Chapter 2: Marriage and Marital Union for Naturalization

A. Validity of Marriage​

1. Validity of Marriages in the United States​ or Abroad​

Validity of Marriage ​for Immigration Purposes​

The applicant must establish validity of his or her marriage. ​In general,​ the legal validity of a marriage is determined by the law of the place where the marriage was celebrated​ (“place-of-celebration rule”)​. ​Under this rule, a​ marriage is valid for immigration purposes in cases where​ t​he marriage is valid under the law of the jurisdiction in which it is performed​.​ [1] See, for example, Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005); Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976); Matter of H-, 9 I&N Dec 640 (BIA 1962).

In all cases, the burden is on the applicant to establish that he or she has a valid marriage with his or her U.S. citizen spouse for the required period of time.​ [2] See 8 CFR 319.1(b)(1). In most cases, a marriage certificate is prima facie evidence that the marriage was properly and legally performed.​

USCIS does not recognize the following relationships as marriages​, even if valid in the place of celebration​:​

Polygamous marriages​;​ [3] See Matter of H-, 9 I&N Dec. 640 (BIA 1962). Polygamous marriages are not recognized as a matter of federal public policy. However, note that battered spouses who had a bigamous marriage may still be eligible for naturalization. See INA 204(a)(1)(A)(iii)(II) and INA 319(a).

Certain marriages that violate the strong public policy of the state of residence of the couple;​ [4] This is a narrow exception that under BIA case law generally has been limited to situations, such as certain incestuous marriages, where the marriage violates the criminal law of the state of residence. See Matter of Da Silva, 15 I&N Dec 778 (BIA 1976); Matter of Zappia, 12 I&N Dec. 439 (BIA 1967); Matter of Hirabayashi, 10 I&N Dec 722 (BIA 1964); Matter of M, 3 I&N Dec. 465 (BIA 1948). Note that as discussed below, if the state of residence has a public policy refusing to recognize same-sex marriage, this will not result in a same-sex marriage being considered invalid for immigration purposes if it is valid in the place of celebration.

Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration;​ [5] If the relationship is treated as a marriage, however, such as a “common law marriage,” it will be recognized.

Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated;​ [6] See INA 101(a)(35). or​

Relationships entered into for purposes of evading immigration laws of the United States​.​ [7] See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of Phillis, 15 I&N Dec. 385 (BIA 1975; Matter of M-, 8 I&N Dec. 217 (BIA 1958).

Validity of Marriage ​Between​Two Persons of the Same Sex​

In ​June 2013, ​the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA), which had limited the terms “marriage” and “spouse” to opposite-sex marriages for purposes of all federal laws, was un​constitutional.​ [8] See United States v. Windsor, 133 S. Ct. 2675 (2013). See 1 U.S.C. 7 (section 3 of DOMA). See the Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419 (Sept. 21, 1996). In accordance with the Supreme Court decision, ​USCIS determine​s​ the validity of a same-sex marriage​ by the place-of-celebration rule, just as USCIS applies this rule​to ​determine the validity of an opposite-sex marriage​.​ [9] Prior to the Supreme Court decision, United States v. Windsor, USCIS did not recognize relationships between two persons of the same sex as marriages or intended marriages in accordance with section 3 of DOMA.

Therefore, i​n ​cases of marriage between persons of the same sex,​ officer​s​ will review the​ laws of the​ jurisdiction in which the marriage took place​to determine if the ​jurisdiction recognizes same-sex ​marriage​s and the marriage otherwise​ is legally valid.​

Since the place-of-celebration rule governs same-sex marriages in exactly the same way that it governs opposite-sex marriages, unless the marriage is polygamous or otherwise falls within an exception to the ​place-​of​-​celebration rule as discussed above, the legal validity of a same-sex marriage is determined exclusively by the law of the jurisdiction where the marriage was celebrated.​

If the same-sex couple now resides in a jurisdiction different from the one in which they celebrated their marriage, and that jurisdiction does not recognize same-sex marriages, the officer will look to the law of the state where the marriage was celebrated in order to determine the validity of the marriage. The domicile state’s laws and policies on same-sex marriages will not affect whether USCIS will recognize a marriage as valid.​

Validity of Marriage in Cases Involving Transgender Persons​

USCIS accepts the validity of ​a ​marriage​ in cases involving transgender persons if ​t​he state or local jurisdiction in which the marriage took place recognizes the marriage ​as​ a ​valid ​marriage​, subject to the exceptions described above (such as polygamy).​ [10] Officers should consult OCC in cases where the marriage was originally an opposite-sex marriage celebrated in a state that does not recognize same-sex marriage, and one of the spouses changed gender after the marriage. 

