Valid Marriages for Immigration Purposes

Marriage for immigration,



There are many immigration benefits based on marriage. In addition to family-sponsored green card categories [see category] that allow a U.S. citizen or lawful permanent resident to petition for his or her spouse, numerous visa categories provide for visa or benefits for derivative spouses. In most cases, the fact of a marriage will be obvious — documented by a marriage certificate or other legal proof of marriage. However, there are certain cases and scenarios where there may be questions as to whether a purported marriage or legal union is a “marriage” for purposes of the immigration laws. We will examine some of the more complicated scenarios in this article.

Please note that we will not discuss the concept of a bona fide marriage in this article. Notwithstanding the existence of a legal marriage, the U.S. government does not provide immigration benefits based on sham marriages, that is, marriages entered into for the sole purpose of circumventing the immigration laws. We discuss marriage fraud and the penalties for enterting into sham marriages in other articles:

Marriage fraud [see article]
Consequences of marriage fraud [see article]
Determining Whether Previous Marriage was Bona Fide [see article]
Elements of a bona fide marriage [see article]
Analysis of marriage fraud bar [see article]

This article focuses solely on discussing specific marital or legal union arrangements that raise valid marriage questions in and of themselves, separate and apart from the intent of the parties entering into the arrangements.

Common resources

We rely extensively on State Department guidance for consular officers at 9 FAM 102.8 [link] and USCIS guidance for determining whether a marriage is valid for naturalization purposes at 12 USCIS-PM G..2 [link].

Lack of statutory definition of “marriage”

The Immigration and Nationality Act does not define the term “marriage.” 9 FAM 102.8-1(A). However, numerous statutes, regulations, precedents, and policy statements provide guidance for what constitutes a marriage under the immigration laws.

Place of celebration rule

“The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls.” 9 FAM 102.8-1(B)(a); See also 12 USCIS-PM G.2(A)(1). The principle was first articulated in an administrative precedent decision by the Acting Attorney General in 1952: “[T]he generally accepted rule is that the validity of a marriage is governed by the law of the place of celebration … That is the rule to be applied here…” Matter of P-, 4 I&N Dec. 610, 613-14 (Acting A.G. 1952) [PDF version]; See also Matter of Zeleniak, 26 I&N Dec. 158, 160 (BIA 2013) [PDF version]; Matter of Lovo, 23 I&N Dec. 746, 748 (BIA 2005) [PDF version]; Matter of Hosseinian, 19 I&N Dec. 453, 455 (BIA 1987) [PDF version]; Matter of Luna, 18 I&N Dec. 385, 386 (BIA 1983) [PDF version].

Thus, the first thing that immigration authorities will consider is whether the marriage in question was valid under the laws of the jurisdiction in which it was celebrated, whether foreign or domestic. However, while it is necessary for a marriage to be valid under the law of the jurisdiction in which it was performed, that is not sufficient in all cases. Below, we will work through special cases and examine the rules that attach to each.

Same-Sex Marriages

Same-sex marriages are valid for immigration purposes provided that the marriage was valid in the place of celebration. Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013); See also United States v. Windsor, 133 S.Ct. 2675, 2695-96 (2013) (invalidating provisions of Defense of Marriage Act). Because the government applies the place of celebration rule, “[t]he same-sex marriage is valid even if the applicant is applying in a country in which the same-sex marriage is illegal.” 9 FAM 102.8-1(E). The USCIS explains the general rule in its Policy Manual:

Since the place-of-celebration rule governs same-sex marriages in exactly the same way that it governs opposite-sex marriages, unless the marriage is polygamous or otherwise falls within an exception to the place-of-celebration rule as discussed above, the legal validity of a same-sex marriage is determined exclusively by the law of the jurisdiction where the marriage was celebrated.
12 USCIS-PM G.2(A)(1).

Individuals living in countries that do not recognize same-sex marriages will thus be deemed to have valid marriages for immigration purposes so long as their marriages were celebrated in a jurisdiction which recognizes same-sex marriages. Provided that the place of celebration requirement is satisfied, the Service will apply the same criteria to determining whether the same-sex marriage is otherwise valid that it would to any other marriage.

Marriages Involving Transgender Persons

The USCIS applies the same rules with respect to marriages involving transgender persons as it does to marriages involving same sex marriages. The test for determining whether a marriage involving transgender persons is valid is whether the marriage was valid in the place of celebration.

Common Law Marriage and Civil Unions

“The concept of common law marriage presupposes an honest good-faith intention on the part of two persons, free to marry, to live together as husband and wife from the inception of the relationship.” 12 USCIS-PM G.2(B). “[A] common law marriage or cohabitation is a 'valid marriage' for purposes of visa adjudication only if it is legally recognized in the place in which the relationship was created and is fully equivalent in every respect to a traditional marriage.” 9 FAM 102.8-1(F).

