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. as being afflicted with “psychopathic personality, sexual deviation, or a mental defect.”20 The INA was specifically amended in 1965 to include the words “sexual deviation,” and anyone who admitted to being homosexual was refused entry.21 In 1974, the American Psychiatric Association removed homosexuality from its list of mental illnesses, but it wasn’t until 1990 that Congress amended the INA to remove the section that excluded homosexuals.22

In 1982 the U.S. Court of Appeals for the Ninth Circuit held in Adams v. Howerton, that Congress intended to preclude a gay marriage from conferring benefits even if the marriage was valid within the jurisdiction where it took place.23 This decision was predicated on the homosexual exclusion ground, which has since been repealed. It is still impossible to argue that Congress recognizes such marriages, however, because the Defense of Marriage Act (“DOMA”), enacted in 1996, defines marriage as a “legal union between one man and one woman as husband and wife.”24 The Act applies in determining the meaning of any Act of Congress and therefore applies to the INA.25

The U.S. lags behind a number of its western counterparts, which do confer immigration benefits on the basis of long-term unmarried partnerships. Same-sex “registered partnerships” are entitled to the same immigration benefits as heterosexual married couples in Denmark, Norway, Sweden, and Iceland. Other countries conferring certain immigration benefits based on same-sex relationships are the Netherlands, France, Australia, New Zealand, the United Kingdom, Belgium, Canada, Finland, South Africa, and Namibia.26

Because the U.S. fails to grant immigration benefits to same sex couples, the first line of inquiry is to review the foreign partner’s eligibility for benefits independent of the relationship. Moreover, the same-sex partner of a nonimmigrant may be able to obtain B-2 classification under a little known U.S. State Dept. program for cohabitating partners, whether of the same or opposite sex.27 “The fact that the cohabitating partner may be living in the U.S. for an extended period is not a bar to B-2 classification.”28 The difficulty with this classification, however, is that the B-2 partners are not exempt from the requirement of establishing residence abroad or INA 214(b). This may factor into an immigration attorney’s strategy on when or whether to apply for permanent residence for the principal cohabitating partner.

Occasionally people will legally adopt their same sex partner in an attempt to create legal relationships that will facilitate inheritance or medical consent procedures. Adoption is not a viable solution in the immigration context, however, because to confer benefits the adoption must have occurred before the child reaches the age of sixteen and has been in the legal custody of the adopting parent for two years.29 Even if the age requirement could be met, as D. L. Hawley points out in her article, “such a relationship between an adult and a minor under the age of 16 years, would be a sexual criminal offense in most jurisdictions in the country.”30

Finally, it is not uncommon for false marriages to be arranged with a cooperative person of the opposite sex as a desperate option by some who have no other means of remaining in the U.S. with their same-sex partners. Under IMFA, this could result in severe penalties, including a permanent bar on future immigration. Also, no matter how sympathetic some immigration attorneys may be to these situations, we put ourselves at serious risk if we knowingly facilitate such arrangements.

V. TRANSSEXUALS: On occasion an immigration attorney may encounter a foreign person who has had a sex change operation and who thereafter seeks an immigration benefit based on marriage to a U.S. spouse. I have encountered two such situations in my career, and found that USCIS was consistent in its adjudication of both. At least in my jurisdiction, USCIS takes the position that the sex of the foreign spouse is that which is stated on the person’s passport, regardless of person’s new physiological characteristics. In both cases, the sex changes involved male to female operations. In the first, the marriage was to a man; in the second the marriage was to a woman. Surprisingly, only in the second instance, where the woman married another woman, did USCIS recognize the union and grant immigration benefits. The marriage was lawful because the woman’s identity documentation still classified her as male.

American individuals who change genders typically get reclassified by petitioning the countries in which they were born to change the gender on their birth certificates. Only after legally changing their gender can they go forward and marry individuals of the opposite sex. Foreign individuals could similarly petition their home countries to get the gender on their passports switched, although certain countries would not be likely to cooperate. It would be interesting to see whether a foreign transsexual could obtain a U.S. post-operative court order legally reclassifying his or her gender, and whether USCIS would reconsider its position of recognizing only the gender listed on the passport.

VI. COUPLES NOT COHABITATING: Just as there are sometimes unmarried couples who are cohabitating, there are sometimes legitimately married couples who aren’t. Reasons for living apart vary, but the most common include holding jobs in separate states, going to school in separate locations, or being separated for lengthy periods due to one spouse caring for a sick relative. Sometimes these arrangements can go on for many years, longer than the period of time in which USCIS subjects a marriage to close scrutiny. Cohabitation is not a requirement for conferring immigration benefits, and USCIS can and will approve such applications.

In order to be approved in such cases, the couple should admit to living in separate residences but also submit detailed documentation explaining why they are living apart. Evidence should include such things as their own affidavits describing the situation; letters from employers confirming employment, if the separation is job-related; affidavits or letters of support from others, such as family members or a physicians; and/or school records. Extra care should also be taken to establish the marriage’s bona fides, despite the living arrangements, such as: copies of phone bills and e-mail or other postmarked correspondences showing frequent communication; ticket stubs or invoices showing trips that may have been taken together; proof of co-mingled finances; proof of gifts purchased and sent to one another’s addresses; affidavits of colleagues or neighbors who have knowledge that the couple is together; and photos of various different times spent together.31 As Beth Stickney says in an Immigration Briefing article that covers the subject of married partners living apart, “A general rule for documentation is: the more attenuated the apparent connection between the married couple, the greater the volume of evidence the parties should submit.”32

If the couple is living apart at the time of the I-751 application, two years after the initial grant of conditional permanent residence, the same logic applies. One should forewarn the couple that an in-person interview by USCIS is highly likely in such a situation, but again, there is no justification for USCIS to deny an application merely because of failure to cohabitate.

