Keeping close family members together in the U.S. is an important goal of U.S. immigration law. The pathway most commonly taken to reach this goal is through marriage immigration. More people immigrate to the U.S. each year for lawful permanent residence based on marriages to U.S. citizens and lawful permanent residents than under any other category. Unlike other contexts where marriage serves as the basis for federal benefits, the marriage involving a noncitizen for immigration purposes requires more than just meeting the legal requirements under the marriage laws. To qualify for U.S. immigration, a married couple must also demonstrate that their marriage is factually bona fide.
U.S. immigration law does not define what constitutes a legally valid marriage. Ordinarily, if a marriage follows the legal requirements of the place where the marriage was entered into, then it is considered legally valid for immigration purposes. In the U.S., each state has its own marriage law providing requirements for marriages in the state; the requirements may be different from state to state. Internationally, marriage laws, customs, and traditions that govern marriages differ from country to country. Either a domestic or international marriage, as long as it complies with the substantive and procedural requirements of the jurisdiction in which it was entered into, is recognized as a legally valid marriage for U.S. immigration. There are instances where a marriage may be lawful in the jurisdiction in which it was entered into, but it may not be legally valid in the state where the couple resides because it is against public policy of the state. Those marriages will not be recognized as valid marriages for immigration purposes. For example, polygamous marriages may be lawful in some countries, but they are not legal in any U.S. state. As a result, they are not recognized as legally valid marriages for immigration purposes. Usually, a certificate of marriage issued by the civil registry is used as sufficient evidence to prove that the couple have entered into a legally valid marriage.
Once legal validity of the marriage is established, the couple still must demonstrate that their marriage is bona fide in order to qualify for U.S. immigration. The determination of a bona fide marriage is usually factual in nature; the couple are required to show they have a genuine marriage in existence. Because marriage is considered a sphere of privacy that is strictly guarded against government intrusion and interference, federal law does not dictate what kind of life a married couple should live and does not provide what the married life should entail such as what lifestyles the couple should live, how much time they must spend together, whether they should buy a house as their marital residence, or whether they should live together with their in-laws. Any attempt by the government to regulate marital activities may encounter constitutional issues. Since 1888, the Supreme Court has reaffirmed through court cases that “freedom of personal choice in matters of marriage” is “one of the liberties protected by the Due Process Clause,” “essential to the orderly pursuit of happiness by free men,” and “sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” These cases establish that the right to marry and live a marital life is a fundamental right protected by the U.S. constitution. The justification to regulate marital life is not an easy bar to pass. Courts have rejected the attempt to allow the federal immigration agency to examine the marital activities of a couple, evaluate and pass on judgment as to the quality of their married life, and determine whether their marriage was factually viable or dead because such attempt would lead to impermissible invasions of individual privacy in violation of the constitutional guarantee.
A workable framework to determine the bona fides of a marriage must take into consideration the constitutional factor. What standard should we use to make the determination? Should we require noncitizens to have more “successful marriages” than citizens? Couples have different ways of getting married; they encounter marital differences and get into arguments; they get separated from each other shortly after marriage; and they do not always spend every day and every night together after their marriage. Marital problems develop, couples break up, and they end their marriage by divorce. These occurrences happen in marriages between couples who are both citizens, and those between citizens and foreign nationals.
Balancing the protection of an individual’s privacy right in marital affairs against the government’s interest in preventing marriage fraud in the context of immigration law, the 9th Circuit Court of Appeals has enunciated the Bark test that provides a legal framework to determine whether a marriage is a bona fide marriage for immigration petitions. According to the court, the central question to be considered is whether the parties intended to establish a life together at the time they were married. Evidence relevant to their intent includes records and documents such as insurance policies, bank statements and other records that list both of their names, and testimony or other evidence regarding their courtship, wedding ceremony and whether they shared a residence.
To establish the parties’ intent to marry, several types of objective evidence may be relevant and probative, including joint finances/liabilities, a residence, life experiences, correspondence between each other, and community recognition and acknowledgement as a married couple.
Joint finances and liabilities constitute compelling evidence of a genuine marriage. People who are faking their marriages will typically not want to share finances and liabilities solely for immigration benefits. Examples of evidence that can be provided to demonstrate joint liabilities and finances include records such as monthly bank statements showing both names of the couple, titles to motor vehicles containing both names of the couple, monthly bills with both names of the couple, and joint tax returns.
In addition to joint finances and liabilities, a married couple usually live together and share a joint residence. Evidence of cohabitation can serve as a very strong indication that the couple intended to share a life together. A showing of cohabitation may be made by presenting real estate property deeds, mortgages, loans, utility bills that contain both names of the couple and other related documents. Essentially any document related to the couple’s marital home that contains both names may be used as evidence of cohabitation.
Moreover, shared activities, moments of affection, continuous communication, and vacationing together can all be counted to establish the couple intended to share a life together. Records or documents that can be used as evidence include text messages and call history showing communication between the two happens on a consistent basis, photos of the couple together with family and friends, plane tickets and travel itineraries from vacations together, letters sent between the married couple, and even receipts of gifts bought for each other. When a married couple do all these shared activities and communicate consistently, they will typically be acknowledged by the community in which they live as a genuinely married couple. Written statements from friends, neighbors, and family supporting the marriage can serve as useful evidence of bona fide marriage.
In addition to documentary evidence, testimonial evidence plays an important role in the marriage bona fide determination. Every couple has a story about events leading to their marriage: their first meeting, activities they did together to get to know each other, and ultimately their decision to marry. The narrative provided by the couple is by far the best evidence to establish their intent to marry. The couple will be able to tell their story in an immigration interview during which the immigration officer will ask questions about the couple’s first meeting, their courtship, their engagement, their wedding, their honeymoon, and their marital life. Typically, the interview will be conducted where the couple will answer questions in the same room. The officer will ask questions, and the couple answer them. However, if the officer has or develops any suspicion about the couple’s marriage, she may ask more questions about the details of their marital relationship and may sometimes conduct a “Stokes Interview”. This is when they separate the couple, ask them questions, and then compare their answers to see how they line up and if they are consistent. The answers provide direct and circumstantial evidence showing whether the parties intended to establish a life together at the time of marriage.
In evaluating and considering the evidence relating to marriage bona fides, the decision-maker may not rely on their own values and subjective standards. In Damon v. Ashcroft, the 9th Circuit Court of Appeals criticized an immigration judge for “imposing her own values and suppositions on the interpretation of the facts.” The court explained as follows:
“The sole inquiry in determining whether a marriage was entered into in good faith is whether the parties intended to establish a life together at the time of marriage. In determining whether such intent exists, judges must look to objective evidence and refrain from imposing their own norms and subjective standards on the determination. There are many women in today’s society who do not take their husband’s last name, yet they fully intend to establish a life with their partner…. We reject the implication that only those who share a common language and background can form an intent to establish a life together. Much of American culture is itself the product of unions between people of different backgrounds and ethnicities.”
Whether or not a marriage is bona fide rests on whether the couple intended to establish a life together at the time of marriage. Objective evidence is required to establish that intent; the conduct of the married couple during their marriage is only relevant to demonstrate their intent at the time of marriage. When a marriage is deemed legally valid under the marriage law of the jurisdiction in which it was entered into and factually bona fide based on proof of the intent to establish a life together, such marriage suffices to meet the criteria for U.S. immigration.
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DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.