where the marriage occurred. The marriage in the precedent case of Matter of Lovo-Lara, as an example, happened in the kingdom of North Carolina. The transsexual spouse received a permitted trade of the intercourse on her start certificate following her gender reassignment to lady and then married her male husband. The courtroom stated that North Carolina registered their marriage as legal, however that same-sex marriage is not felony in North Carolina. Thus, the marriage was both considered heterosexual and valid in North Carolina, and the partner was entitled to immigration benefits.

A number of US states, as properly as overseas countries, have criminal precedent as to whether such a marriage is legitimate and heterosexual in that jurisdiction. In reviewing whether the marriage is legitimate and heterosexual, it is essential to observe that some jurisdictions, which includes Illinois and Texas, permit a post-operative transsexual to exchange the gender on their start certificate, but do no longer apprehend the gender reassignment as changing the individual’s intercourse for functions of marriages. Also, a marriage in which one party is a post-operative transsexual may additionally be recognized in some jurisdictions as a valid marriage, but still as a same-sex marriage. The registered same-sex marriage would now not identified for immigration purposes per DOMA.

In many jurisdictions the statute is now not clear or there is no binding precedent. In such case, USCIS might also be relaxed as to the validity of the marriage thru submission of a court docket order, professional record, or announcement from an terrific government employer indicating that the gender reassignment surgery has resulted in a trade of the person’s criminal intercourse under the regulation of the area of the marriage.

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

1. One individual underwent gender reassignment surgery; and
2. The individual who underwent gender reassignment surgical treatment has taken some thing felony steps exist and can also be required to have the legal exchange of sex identified for functions of marriage underneath the law of the vicinity of marriage; and
3. The marriage is identified underneath the law of the jurisdiction of marriage as a legitimate and heterosexual marriage.

III. Common Law Marriages

An true marriage between two people made without formal registry, regularly acknowledged as a common law marriage, is identified for functions of immigration advantages solely if common law marriages are recognized in the jurisdiction where the unregistered marriage took place. In reviewing the validity of these marriages, USCIS and DOS will appear first to decide if common regulation marriages have been diagnosed via the jurisdiction at the time of unregistered marriage, and then as to whether or not the events fulfilled all of the requirements of the jurisdiction to create a frequent regulation marriage, such as mutual agreement, cohabitation, etc.

USCIS and DOS will also seem to make certain that the recognition of the common regulation marriage with the aid of the jurisdiction bestows all of the same prison rights and obligations as people in lawfully reduced in size marriages. Factors for consideration include, but are no longer limited to, whether or not the relationship can only be terminated through divorce and if there is an intestate distribution of an estate.

Most US states no longer understand frequent law marriages. However, until the jurisdiction has invalidated frequent regulation marriages identified beneath former regulations, USCIS and DOS will rely on whether the frequent law marriage was once recognized at the time of its inception, regardless of whether or not the jurisdiction is presently recognizing new common regulation marriages.

IV. Cohabitating Partners

Cohabitating partners who have not entered into a valid, registered marriage and are now not in a recognized frequent regulation marriage are no longer eligible for the immigration benefits of a spouse. Similar to same-sex partners, heterosexual companions cohabitating in a relationship akin to marriage are eligible to observe for a one-of-a-kind visitor visa to accompany a accomplice visiting to the United States with a long-term non-immigrant visa. The cohabitating companions of a United States Citizen or Legal Permanent Resident who normally resides backyard of the United States, however is touring only temporarily lower back to the United States is additionally eligible to follow for this one of a kind traveller visa.

This specific vacationer visa authorizes entry to the United States for up to six (6) months, with extensions of up to six (6) months at a time viable from inside the United States upon in addition utility to USCIS. If the cohabitating partner desires to work in the United States, he or she will need to obtain the fantastic United States visa in his or her very own right.

It is not going that DOS will difficulty a cohabitating partner of a United States Citizen or Legal Permanent Resident a traveler visa if the United States Citizen or Legal Permanent Resident is usually dwelling in the United States, due to the presumption that the associate will now not return to their overseas residency. Cohabitating companions in these conditions will either want to achieve an gorgeous long-term non-immigrant visa or enter into a valid marriage to attain immigration benefits.