2. Validity of Foreign Divorces and Subsequent Remarriage​s​

The validity of a divorce abroad​ depends on ​the ​interpretation of the divorce laws of the foreign country that granted the divorce and the reciprocity laws in the state of the United States where the applicant remarried.​ [11] See Matter of Luna, 18 I&N Dec. 385 (BIA 1983). See Matter of Ma, 15 I&N Dec. 70 (BIA 1974). If the divorce is not final under the foreign law, remarriage to a ​U.S.​ citizen is not valid for immigration purposes.​ [12] See Matter of Ma, 15 I&N Dec. 70, 71 (BIA 1974). See Matter of Miraldo, 14 I&N Dec. 704 (BIA 1974).

An officer should ensure that the court issuing the divorce had jurisdiction to do so.​ [13] For example, law requires both parties to be domiciled in the country at the time of divorce, but that was not the case. See Matter of Hosseinian, 19 I& N Dec. 453 (BIA 1987). See Matter of Weaver, 16 I&N Dec. 730 (BIA 1979). See Matter of Luna, 18 I&N Dec. 385 (BIA 1983). Foreign divorce laws may allow for a final decree even when the applicants are not​ residing​ in the country. ​S​ome states​, however,​ do not recognize these foreign divorces and do not provide reciprocity. The applicant and his or her former spouse’s place of domicile at the time of the divorce is important in determining whether the court had jurisdiction.​

3. Evidence​

The burden is on the applicant to establish that he or she is in a valid marriage with his or her ​U.S.​ citizen spouse for the required period of time.​ [14] See 8 CFR 319.1(b)(1).A spouse of a ​U.S.​ citizen must submit with ​the naturalization application an official civil record to establish that the marriage is legal and valid. If an official civil record cannot be produced, secondary evidence may be accepted on a case-by-case basis. An officer has the right to request an original record if there is doubt as to the authenticity of the record.​ [15] See 8 CFR 103.2(b). See 8 CFR 319.1 and 8 CFR 319.2.

B. Common Law Marriage​

The concept of common law marriage presupposes an honest good-faith intention on the part of two persons​,​ free to marry​, ​to live together as husband and wife from the inception of the relationship. Some states recognize common law marriages and consider the parties to be married.​ [16] For purposes of determining whether a common law marriage exists, see statutes and case law for the appropriate jurisdiction. In order for a common law marriage to be valid ​for immigration purposes​:​

The parties must live in that jurisdiction; and​

The parties must meet the ​qualifications for ​common law marriage for that jurisdiction.​

Other states may recognize a common law marriage contracted in another state even if the recognizing state does not accept common law marriage as a means for its own residents to contract marriage.​

USCIS ​recognizes common law marriages ​for ​purposes of ​naturalization if the marriage was valid ​and recognized by the state​ in which ​the marriage​ was established​.​ [17] The date a common law marriage commences is determined by laws of the relevant jurisdiction. This applies ​even if the ​naturalization ​application is filed in a jurisdiction that does not recognize or has never recognized the principle of common law marriage.​

The officer should review the laws of the relevant jurisdiction on common law marriages to determine whether the applicant and spouse should be considered to be married​ for purposes of naturalization​ and when the marriage commenced.​

C. U.S. Citizenship from Time of Filing until Oath​

In order to take advantage of the special naturalization provisions for spouses of U.S. citizens, the applicant’s spouse must be and remain a U.S. citizen from the time of filing until the time​the applicant takes the ​O​ath of ​A​llegiance. An applicant ​is ​ineligible for naturalization under these provisions if his or her spouse ​is not a U.S. citizen or ​loses U.S. citizenship status​by denaturalization or expatriation ​prior to the applicant taking the ​O​ath of ​A​llegiance.​ [18] See 8 CFR 319.1(b)(2)(i) and 8 CFR 319.2(c).

