This document discusses the framework used to determine if a marriage is valid for U.S. immigration purposes. There are three components to the framework: 1) the marriage must be valid under the laws of where it was celebrated; 2) it cannot violate the public policy of the state of residence or intended residence; and 3) the marriage must be bona fide for immigration purposes rather than fraudulent. The framework is applied to analyze if a marriage meets the validity requirements regardless of whether the U.S. or state laws formally define marriage.

1. Is my marriage a "valid marriage" for U.S. immigration purposes? By: Michael
Phulwani, Esq., David Nachman, Esq. and Rabindra Singh from the
Nachman Phulwani Zimovcak (NPZ), P.C. Law Group (NY, NJ, Canada,
India)
The validity of a marriage under the U.S. immigration laws frequently determines whether a foreign
national may be able to obtain a family-based immigrant or nonimmigrant visa, legalize unlawful
status, or file waiver of inadmissibility or deportability. The Immigration and Nationality Act (INA),
the basic body of U.S. immigration laws, does not define the term "marriage". Although INA defines
the term "spouse", it limits the definition to what may be excluded as unconsummated proxy marriage.
Through the definition of the term "spouse" it can be inferred that a marriage, in order to be valid for
immigration purposes, must be celebrated in the presence of both parties unless consummated.
Although the INA does not specifically define the terms "marriage" and "spouse," it does now lays
down the threshold requirement for the validity of marriage -- marriage be valid where celebrated.
Although the INA does not either define "marriage" or lay down a framework for analyzing marriages
valid for U.S. immigration purpose, the same can be gleaned through the interpretation of the case law.
This framework has been consistently applied by the U.S. Attorneys General, the Board of
Immigration Appeals (BIA), immigration officials, and most federal courts to determine the validity of
marriage under the INA. The same framework has been laid down in the Department of State's Foreign
Affairs Manual. The framework for analyzing the validity of any marriage for U.S. immigration
purposes consists of the following three components: (1) Laws of the place where the marriage took
place or was celebrated; (2) Laws of the State of residence or proposed State of residence in the United
States; and (3) bona fides of the marriage for immigration purposes. The marriage to be valid under the
U.S. immigration laws needs to satisfy all three components.
To satisfy the first component, the underlying principle is that the law of the place of marriage
celebration controls. If the law of the place of marriage is complied with and the marriage is
recognized, then the marriage is deemed to be valid for immigration purposes. Immigration officials
and federal courts insist that a marriage meets the procedural and substantive requirements of the state
or country where the marriage was "celebrated," whether those requirements involve state licensing,
religious recognition or even no "celebration" at all in the case of "common law" marriage (marriages
based on cohabitation without an official ceremony or registration). Thus, a religious marriage, uncleniece marriage or first-cousin marriage is considered valid for immigration purpose if it is recognized
by the sovereign authority in the country or state as valid provided that it satisfies the requirement of
the other two components of the framework.

2. Once a marriage passes the threshold inquiry regarding its validity where celebrated, the BIA and
Federal Courts generally proceed with the presumption that the marriage is valid everywhere unless it
violates the public policy of the couple's state of domicile or intended state of domicile, "distinctly
expressed" in state legislation. To be valid for U.S. immigration purposes, the marriage should not
violate the strong public policy expressed in the criminal law of its state of domicile. To comply with
the second component of the framework, it is pertinent to check whether the state's criminal law
expressly forbids the couple from both marrying and living together or just the later. For instance, if
the law of state of proposed residence only forbids certain type of the marriage such as uncle-niece
marriage or first-cousin marriage but does not expressly prohibits the couple living together, the
marriage will be held valid for the immigration purpose provided the marriage meets the procedural
and substantive requirements of the state or country it was celebrated. It is also important to determine
whether the couple domicile state or intended state of domicile expressly prohibits evading the state's
law by leaving the state for the purpose of being married, and with the intention of returning after the
celebration of marriage. If that is the case, the couple can be held criminally liable for evading the state
law.
Finally, even if a marriage is legally valid where celebrated and there is no strong public policy
exception to recognition of that category of relationship, U.S. immigration officials look at the
particular facts of a couple's life together in order to determine whether their individual marriage is
bone fide for immigration purposes. This is a practical concession to the fact that U.S. immigration
benefits are so desirable that some people are willing to enter into "fraudulent" marriages merely for
the purpose of obtaining those immigration benefits. While legally valid for other purposes, these
marriages are not valid under the INA.
Although the United States and all of its constituent states unanimously recognize the general rule that
a marriage, valid where celebrated, is valid everywhere, the rest of two variables of the above-detailed
framework should also be satisfied. Thus, in evaluating the validity of marriage for immigration
purposes, although the prime focus is on the law of the state or country where the marriage was
allegedly contracted, the couple's relationship should not violate the strong public policy expressed in
the criminal law of its state of domicile or intended state of domicile, and the marriage should meet the
bona fide requirements.