Representing Immigrants in Unconventional Marriages Or Partnership BY: LAURA J
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Representing Immigrants in Unconventional Marriages or Partnership BY: LAURA J. DANIELSON April 2006 (Laura can also be reached at our London office) I. INTRODUCTION: As immigration practitioners, we are occasionally visited by clients who are in atypical or unconventional relationships, ranging from couples who are living apart, to those whose unions originated via mail-order catalogs, to those who are in same sex or transsexual relationships. Even conventional and traditional “arranged marriages” can pose obstacles in that proof of courtship is often absent. Obviously, not all of these arrangements will result in immigration benefits. This article will discuss each of these types of relationships and will offer suggestions on how best to proceed to ensure that the couple can remain together given the constraints of U.S. immigration law. The INA does not define the terms “marriage,” “spouse,” “husband” or “wife.” Case law has defined “spouse” as a party to a valid marriage that has not been legally terminated.1 A marriage is generally considered legally valid if recognized as such by the law of the jurisdiction where the marriage took place.2 There are two exceptions to this rule. The first, which is codified in the INA, is that no immigration or nationality benefits should accrue where the parties were not physically in one another’s presence at the time of marriage, unless the marriage has been consummated.3 As pointed out by Daniel Levy in his Immigration Briefing article entitled, “The Family in Immigration and Nationality Law: Part I,” this exception was designed to inhibit “mail order” or “proxy marriages.”4 Please note that consummation is not required except in situations where the parties were not in the presence of each other at the time of marriage. The second exception to the general rule that marriages are considered valid based on the laws of the jurisdiction where they occurred, is that marriages will not be recognized if they are “repugnant to the public policy of the domicile of the parties, in respect to polygamy, incest, or miscegenation, or otherwise contrary to its positive laws.”5 As Levy points out, miscegenation is no longer an issue since state laws barring marriage between people of different races have been determined to be unconstitutional.6 Marriages involving polygamy or couples of the same sex, however, have been found to violate U.S. public policy, and as such have been declared invalid for the purpose of conferring immigration benefits.7 Unions involving homosexual couples will be discussed in greater detail below. Once a marriage has been determined to be legal for the purposes of conferring benefits under the INA, a second line of inquiry is made to ascertain whether the marriage was bona fide at its inception and is not a “sham marriage” as prohibited under the Immigration Marriage Fraud Amendments of 1986.8 The test of its viability is whether the parties intended to establish a life together at the time they married.9 The actual type of marital relationship can take many forms so long as the parties intend to establish a life together. Therefore the USCIS cannot require that the parties share a certain type of marital life or that they provide specific types of documentation. As pointed out by Daniel Levy, the Ninth Circuit has stated that, “The concept of establishing a life as marital partners contains no federal dictate about the kind of life that the partners may choose to lead.”10 As a practical matter, however, the more unorthodox the marital arrangement, the greater the scrutiny that is going to be applied by the Service in reviewing marriage based petitions. The cautious immigration practitioner will want to document such applications very thoroughly. II. MAIL ORDER BRIDES: The number of mail-order bride businesses has grown rapidly over the past decade, and many of us see clients from time to time whose unions were initiated via these businesses. In February 1999 the USCIS released a report to Congress in response to its request that the Service conduct a study of mail-order marriages. The primary purpose of the study was to review such applications for evidence of either domestic violence or marriage fraud.11 This study estimated that approximately 200 mail-order bride companies arrange from between 4,000 and 6,000 marriages in the U.S. each year,12 primarily from Russia and Asia. Mail-order marriage is not a new phenomenon, but as this study pointed out, is an “inseparable part of North American history and the settlement of the United States.” In my own family’s lore is the story of a great great grandfather who was too busy plowing his field in western Minnesota to travel to the train station to greet his newly arrived, sixteen year old Swedish mail order bride. Having ordered her from a catalog after the death of his first wife during childbirth, he send his eldest son to the train station instead. The concern over today’s wife-import businesses relates to the foreign-born woman’s relative lack of power, compared to that of her U.S. husband. In fact, studies have shown that frequently, “those who have used the mail-order bride route to find a mate have control in mind more than a loving, enduring relationship.”13 At the time of the USCIS study, however, the available data showed that very few mail-order brides had availed themselves of the Violence Against Women Act (“VAWA”) provisions under Section 204(a)(1)(A)(iii) of the INA.14 Despite this low number of reported abused mail-order spouses, USCIS finds in its report that, “there is every reason to expect the number…to increase in the future, as the awareness of the VAWA provisions grows and organizations that provide immigration assistance and counseling to abused women learn how to present cases effectively to the USCIS.”15 Although Robert Scholes states in his report (which was cited by the USCIS Report) that, “There is no question that many of the alien women who advertise for U.S. husbands are far more interested in gaining permanent residence alien status than in gaining a good marriage,”16 the USCIS researchers could only document that one percent of marriage cases involving mail-order marriages were denied for fraud. The report concludes, “At a rate of 1 percent, then, this study did not demonstrate a significant role played by the matchmaking industry in marriage fraud.”17 Despite its findings of low rates of fraud and domestic abuse among mail-order marriage cases, the USCIS concluded that there is a need for continued monitoring of mail-order marriages. Those of us presenting such cases to the Service should not be surprised if met by a wary reception on the part of the examiner. Particularly important will be the need to document the developing and ongoing relationship. Many mail-order brides initially come to the U.S. on fiancé visas, which require that the parties have met personally at least once within the two years preceding the filing of the petition.18 To that end, it is very important to have copies of airline tickets, hotel reservations, photographs, and other evidence of the couple’s time spent together within that time frame. Additionally, it is useful to include copies of e-mail correspondence, post-marked letters, and faxes sent between the parties, as well as receipts evidencing an exchange of gifts. In the final analysis, if the bona fides of the case are well documented and there are no other grounds of inadmissibility, the Service will not be able to deny the admission of a mail-order bride. III. TRADITIONAL ARRANGED MARRIAGES: A traditional arranged marriage is significantly distinct from that arranged within the mail-order bride industry. In the latter, men pay fees to the owners of mail-order businesses in order to meet women, who are often from outside their culture, and the families of the marrying parties are not typically involved. In the traditional arranged marriage, by contrast, the parents of the couple are customarily heavily involved in the decision-making process. Traditional arranged marriages encourage the considerations of family, culture, ethnicity, and religion. Fees are not generally paid, except when there are dowries. Sometimes matchmakers are consulted and hired to facilitate the process. Arranged marriages often take place quickly and without any significant period of courtship. In some cultures there is no courtship whatsoever, making it difficult to document the bona fides of the relationship. Fortunately, most arranged marriages often involved elaborate engagement ceremonies or wedding rituals, which can be photographed and explained in detail. Additionally, an immigration attorney should never shy away from admitting that a marriage is arranged, but rather should emphasize the significance of such a marriage within certain traditional cultures. In rare instances, a U.S. party will want to petition for a future mate, sight unseen. Although proxy marriage is unavailable, it is possible to petition for a fiancé. There is an exception to the rule, “where there is extreme hardship or long established custom.”19 One important point about the fiancé visa is that the foreign fiancé cannot marry anyone except the petitioning party. It can happen that the U.S. fiancé backs out of the arrangement at the last moment, to be replaced by another. USCIS will not accept replacement spouses; the foreign fiancé will have to return home and be petitioned for anew. IV. HOMOSEXUAL MARRIAGES: As discussed earlier, same sex marriages, even if legal within a foreign jurisdiction, have been determined to violate U.S. public policy. In fact, until very recently, homosexuals were themselves considered to be inadmissible to the U.S.