Is Your Marriage Valid for Immigration Benefits?

Jun 29, 2015 | Marriage

Adjustment of one’s immigration status via marriage to a United States citizen is an immigration benefit. As a Miami immigration lawyer, I have the pleasure of helping couples solidify their lives within the U.S. However, keep in mind that some types of marriages, while valid and recognized in the place where the marriage was performed, may not be eligible for immigration benefits under the eyes of the U.S. immigration authorities. What types of marriages are eligible under the eyes of the immigration authorities, and types are not? I will discuss them below.

  • Same Sex Marriage – Same sex marriage is marriage between two people of the same sex. After the United States Supreme Court’s decision in United States v. Windsor, DOMA (the Defense of Marriage Act”) was invalidated, paving the way for same sex married couples to receive immigration benefits. If your wedding took place in a place where same sex marriage is valid (in a same sex marriage state or country)  that marriage makes you eligible to apply for a green card based on your marriage to a same sex spouse. If you have any questions as to whether you same sex marriage is valid under the eyes of immigration authorities, speak with a Miami immigration lawyer.
  • Common Law Marriage – A common law marriage is one in which the couple lives together for a period of time and represents themselves to friends, family and the community as “being married.” However, the couple never goes through a formal ceremony or gets a marriage license. Unless the common law marriage is recognized as legal in the jurisdiction of residence or last residence, it is not legal in the eyes of the immigration authorities.
  •  Customary Marriage – A customary marriage is a marriage that is performed according to local custom, but is not performed under the eyes of the civil authorities. On the other hand, if a customary marriage is recognized by the civil authorities in the place where the marriage was performed, the immigration authorities may consider the customary marriage a valid one. If you have any questions as to which category your marriage falls into, do not guess. It is best to speak with your Miami immigration attorney.
  • Proxy Marriage – A proxy marriage is one wherein one or both of the individuals being united are not physically present, usually being represented instead by other persons. If both partners are absent, a double proxy wedding occurs. In general, USCIS will not consider a marriage valid unless both people were physically present at the marriage ceremony, or if the marriage was subsequently consummated.
  • Mail order marriages – A mail order marriage is one wherein the immigrating spouse lists himself/herself in catalogs (online or otherwise), and is selected by his/her mate for marriage. It is important to note that mail order marriages are still allowed if the couple met personally at least once within 2 years of applying for a fiancé visa (K-1) petition. However, the immigrating spouse must prove that the couple spent time together and that both parties communicated with each other regularly before filing the petition. Again, if you are not sure as to whether your marriage qualifies, speak with a Miami immigration attorney.
  • Incestuous Marriage – Incestuous marriage is a marriage between close family members. The validity of incestuous marriage depends on the law of the state where the parties intend to reside. In the state where the incestuous marriage is regarded as a crime, the incestuous marriage is not accepted for immigration purposes, even if this marriage was legally contracted somewhere else.
  • Polygamous Marriage – A polygamous  marriage is when  an individual has more than one spouse at a time. A polygamous marriage is never recognized as a valid marriage. However, that family members of the first marriage of a polygamous family may enjoy their immigration benefits if the benefits have already been conferred.

If you would like more information on whether you marriage is valid for the purposes of receiving immigration benefits, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.