IS A MARRIAGE VALID FOR IMMIGRATION PURPOSES EVEN IF NOT CONSUMMATED?

By: Shah Peerally Esq.

Consummation of a marriage is basically defined as having a sexual relationship or sexual intercourse during the marital relationship and for immigration purposes it is an important factor in determining the bona fide of a relationship. However, under the Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), a marriage validity is not determined by consummation. In this case, the court agreed on the validity of the marriage of an elderly couple who lived together but did not have sexual intercourse.

Problems Dealing with the authorities

Although in Peterson, it was determined that ‘non-intercourse’ should not result in the denial of a marriage petition, many times the USCIS or the State Department will take the position that non-intercourse is equivalent to a marriage not being bona fide. Bona fide in simple terms means in good faith and for immigration purposes means was not entered to circumvent immigration laws. Not consuming a marriage can actually be considered as a factor in determining that the couple entered into a marriage solely to evade immigration laws.
However, if the marriage is proxy marriage, the law is quite clear that there is no validity of such marriage without consummation.

What is a proxy Marriage?

A proxy marriage is one where the couple did not meet but sealed their vows through the telephone, internet or other similar medium without being present in the same location at the same time.

Terms like ‘Global village’ and the likes are passé, with marriages on the internet with increasing marriages on video chat program Skype. This poses plenty of new angles for the immigrant population and many issues that are raised by the immigrant authorities in granting of visas and also in securing citizenship rights. The practice is of course relatively new and has immigration authorities in a fix since it seems it’s something that they did not realize was happening.

The fact about Skype or telephone marriages is that often it takes place in countries where it might be legally registered, while the other party takes part in it through a video in the United States. The US recognizes such a marriage if it considered legal in the foreign country.

Problems with Proxy Marriages

The problem arises when one considers the rule under §101(a)(35) of the Immigration and Nationality Act (“INA”), which states that ‘if the parties were not in each other’s presence at a marriage ceremony, there must be proof of consummation for such a marriage to be recognized under immigration law.’
This is applicable even for those, who were previously married and have consummated their marriage and have children, and might have divorced and have remarried again through a proxy marriage valid in some other country other than the US. But if there is no proof of the marriage being consummated a visa petition filed on behalf of the spouse can be denied.

This only goes to prove, that internet marriages even though they may be on the rise, will not be recognized by immigration law, unless both the parties can establish consummation of marriage. Moreover, Immigration laws specify that every marriage, whether proxy or not, must be bona fide and the partners must not have entered into such an agreement only to obtain a green card and citizenship. The laws regarding this can be very stringent and in many cases before a lifetime bar has been imposed on beneficiaries who have been previously involved in marriage fraud.

Having said that, the immigration authorities do not require definitive proof of consummation, or even proof of the partners being together physically after their proxy marriage, a statement affirming their consummation, ought to suffice. Non-proxy marriages do not require consummation to satisfy the bona fide marriage test. This is though a classic case of an example where the law has failed to catch up with different ways of living that is being frequently practiced worldwide.
The increase of internet-based technologies, have changed the way people live and the rules have to change with this or it would increasingly leave out work a large section of those who have different lifestyles other than what is probably expected of them and in the truest sense of the term, rules made to serve people wouldn’t be doing that!

In spite of the fact that a Skype/telephonic marriage could be almost like any other marriage to the extent that the couple can get intimate with each other on video, one has serious doubts about the laws being changed in the near future to accommodate such marriages and more so especially when it is a matter of processing immigration requests. The concern for fraud allied with the probability of such marriages being based on the use of force on women and children without their consent are issues that still make them tricky enough to be as easily acceptable. The problem arises from the fact that this privilege ( if the Government were to consider it) could also give rise to a whole set of complications, including being used for sex trafficking, whereby women are forcibly inducted into the sex racket without their consent and once they find themselves in the US.

So long as the Immigration rules don’t change and the Government doesn’t really recognize internet marriages or at least certain aspects of it, those who have been wishing to seek an immigration benefit through such a marriage must be able to prove that the marriage has been consummated after such a marriage. Under the circumstances, unless the couple live together at some point in time, the immigration authorities would continue to look at such marriages with suspicion and hesitate to call such a marriage as bona fide.

A hypothetical to illustrate the problem on marriage and consummation of the marriage for immigration benefits.

In some countries a religious ceremony can take place but unless there is an additional ceremony, usually in some Muslims countries (Nikah and Rugsati), the couple will not consummate the marriage. If the marriage took place without using the ‘proxy method’, an argument is made that the marriage is valid and there is no intent to defraud based on the case of Peterson. However, in practical terms it becomes very difficult for the authorities not to be suspicious of the marriage. Since other factors and discretion is applied to prove the bona fide of the marriage, non consummation of a marriage can actually result in a denial. The USCIS or State Department might see a red flag which in turn will either result in a delay for investigation or ultimately a denial.
Recommendation: It is better to have the marriage consummated before the immigration papers are filed or do not start the marriage process and limit it to a fiancee visa (K1 visa). Note that you cannot opt for a fiancee visa if you have already have a marriage. In case the marriage was done by proxy then it is obvious that consummation is a necessity.

Conclusion

Although the law does not actually require consummation of a marriage in a regular marriage to prove validity, the non-consummation of a marriage can be a factor in determining the non-bona fide of a marriage.

As for proxy marriage, while technology has evolved, immigration laws have not actually caught up with reality. Therefore we advise caution in such marriages and make sure you pick the appropriate visa while trying to come to the United States.
Immigration laws and the immigration system are now very complicated. Although there are no requirements to hire a lawyer to help, the experience and knowledge of a lawyer can actually save you from a denial. Our law firm has handled hundreds of marriage cases and we will be glad to assist you. If you have more questions about marriage petitions, please call us at 510 742 5887 or email [email protected]