I am from Eastern Europe, and spent six months in the U.S. backpacking. I have since discovered that a woman (a U.S. citizen) with whom I had a brief relationship has given birth to our child. We began corresponding via email and Skype, and I would like to marry her and move to the United States to live as a family, as soon as possible. However, I have no job right now, and can’t afford for us to travel back and forth. Would it speed things up if we simply got married using an Internet service like Skype, and then applied for a U.S. green card? The other appealing thing about that is that it lets me start work in the U.S. as soon as possible.
What you are describing is, according to U.S. immigration law, a “proxy marriage.” Such marriages can be legally valid, but the U.S. government will not recognize them as a basis for granting lawful permanent residence (a green card) unless the couple consummates the marriage afterward; in other words, has sexual relations. (This comes from § 101(a)(35) of the Immigration and Nationality Act or “I.N.A.”)
While the existence of the child seems to indicate that you have had sexual relations in the past, that would not count. U.S. immigration authorities will look only to the time period AFTER the wedding in making its determination as to whether the consummation requirement has been met.
That doesn’t mean that your past relationship will be entirely irrelevant. After all, proving that a marriage has been consummated is not something that one can easily do without providing graphic or intimate material – and U.S. immigration authorities are really not comfortable reviewing that. A simple affidavit or personal statement attesting to the fact that the relationship was consummated, along with evidence that the couple was in the same place at the same time (such as copies of airplane tickets, hotel bills, and so forth) is typically sufficient.
But if you were to meet and consummate the marriage, your affidavit would certainly be more believable if you can explain that this is a continuation of a past relationship. The bottom line, after all, is to avoid a finding that you are trying to commit immigration fraud, so your credibility (believability) is key.
It sounds, however, like such travel would be impossible for you at this time. Your better option might be to apply for a K-1 fiancé visa, which would allow you to enter the U.S. for a 90-day stay, get married, and then apply for a green card. It’s true that you’d have to wait a little longer to start working – getting a work permit based on a fiancé visa can take weeks or months, so you’d need to wait until you’d gotten married and then submitted the paperwork for adjustment of status (a green card) – but if you time things right and do some advance planning, this shouldn’t take terribly long.
For more information and guidance on application procedures, see Fiancé and Marriage Visas: A Couple’s Guide to U.S. Immigration, by Ilona Bray (Nolo).