D. Marital Union ​and Living in Marital Union​

1. Married and Living in Marital Union​

In general, a​ll naturalization applicants filing on the basis of marriage to a U.S. citizen must ​be the spouse of a U​.S. c​itizen from the time of filing the ​A​pplication for ​N​aturalization until the applicant takes the ​O​ath of ​A​llegiance.​In addition, some spousal naturalization provisions require that the applicant “​live in marital union” with ​his or her ​citizen spouse ​prior to ​filing​ the ​A​pplication for ​N​aturalization​.​ [19] See INA 319(a). See 8 CFR 319.1(a)(3) and 8 CFR 319.1(b).USCIS considers an applicant to ​“​live in marital union​”​ with his or her citizen spouse if the applicant and the citizen ​actually ​reside together​.​

A​n ​applicant under the special provisions for spouses ​is​ ineligible ​for naturalization ​if​:​

The ​applicant is not residing with his or her ​United States citizen ​spouse​ at the time of filing or during the time in which the applicant ​is required to be living ​in marital union with the citizen spouse; or​

If at any time prior to taking the Oath of Allegiance, the ​spousal relationship is terminated or altered to such an extent that neither the applicant nor ​the United States ​citizen spouse can be considered to be residing together as husband and wife.​

There are ​limited​ circumstances where an applicant may be able to establish that he or she is living in marital union with his or her citizen spouse even though the applicant does not actually reside with the citizen spouse​.​ [20] See guidance below on “Involuntary Separation” under the paragraph “Failure to be Living in Loss of Marital Union due to Separation.”

In all cases where it is applicable, the burden is on the applicant to establish that he or she has lived in marital union with his or her ​U.S.​ citizen spouse for the required period of time.​ [21] See 8 CFR 319.1(b)(1).

2. Loss of Marital Union​due to​ Death​, ​Divorce​, or Expatriation​

Death of U.S. Citizen Spouse​

An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen dies ​any time prior to ​the applicant ​taking the Oath of ​A​llegiance​.​ [22] See 8 CFR 319.1(b)(2)(i). See 8 CFR 319.2(c).However, if the applicant is the surviving spouse of a U.S. citizen who died during a period of honorable service in an active-​duty status in the U.S. armed forces, the applicant may be eligible for naturalization based on his or her marriage under a special provision.​ [23] See INA 319(d). See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section D, Naturalization for Surviving Spouse, Child, or Parent of Service Member (INA 319(d)) [12 USCIS-PM I.9(D)].

Divorce or Annulment​

A person’s marital status may be terminated by a judicial divorce or by an annulment.​A divorce or annulment breaks the marital relationship. ​The applicant is no longer the spouse of a U.S. citizen if the marriage is terminated by ​a divorce or annulment​. ​Accordingly, such​ a​n applicant ​is in​eligible​ to naturalize​ as the spouse of a U.S. citizen if ​the ​divorce or annulment​ occur​s​ before or after the ​naturalization application is filed​.​ [24] See 8 CFR 319.1(b)(2)(i) and 8 CFR 319.2(c).

The result of annulment is to declare a marriage nul​l and void from its inception. ​An annulment is usually retroactive, meaning that ​the marriage ​is considered to ​be invalid from the beginning. ​A court's jurisdiction to grant ​an annulment​ is set forth in the various divorce statutes and​generally ​r​equires residence or domicile of the​ parties in that jurisdiction.​ When a marriage has been annulled, it is documented by a court order or decree.​