VII. SUBSEQUENT IMMIGRATION-RELATED MARRIAGES: It is always prudent to obtain the immigration history of both the foreign and the U.S. spouse, as it is pertinent to know whether the U.S. spouse acquired status as the result of a prior marriage. If someone acquired lawful permanent residence through marriage to a U.S. spouse and then subsequently divorced, he or she is barred from similarly conferring such status to a new spouse for a period of 5 years.33

Similarly, it is essential to know whether the foreign spouse has ever submitted a prior marriage application. If a prior marriage application was denied due to marriage fraud, under IMFA the foreign spouse is forever barred from future marriage based immigration benefits.34 It would be a big waste of time and resources to pursue the second case no matter how legitimate the second marriage. In some instances, however, the application may never have been adjudicated by USCIS, which may have “shelved” it due to suspected fraud. If the first marriage dissolved and the foreign spouse subsequently filed a second marriage-based application, he or she may be faced with the prospect of establishing not only the bona fides of the current relationship, but that there was no fraud in the first. This is often exceedingly difficult to do, particularly if much time has passed and the whereabouts of the first spouse is unknown.

In other instances, the foreign spouse may have been successful in acquiring conditional permanent residence, but the marriage dissolved prior to the two year period and the conditional status subsequently was terminated, either due to a denial of the I-751 application or the failure to file. At issue is whether such an individual can subsequently file for adjustment of status based on a new marriage. In particular, INA Section 245(d) provides that the “Attorney General may not adjust the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 216.” Section 245(d) was added to the INA by IMFA in order to deter marriage fraud. Fortunately, there is a BIA decision directly on point, Matter of Stockwell, which held that this provision does not bar someone from adjusting status AFTER the two year period of conditional residence has passed.35 The BIA held that adjustment would only be barred if there was a failure to demonstrate the bona fides of the second marriage or if the Service had concluded that the prior marriage was entered into to evade the immigration laws.

VIII. CONCLUSION: Legitimate marital relationships take many forms. They can be traditionally arranged between members of the same culture or arranged via the internet between people born worlds apart. They can have involved simple private vows or ornate ceremonies. They can be between cohabitating partners whose unions are recognized in foreign jurisdictions or between parties who have legal unions but who are not cohabitating. Most are valid for conferring immigration benefits, depending on whether they are legal in the jurisdictions where they took place and whether they do not violate current U.S. public policy. USCIS does not have a set of requirements that all marriages must conform to and must look at each case individually. As is almost always the case, the burden of proof is upon the petitioning party; the more unorthodox cases will therefore require a greater degree of documentation. Nonetheless, if the marriage is legal, the relationship was not entered into for the sake of conferring immigration benefits, and if it doesn’t break up under the strain, the couple should eventually be able to prevail.

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1. Matter of P-, 4 I&N Dec. at 613. Cf. Stokes v. INS, 393 F. Supp. 24 (S.D.N.Y. 1975); Matter of Lew, 11 I & N Dec. 148 (Dist. Dir. 965); See also D. Levy, “The Family in Immigration and Nationality Law: Part I,” 92-9 Immigration Briefings (Sept. 1992) Hereinafter, D. Levy 2. Gee Chee On v. Brownell, 253 F.2d 814, 817 (5th Cir. 1958); Matter of P – 4 I&N Dec. at 613; Matter of G-, 6 I&N Dec. 337 (BIA 1954) 3. INA §191(a)(35) 4. D. Levy at 4 5. Matter of H-, 9 I&N Dec. 640, 641 (BIA 1962) 6. Loving v. Virginia, 388 U.S. 1 (1967); D. Levy at 4 7. Matter of H-, 9 I & N Dec. 640, 642 (BIA 1962); See also INA §212(a)(9)(A), which bars the entry of “practicing polygamists”; Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982); The Defense of Marriage Act, Pub. Law 104-199, 110 Stat. 2419 8. Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99 639, 100 Stat. 3537 9. Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975) 10. Id. At 1201, 1202; D. Levy at 10 11. INS Report to Congress under Section 652 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 at 2 12. Id. at 8, citing Robert J. Scholes, “How Many Mail-Order Brides?” Immigration Review, No. 28, Spring (1997) 13. R. Scholes at 3. 14. INS Report to Congress at 10, stating that of the nearly 400 VAWA cases reviewed, only two involved mail-order matches 15. Id. 16. R. Scholes at 5. 17. INS Report to Congress at 10 18. 8 CFR §214.2(k)(2) 19. 8 CFR §214.2(k)(2) 20. INA §212(a)(4) 21. D.L. Hawley, “Gays, Lesbians and Immigration,” No. 99-08 Immigration Briefings (Aug. 1999) 22. Immigration Act of 1990, Pub. Law No. 101-649 § 601. 23. Adams v. Howerton, 673. F.2d 1036 (9th Cir. 1982) 24. Pub. Law 104-199, 110 Stat. 2419 25. Defense of Marriage Act, report of the Office of General Counsel, GAO/OGC-97-16 includes a list of all affected sections of federal statutes, including the INA. 26. D. Hammond, “Immigration and Sexual Orientation: Developing Standards, Options, and Obstacles,” 77 Interpreter Releases 113-120 (January 24, 2000) 27. “B-2 Classification for Cohabitating Partners,” posted on AILA InfoNet at Doc. No. 01071131 (July 11, 2001) 28. Id. 29. INA §101(c)(1) 30. D. L. Hawley at 10 31. B. Stickney, “Conditional and Permanent Residency Through Marriage: Part II,” No. 99-11 Immigration Briefings (Nov. 1999) 32. Id. 33. INA §204(a)(2)(A)(i), 8 CFR §204.2(a)(1)(i)(A) 34. INA §204(c) 35. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991)