When Proxy, Zoom, or Videoconference Marriages Are Valid for Green Card Purposes

Not every couple holds a traditional wedding ceremony, particularly if the marriage is an arranged one, the two members of the couple live in different places, or the foreign national lives in a place that's affected by a Trump travel ban. 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 such as Zoom, WhatsApp, a Google meeting, and so on.

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 will 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, you must meet two requirements.

First, it must be legally valid in the jurisdiction where it took place (in most cases, where the officiant was located), and lead to the issuance of whatever government certificate is appropriate and valid there. You will need to check the applicable laws in whatever state or country this is arranged through.

Second, 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 will need to have had 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 an excellent 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 have tried to have children but been unable to do so, medical records of visits to a doctor or fertility specialist, or a letter from the doctor or specialist, would be helpful to submit.

Proving That It's a Bona Fide Marriage

For every couple seeking to have a foreign national obtain a U.S. green card, one of the challenges is proving that the marriage is real and "bona fide," meaning that the couple intends to form a life together; as opposed to it being a fraud to get the non-citizen a green card. This is something that will require documentation from the outset, with the filing of the initial I-130 petition. USCIS scrutinizes all spousal cases closely, and someone married by proxy or videoconference can expect extra levels of suspicion. See these articles on Proving the Bona Fides of Your Marriage for Immigration Purposes.

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. Even if you have already gone through with the proxy marriage ceremony, this option could work for you, since the U.S. government says, "A proxy marriage that has not been subsequently consummated does not create or confer the status of "spouse." (See the Department of State's Foreign Affairs Manual at 9 FAM 102.8-1(D) Proxy Marriages.)

One disadvantage to the K-1 visa strategy is that you will need to have met in person during the two years before filing the initial petition (USCIS Form I-129F) unless you can get a waiver based on hardship to the U.S. citizen.

Another disadvantage is that the immigrant would have to wait a little longer after entering the United States to start working—getting a work permit based on a K-1 fiancé visa can take longer than the 90 days during which one would be eligible for it.

After the marriage takes place, you will need to submit the paperwork for adjustment of status (a green card), which can include another application for a work permit. (See Applying to Adjust Status After Entry on K-1 Visa: Forms and Procedures.)

But if you time things right and do some advance planning, the K-1 visa process and then adjustment of status shouldn't take terribly long.

For More Information and Help

For more information and guidance on marriage-based visa 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.