As discussed in our August Article entitled Bringing Family Members to the U.S. our August Article, U.S. citizens and lawful permanents residents are allowed to sponsor their spouse to live in the U.S. Please note that the below can serve only as a general discussion of the issue and that actual application to individual cases requires a case by case factual analysis.
Place of Celebration Rule
One of the things your client will need in order to prove their spousal relationship is a valid, legal marriage certificate.
In general, a marriage is considered legal based on the laws of the place the marriage was performed (sometimes called the “place of celebration rule”).
In most cases, even if your client resides in a country that does not recognize their marriage, as long as the country where the marriage certificate was issued legally recognizes the marriage, it will be considered valid for purposes of U.S. permanent residency.
This means that, in general, following a 2013 U.S. Supreme Court decision, same-sex couples that are married in a jurisdiction that legally recognizes their union, hold a valid marriage certificate for the purposes of U.S. immigration.
For example, if your client is legally married in country A, where the marriage is valid but lives in country B, where their marriage is not recognized, the law of country A control.
Subsequent Marriage after Divorce
If your client has been previously married, they will also need a copy of any and all divorce decrees, death certificates, or annulment documents to show that all previous marriages by your client or your client’s spouse has been terminated.
There are a few cases where a valid marriage certificate may not be recognized by the US Citizen and Immigration Services (USCIS), including:
· Polygamous marriages (more than two people in the marriage);
· Certain marriages that strongly violate public policy of the couple’s state of residence (This does not include same-sex marriages, as discussed above, but may include incestuous marriages for example);
· Civil unions, domestic partnerships, or other relationships not recognized as marriage in the place it was performed/celebrated;
· Relationships where one party is not present during the marriage ceremony; or
· Relationships entered into for purposes of evading U.S. immigration laws.