When Proxy or Skype Marriages Are Valid for Green Card Purposes

Marrying long distance? Make sure U.S. Citizenship and Immigration Services will recognize the union for green card purposes.

By , J.D., University of Washington School of Law

Not every couple holds a traditional wedding ceremony, particularly if the marriage is an arranged one, or the two members of the couple live in different places. It is possible to hold a marriage that meets local definitions of "legal" by proxy (in which someone with power of attorney stands in for the bride or groom), using some form of electronic or video conferencing. In order for a U.S. citizen to petition for (sponsor) a new spouse to get a U.S. green card and move to the United States, however, you'll need to make sure U.S. Citizenship and Immigration Services (USCIS) will recognize the union for green card purposes. This article will discuss how to do that.

Legal Standards for Recognition of Proxy Marriages in Immigration Context

According to U.S. immigration law, a marriage where both persons are not physically present, often called a "proxy marriage," can be legally valid. However, the U.S. government will not recognize it as a basis for granting lawful permanent residence (a green card) unless the couple consummates the union after the marriage takes place; in other words, the couple has sexual relations. (This comes from § 101(a)(35) of the Immigration and Nationality Act or "I.N.A.")

"Pre-consummation," or engaging in sexual relations before the wedding, doesn't count in this context. Also, the U.S. adheres to the consummation requirement even if the marriage was valid under the laws of the place where it was held.

Proving to the U.S. Government That a Marriage Has Been Consummated

Demonstrating for certain that a marriage has been consummated is not something one could easily do without providing graphic or intimate material—and U.S. immigration authorities are not interested in or comfortable reviewing that.

Therefore, a simple affidavit or personal statement attesting to the fact that the relationship was consummated is an excellent start. Combine that with documentary evidence that both members of the couple were in the same place at the same time, such as copies of airplane tickets, hotel bills, photos taken together, and so forth.

Your affidavit will be more believable if you can explain that this is a continuation of a past relationship. As an added benefit, personal meetings before the marriage help show that the marriage is real (bona fide) and not a sham to get a green card. To avoid a finding that you are trying to commit immigration marriage fraud, your credibility (believability) is key. Thus details and documentary evidence are all important.

If you've had a child together, that's a good indication that you have had sexual relations in the past. Nevertheless, because 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, children conceived before the marriage basically don't count for this purpose.

If you've tried to have children but have been unable to, medical records of visits to a doctor or fertility specialist, or a letter from the doctor or specialist, would be helpful to submit.

K-1 Fiancé Visa Option

If travel would be difficult for one of you at this time, your better option might be to apply for a K-1 fiancé visa. This would allow the non-citizen to enter the U.S. for a 90-day stay, during which time you would get married, after which you could apply for a green card.

One disadvantage to this strategy is that the immigrant would have to wait a little longer after entering the U.S. to start working—getting a work permit based on a K-1 fiancé visa can take weeks or months. After the marriage takes place, you'll need to submit the paperwork for adjustment of status (a green card), which will include another application for a work permit. But if you time things right and do some advance planning, this shouldn't take terribly long.

For More Information and Help

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). Also, given that you'd be making an unusual request, you should strongly consider hiring an experienced immigration attorney to handle your marriage-based immigrant visa case. The attorney can analyze the facts of your situation and spot any potential problems, and also prepare the paperwork and monitor your progress toward approval.

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