Section 7 Validity of Marriage

• Library: Immigration Law Impacts in Family Law 2011

Regardless of whether the petition by the USC is filed within the United States or from outside the United States, the USC will be required to establish that his or her marriage to the non-USC is valid. Generally, this means that the marriage must have been valid at the time and place it occurred, the “home jurisdiction.” But even if valid in the home jurisdiction, the marriage still may be deemed invalid by USCIS if it is contrary to public policy. In re H., 9 I&N Dec. 640 (B.I.A. 1962).

As of the date of this publication, same-sex marriage is deemed by USCIS to be against public policy. There are ongoing efforts to change the position of USCIS on this issue. Although some states and foreign countries recognize same-sex marriage, USCIS and the courts interpreting the INA do not for the purpose of adjustment of status based on a marriage. USCIS Memorandum, William R. Yates, Spousal Immigrant Visa Petitions (AFM Update AD 02-16), AILA Info Net Doc. No. 03072915 (Mar. 20, 2003) (on file with author); Adams v. Howerton, 673 F.2d 1036 (9^th Cir. 1982). Therefore, even if a USC and a foreign national marry in a jurisdiction that recognizes same-sex marriage, the marriage does not enable the USC to petition USCIS to have his or her same-sex spouse immigrate as a relative. USCIS and the courts often have relied on the DOMA (Defense of Marriage Act), Pub. L. No. 104-199, 110 Stat...