Other Pages Relating to Marriage Proving Bona Fide Marriage Bona Fide Marriage Exemption Letter Conditional Residency Removal Of Conditions More on Marriage
<aside> <img src="/icons/asterisk_purple.svg" alt="/icons/asterisk_purple.svg" width="40px" /> See also:
</aside>
*Matter of Laureano,* 19 I&N Dec. 1 (BIA 1983)
SOURCE: 9 FAM 102.8 (06/2024) https://fam.state.gov/fam/09FAM/09FAM010208.html
INA §1101 (35) The 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.
(CT:VISA-2005; 06-03-2024)
a. Law of Place of Celebration Controls: The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls (except as otherwise noted below). If the marriage was legally performed in the place of celebration and legally recognized, then the marriage is valid for visa adjudication purposes. Any prior marriage, of either party, must be legally terminated before the later marriage.
b. Void for Public Policy: Certain marriages that are legal in the place of celebration but are void under state law as contrary to public policy, are not valid for visa adjudication purposes.
(1) Polygamous Marriages: Polygamous marriages are not recognized as a matter of federal public policy. See Matter of H-, 9 I&N Dec. 640 (BIA 1962). Any prior marriage, of either party, must be legally terminated before the later marriage.
(2) Marriage Between Relatives: Certain marriages between relatives may be void because of public policy concerns even if the place of celebration recognizes the marriage.
(a) A marriage that is void under state law, such as a relative marriage, may be recognized as valid by the state of intended immigration.
(b) The legal thresholds vary state by state. For example, first cousins may not marry in Michigan and such marriages in Michigan are void from their inception (M.C.L.A. 551.3 (2010)). A 1973 ruling of the Michigan Supreme Court, however, found a marriage between first cousins that took place in Hungary **was nevertheless valid in Michigan. See Toth v. Toth, 50 Mich. App 150, 212 N.W.2d 812 (1973).
(c) In any case where you suspect that a marriage may not be valid for visa adjudication purposes because the parties are biological relations such as siblings, uncle-niece, or first cousins, you may request an AO from L/CA.
(3) Minor Marriage: Certain underage marriages involving an individual under the age of 18 may be void because of public policy concerns even if the place of celebration recognizes the marriage as valid.
(a) Legal thresholds for underage marriage vary state by state. Some states may recognize a marriage performed in another jurisdiction even if state law would not allow the parties to enter a marriage in that state, while other states would not recognize such a marriage because it violates the public policy of the state. In any case where you suspect that a marriage may not be valid in the state where the applicant intends to reside because one or both of the parties are underage or were potentially underage at the time of marriage, you should request an AO from L/CA.
(b) Legal thresholds for sexual consent also vary state by state. If you find that the applicant intends to reside in a state where the marital relationship will likely result in the commission of unlawful activity (i.e., statutory rape where there is no exception for marriage), you should request an AO from L/CA to determine if the visa should be refused under INA 212(a)(3)(A)(ii) based on intent to engage in unlawful activity.
(c) In the context of IV processing, a minor can successfully petition for a spouse. However, family-based IVs require that the petitioner submit an I-864, Affidavit of Support Under Section 213A of the INA. INA 213A(f)(1)(B) requires that a petitioner must be at least 18 years of age to qualify as a “sponsor” on an I-864. In any case involving a spousal petitioner who is under the age of 18, you should refuse the visa application under INA 212(a)(4)(A) as a public charge as the petitioner cannot properly submit the required I-864. While a joint sponsor may be used in cases in which the petitioner does not meet the income requirement found at INA 213A(f)(1)(E), the age requirement cannot be overcome with a joint sponsor. If the petitioner later reaches age 18 and meets all other requirements, the ineligibility can be overcome. If the petitioner will turn 18 within a year after the initial adjudication, then no additional fee or application is required. If the petitioner will turn 18 more than a year after the initial adjudication, then a new fee and visa application would be required. See 9 FAM 504.11-4 and 9 FAM 601.14.
(d) If the petitioner or beneficiary indicates to you that they are being forced to marry against their will, you should reach out to the VO/F post liaison for guidance. The Visa Office works closely with USCIS on cases involving allegations of forced marriage and can provide case-by-case guidance to you while working to protect the confidentiality of the party that disclosed the forced marriage. In instances where you believe the underage applicant is being married against their will, you should conduct a more in-depth interview with the applicant, preferably in a privacy window. You should obtain a statement from the applicant detailing the circumstances of the marriage and their intention and willingness to enter the marriage. Regardless of the desires of the applicant, if you suspect forced marriage, you should send an AO to L/CA for confirmation of the legality of the marriage and potential return of the petition to USCIS on that basis. If a forced marriage case results in a consular return, and if the applicant or beneficiary inquires, you must only communicate that the petition has been returned to USCIS. See also 9 FAM 502.2-1(E) on IV forced marriages; 9 FAM 502.7-3(C)(5) on forced K visa relationships; and guidance on writing petition revocation memoranda with information not to be released to the petitioner at 9 FAM 504.2-8(B)(4), 9 FAM 601.13-2(E).
(CT:VISA-1774; 05-24-2023)
The term “marriage” is not defined in the INA; however, the meaning of “marriage” can be inferred from INA 101(a)(35), which defines the term “spouse.” Relationships entered for purposes of evading immigration laws of the United States are not valid for visa adjudication purposes.
(CT:VISA-2005; 06-03-2024)
a. Role of USCIS: In some situations, USCIS will have determined the validity of a marriage in the petition approval context.
(1) Under INA 204, USCIS **has the responsibility for determining whether a noncitizen is entitled to immediate relative (IR) or preference status by reason of the noncitizen's relationship to a U.S. citizen or permanent resident. If USCIS **approves a petition with the knowledge that the parties concerned are related to each other such as uncle and niece or as first cousins, you should accept such determination and not attempt to reach an independent conclusion.
(2) In cases where USCIS **has approved a petition involving a marriage between relatives, and you question its validity, but do not believe it necessary to return the petition directly to USCIS **pursuant to 22 CFR 42.43, you should refer any questions concerning the validity of the underlying marriage for an AO to L/CA.
b. Role of the Consular Office: In other cases, such as derivative nonimmigrant classifications (for example, F-2, A-2, H-4) and consular approval of a visa petition under 9 FAM 504.2-4, you are responsible for determining the validity of the marriage. If the validity of a marriage between relatives as the basis of an IV petition is an issue, the case is “not clearly approvable” and must be submitted to USCIS **for review. See 9 FAM 504.2-4.