V. Plural (Polygamous) Marriages

United States regulation does no longer understand plural (i.e. “polygamous”) marriages, regardless of whether or not the marriages in query are criminal and identified in the jurisdiction of marriages. Thus, a marriage that is entered into before a previous marriage of either party is ended by using divorce, annulment or death is void and invalid for US immigration purposes. (Note: Disappearance of one partner may additionally additionally constitute the criminal cease of a marriage in sure jurisdictions.)

In instances where the soundness of the divorce is in question, USCIS and DOS seem to be to whether or not the first marriage was once utterly and legally terminated based totally on the law of the jurisdiction of the termination and whether or not the 2nd marriage was once considered as lawful at its place of celebration, as a monogamous marriage. For example, in Matter of Moncayo, the Board of Immigration Appeals located that a divorce decree that used to be issued in Ecuador in the absence of one party to the divorce was not legitimate in New York, thus the party’s remarriage in New York was once now not valid.

Even when the intent is for a monogamous marriage, persons looking for immigration advantages as, or for, a spouse that has entered into a preceding marriage make sure that the prior marriage used to be precise terminated. If the prior marriage was once now not top terminated and the present day marriage is void, the beneficiary/spouse will no longer be eligible for immigration advantages till the prior marriage is true terminated and a valid marriage occurs.
Whilst polygamy is legal and practiced in many customs and cultures round the world, it is illegal in the United States and immigration regulation recognizes only the first of the plural marriages. The discussion of immigration advantages in such marriages will be discussed from the standpoint of one husband with plural wives; however, the dialogue 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 additionally attain a spinoff non-immigrant visa, such as the L-2 visa. It is now not truly that solely one wife might also accompany the polygamist husband, it is that only his first wife is eligible for a spinoff visa as the marriages to later better halves are void and invalid below United States immigration law.

The second spouse and any later other halves will need to qualify for a long-term non-immigrant visa in their own right, as the main applicant, to able to accompany their husband to the United States on a long-term basis. DOS also provides officers at United States Embassies and Consulates the discretion to trouble traveler visas to plural wives to accompany their husband.

While the husband and the first wife are eligible for non-immigrant visas, the Immigration and Nationality Act ? 212(a)(10)(A) renders polygamists ineligible for immigrant visas. This part solely renders folks that practice polygamy inadmissible and it does now not extend to people who in basic terms believe in or recommend polygamy except themselves getting into into plural marriages. A polygamist that desires to turn out to be a Legal Permanent Resident of the United States will need to divorce all other halves without his first and abandon the exercise of polygamy before go-off the residency process. DOS consular officers are steered to be suspicious of former polygamists who divorce plural other halves just earlier than moving forward with the residency method and ought to evaluate the remember to make sure that the former polygamist will not resume the practice following issuance of Legal Permanent Resident status.

VI. Incestuous Marriages

An incestuous marriage between close loved ones will only be diagnosed for immigration advantages if the marriage was once valid at the location of foundation and the cohabitation of the events at their supposed residence in the United States will now not incur crook punishment. When searching at the factor of the meant residence, the controlling element is not whether or not the nation performs such marriages, but rather if the nation deems such marriages or relationships illegal. Marriages by way of cousins and via an uncle and niece are now not unlawful in many states and have led to immigration benefits.


All of the above-discussed situations create complex and regularly difficult immigration instances that should be dealt with with care. USCIS and DOS do no longer provide instruction or specific guidelines on the fantastic presentation of these cases, nor ought to it be assumed that USCIS and DOS are thoroughly practiced in such situations. The practise of immigration attorneys who are well-versed in such instances will help to make certain that the splendid visa class is sought and that the legal eligibility for the immigration benefit, with fantastic documentation, is fully proven to USCIS and DOS for the most efficient processing.

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

For extra data please contact Ortega-Medina & Associates,

Orlando Ortega-Medina is lead guidance for the US business immigration law firm of Ortega-Medina & Associates, headquartered in San Francisco, California. The firm also continues an EU gateway workplace in London, UK. Mr. Ortega-Medina has precise knowledge and insight into complex visa cases, and is regularly engaged by means of different tips to troubleshoot visa denials.

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