In contrast, the effect of a judicial divorce is to terminate the status as of the date on which the court entered the final decree of divorce. ​When a marriage is terminated by divorce, the termination is entered by the court ​with jurisdiction ​and is documented by a copy of the final divorce decree.​ USCIS determines ​the validity of a divorce by examining whether the ​state or country which granted the divorce ​properly assumed jurisdiction over the divorce proceeding.​ [25] See Matter of Hussein, 15 I&N Dec. 736 (BIA 1976). USCIS ​also determines whether ​the parties follow​ed​ the proper legal formalities required by the state or country in which the divorce was obtained to determine if the divorce is legally binding.​ [26] See Matter of Luna, 18 I&N Dec. 385 (BIA 1983).In all cases, the divorce must be final.​

An applicant’s ineligibility ​for naturalization as the spouse of a U.S. citizen ​due to ​the ​death of​ the citizen spouse​ or ​to ​divorce is not cured ​by the​ subsequent marriage to another U.S. citizen. ​

Expatriation of U.S. Citizen Spouse​

An applicant is ineligible to naturalize as the spouse of a U.S. citizen if the U.S. citizen has expatriated any time prior to the applicant taking the Oath of ​A​llegiance​ for naturalization​.​ [27] See 8 CFR 319.1(b)(2)(i). See 8 CFR 319.2(c). See INA 337.

3. Failure to be Living in ​Marital Union due to ​Separation​

Legal Separation​

A legal separation ​is a formal process by which the rights of a married couple are altered by a judicial decree ​but ​without eliminating the marital relationship.​ [28] See for example, Nehme v. INS, 252 F.3d 415, 422-27 (5th Cir. 2001) (Discussing legal separation for purposes of derivation of citizenship).In most cases, after a legal separation, the applicant will no longer be actually residing with his or her U.S. citizen spouse, and therefore w​ill not ​be ​living in marital union ​with the U.S. citizen spouse.​

However, if the applicant and the ​U.S. citizen ​spouse ​continue to reside in the same household, the marital relationship has been altered to such an extent ​by the legal separation ​that they will not be considered to be living together in marital union.​

Accordingly, ​a​n applicant ​is ​not living in marital union with a ​U.S. citizen ​spouse during any period of time in which the spouses are legally separated.​ [29] See 8 CFR 319.1(b)(2)(ii)(A). An​ applicant who is legally separated from his or her spouse during the time period in which he or she must be living in marital union is ineligible to naturalize as the spouse of a U.S. citizen.​

Informal​ S​eparation ​

In many instances, spouses will separate without obtaining a judicial order altering the marital relationship or formalizing the separation. ​An ​applicant ​who ​is no longer actually residing with his or her U.S. citizen spouse​following an informal separation ​is not living in marital union with the U.S. citizen spouse.​

However, if the ​U.S. citizen spouse and the applicant continue to reside in the same household, a​n officer ​must ​determine on ​a ​case-by-case ​basis​ whether ​an informal separation before the filing of the naturalization application renders an applicant ineligible for naturalization as the spouse of a U.S. citizen​.​ [30] See 8 CFR 319.1(b)(2)(ii)(B).Under these circumstances, an applicant is not living in marital union with a U.S. citizen spouse during any period of time in which the spouses are informally separated if such separation ​suggest​s​ the possibility of marital disunity.​

Factors to consider​ in making this determination​ may include​:​

The length of separation;​

Whether the applicant and his or her spouse continue to support each other and their children (if any) during the separation;​

Whether the spouses intend to separate permanently; and​

Whether either spouse becomes involved in a relationship with others during the separation.​ [31] See U.S. v. Moses, 94 F. 3d 182 (5th Cir. 1996).

Involun​tary S​eparation​

Under very limited circumstances​ and where there is no indication of marital disunity​, an applicant may be able to establish that he or she is living in marital union with his or her ​U.S. citizen ​spouse even though the applicant does not actually reside with citizen spouse. ​An applicant ​is not​made ineligible for naturalization for not living in marital union if ​the separation is due to ​circumstances beyond his or her control, such as​:​ [32] See 8 CFR 319.1(b)(2)(ii)(C).

S​ervice in the ​U.S. a​rmed ​f​orces​;​ or​

Required travel or relocation for​employment​.​

USCIS does not consider incarceration ​during the time of required living in marital union​ to be a​n involuntary ​separation​.​