Validity of Marriage for Immigration Purposes
The applicant must establish validity of his or her marriage. In general, the legal validity of a marriage is determined by the law of the place where the marriage was celebrated? (“place-of-celebration rule”). Under this rule, a marriage is valid for immigration purposes in cases where the marriage is valid under the law of the jurisdiction in which it is performed.
In all cases, the burden is on the applicant to establish that he or she has a valid marriage with his or her U.S. citizen spouse for the required period of time. In most cases, a marriage certificate is prima facie evidence that the marriage was properly and legally performed.
USCIS does not recognize the following relationships as marriages?, even if valid in the place of celebration.
•Certain marriages that violate the strong public policy of the state of residence of the couple;
•Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration;
•Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated; or
•Relationships entered into for purposes of evading immigration laws of the United States.
Validity of Marriage Between Two Persons of the Same Sex
In June 2013, the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), which had limited the terms “marriage” and “spouse” to opposite-sex marriages for purposes of all federal laws, was unconstitutional.In accordance with the Supreme Court decision, USCIS determines the validity of a same-sex marriage by the place-of-celebration rule, just as USCIS applies this rule to determine the validity of an opposite-sex marriage.
Therefore, in cases of marriage between persons of the same sex, officers will review the laws of the jurisdiction in which the marriage took place to determine if the jurisdiction recognizes same-sex marriages and the marriage otherwise is legally valid.
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.
If the same-sex couple now resides in a jurisdiction different from the one in which they celebrated their marriage, and that jurisdiction does not recognize same-sex marriages, the officer will look to the law of the state where the marriage was celebrated in order to determine the validity of the marriage. The domicile state’s laws and policies on same-sex marriages will not affect whether USCIS will recognize a marriage as valid.