Immigration adjudicators have long recognized that valid common law marriages are valid marriages under the immigration laws. See e.g., Matter of Alvarez-Quintana, 14 I&N Dec. 255 (BIA 1973) [PDF version]; Matter of Ramirez, 13 I&N Dec. 584 (BIA 1970) [PDF version]; Matter of B-, 3 I&N Dec. 227 (C.O. 1948; BIA 1948) [PDF version]. Moreover, the evidence of a prior common law marriage without evidence that the potential common law marriage was legally terminated may be relevant to determining whether a subsequent marriage is valid. See e.g., Matter of S-, 1 I&N Dec. 606 (BIA 1943; A.G. 1943) [PDF version].

The State Department instructs consular officers that in order for a common law marriage to be “fully equivalent” to a traditional marriage, “the relationship must bestow all the same legal rights and duties possessed by partners in a lawfully contracted marriage…” 9 FAM 102.8-1(F). These rights and duties include:

1. The relationship can only be terminated by divorce or death;
2. There is a potential right to alimony;
3. There is a right to interstate distribution of an estate; and
4. There is a right of custody if there are children.

The USCIS provides a simpler set of criteria for naturalization cases:

The parties must live in the jurisdiction which recognizes common law marriages;
The parties must meet the qualifications for common law marriage for that jurisdiction.
12 USCIS-PM G.2(B)

The Board has published several instructive decisions on considering the validity of purported common law marriages in different jurisdictions. See e.g., Matter of Alvarez-Quintana, 14 I&N Dec. 255 (BIA 1973) (analyzing whether common law marriage existed under Texas law); Matter of Ramirez, 13 I&N Dec. 584 (Mexican law); Matter of Carrubba, 11 I&N Dec. 914 (BIA 1966) [PDF version] (finding petitioner had not been in a prior common law marriage in Ohio); Matter of Megalogenis, 10 I&N Dec. 609 (BIA 1964) (finding common law marriage existed under Pennsylvania law despite lack of consummation).

Civil Unions

The State Department applies the same rules to considering whether a civil union constitutes a valid marriage as it does to common law marriages:

Like common law marriages, a civil union or domestic partnership only qualifies as a “valid” marriage for visa adjudication purposes if the place of celebration recognizes the status as equal in all respects to a marriage.
9 FAM 102.8-1(G).

Thus, adjudicators will apply the policies for determining whether a common law marriage is a marriage for immigration purposes to determining whether a civil union is a marriage for immigration purposes.

Proxy marriages

Section 101(a)(35) of the Immigration and Nationality Act provides that “[t]he term 'spouse', 'wife', or 'husband' do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.”

Proxy marriages are not valid for immigration purposes unless they have been consummated. The U.S. Department of State has taken the position that once a proxy marriage is consummated, it “is deemed to have been valid as of the date of the proxy ceremony.” 9 FAM 108.8-1(D)(1). While a party to an unconsummated proxy marriage is not eligible for immigration benefits requiring him or her to be a spouse, the State Department notes that “a party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancee.” 9 FAM 108.8-1(D)(2).

Note that the consummation requirement does apply to non-proxy marriages. Matter of M-, 7 I&N Dec. 601, 604 (BIA 1957) [PDF version] (“[W]e are satisfied that where a marriage has been duly solemnized in accordance with the laws of the place where it is performed, the marriage comes into existence at that moment regardless of whether it is followed by sexual intercourse.”); See also Lutwak v. United States, 344 U.S. 604 (1953). However, notwithstanding the basic point that a non-proxy marriage may exist without consummation, the lack of consummation may be considered in determining whether the marriage is bona fide. See e.g., Matter of Peterson, 12 I&N Dec. 663 (BIA 1968) (finding that a marriage was valid notwithstanding lack of consummation, see our article on Matter of Peterson).

Legal separation

The Board has held that “where the parties enter into a valid marriage, and there is nothing to show that they have since obtained a legal separation or dissolution of the marriage, a visa petition will not be denied solely because the parties are not residing together.” Matter of Lenning, 17 I&N Dec. 476, 477 (BIA 1980) [PDF version]; See also Matter of Pierce, 17 I&N Dec. 456, 456-57 (BIA 1980) [PDF version]; Matter of Boromand, 17 I&N Dec. 450 (BIA 1980) [PDF version]; Matter of McKee 17 I&N Dec. 332 (BIA 1980) [PDF version]. “However, the existence of a valid legal separation presents an altogether different set of considerations.” Matter of Lenning, 17 I&N Dec. at 477. A marriage is not valid for immigration purposes when there exists a legal separation agreement or decree from a court which “renders the relationship of the parties as if they were not married at all.” Id.

The State Department echoes the Board's guidance while appending a more specific requirement to what constitutes a legal separation agreement that terminates a marriage. Consular officers are instructed to not find a marriage invalid solely because the parties have ceased cohabiting. However, if there exists a “written agreement recognized by a court or by a court order” providing that the parties are legally separated, the marriage is no longer valid for immigration purposes even though the couple has yet to obtain a formal divorce. 9 FAM 102.8-1(I). Thus, under State Department guidance, a legal separation agreement must either be recognized by a court or by a court order in order to render a marriage void for immigration purposes.

Subsequent marriage after legal separation

The State Department's guidance on legal separation short of divorce implicates cases wherein one party may seek immigration benefits based on a subsequent marriage. State provides that if the party has a separation agreement that is not recognized in the state in which he or she actually resides, the individual would need to obtain a formal divorce from his or her prior spouse before immigration adjudicators would recognize the subsequent marriage as valid.

Marriages with public policy ground issues

Certain marriages are always invalid for immigration purposes, notwithstanding their potential validity under the laws of the jurisdiction of celebration.

Polygamous marriages

Polygamous marriages are invalid for immigration purposes. “[P]olygamous marriage cannot be recognized as a valid marriage for immigration purposes…” Matter of H, 9 I&N Dec. 640, 642 (BIA 1962) [PDF version].

Although inadmissibility is beyond the scope of the instant article, we note that the Immigration and Nationality Act provides that any alien seeking entry into the United States to practice polygamy is inadmissible. INA 212(a)(10)(A). Practicing polygamy also constitutes a bar to good moral character. INA 101(f)(3).


Bigamy, “a criminal act resulting from having more than one spouse at a time without benefit of a prior divorce,” is distinguishable from polygamy, but also carries serious immigration consequences. 9 FAM 302.12-2(B)(1); See also Matter of G-, 6 I&N Dec. 9 (BIA 1953) [PDF version]. The Attorney General has held that bigamy is categorically a crime involving moral turpitude. Matter of F-J-E-, 2 I&N Dec. 328, 337-38 (BIA 1945, A.G. 1945, BIA 1945) [PDF version]. However, the USCIS Policy Manual notes that there are limited statutory exemptions from marriage-related disabilities involving bigamy for certain battered spouses. INA 204(a)(1)(A)(ii)(II) and INA 319(a).

Marriage between relatives and marriages involving minors

Although cousin marriages and marriages involving minors implicate different issues in many respects, the rules for determining validity rely on many of the same precedents. For these reasons, we group them together.

Cases involving marriage between cousins are generally governed by the place-of-celebration rule. However, several precedents provide that the marriage must also be in accord with the laws of the place of intended residence. For example, the Board has held that where first cousins solemnized their marriage in South Carolina, which allows marriage between first cousins, but intended to live in Wisconsin, which prohibits such marriages, the marriage was invalid for immigration purposes. Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) [PDF version] (see article on Matter of Zappia). The Zappia rule leads to some complicated scenarios. For example, while Michigan in 1980 did not allow first cousin marriages, its laws recognized first cousin marriages solemnized elsewhere. For that reason, an I.N.S. regional commissioner held in what was published as a precedential decision that a K-1 fiancee petition for a first cousin fiancee who intended to reside in Michigan with his wife was approvable because they could marry outside Michigan and Michigan would recognize the marriage as valid. Matter of Balodis, 17 I&N Dec. 428 (Reg. Comm. 1980) [PDF version] (see article on Matter of Balodis); See also Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976) [PDF version] (uncle-niece marriage valid because even though New York prohibits such marriages, it recognizes them if they are solemnized in a jurisdiction which recognizes them as valid — see article on Matter of Da Silva); Matter of Hirabayashi, 10 I&N Dec. 722 (BIA 1964) [PDF version].

(Note that no U.S. State recognizes parent-child or sibling marriages as valid. Thus, all parent-child and sibling marriages are invalid under the immigration laws under the foregoing precedents, regardless of the laws of the jurisdiction of solemnization.)

Similar rules apply to marriages involving minors [see article]. The Immigration and Nationality Act does not provide for a minimum age of a petitioner or beneficiary in an adjudication depending on a valid marriage. We discussed the current USCIS policies for marriages involving at least one minor in a separate article. In order for a marriage involving a minor to be valid for immigration purposes, it must have been valid in the jurisdiction of celebration and it must be valid where the parties intend to reside — under the same rules and regulations discussed above for first cousin marriages.


This article provides non-exhaustive guidance on a variety of marriage and civil union scenarios which may raise questions from an immigration perspective. However, note that individuals with marriages that do not implicate any of the above scenarios will still need to establish that their marriages are bona fide in order to obtain benefits based on their marriages.