A. Validity of Marriage
1. Validity of Marriages in the United States or Abroad
The applicant must establish validity of his or her marriage. In general, a marriage certificate is prima facie evidence that the marriage was properly and legally performed. A marriage is valid for immigration purposes in cases where:
The marriage is valid under the law of the jurisdiction in which it is performed; and
The law of the jurisdiction does not conflict with federal laws on marriage or the laws of the state of the spouses’ domicile.
In general, states recognize marriages from other states and foreign countries. The principle of “comity” requires one state to recognize the legal acts of another state so long as they do not violate public policy. 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. See 8 CFR 319.1(b)(1).
USCIS does not recognize the following relationships as marriages or intended marriages:
Relationships involving bigamy, polygamy, or incest; See Matter of H-, 9 I&N Dec. 640 (BIA 1962). Battered spouses who had a bigamous marriage may still be eligible for naturalization. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (October 28, 2000).
Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated;
Relationships entered into for purposes of evading immigration laws of the United States; See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). See Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). See Matter of M-, 8 I&N Dec. 217 (BIA 1958). or
Relationships between two persons of the same sex. See the Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419 (Sept. 21, 1996). See 1 U.S.C. 7 and 28 U.S.C. 1738C.
USCIS accepts the validity of marriage in cases involving transgender persons if at the time of the marriage:
The person has legally changed his or her gender; Not all states or foreign jurisdictions that recognize a legal change of gender require the completion of gender reassignment surgery before a person can legally change his or her gender. USCIS recognizes the broader range of clinical treatments other than gender reassignment surgery that can result in a legal change of gender under the law of the relevant jurisdiction. See Adjudicator’s Field Manual (AFM) Chapter 21.3(a)(2)(J), Transgender Issues and Marriage.
The state or local jurisdiction in which the marriage took place recognizes the marriage as a heterosexual marriage; See Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). and
The law where the marriage took place does not bar a marriage between a transgender person and person of the other gender. See AFM Chapter 21.3(a)(2)(J), Transgender Issues and Marriage. See AFM Chapter 10.22, Document Issuance Involving Status and Identity for Transgender Individuals.
2. Validity of Foreign Divorces and Subsequent Remarriages
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. 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. 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. 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. Some 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.
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. 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. 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. 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. 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 Oath of Allegiance. 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 Oath of Allegiance. 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, all naturalization applicants filing on the basis of marriage to a U.S. citizen must be the spouse of a U.S. citizen from the time of filing the Application for Naturalization until the applicant takes the Oath of Allegiance. In addition, some spousal naturalization provisions require that the applicant “live in marital union” with his or her citizen spouse prior to filing the Application for Naturalization. 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.
An 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. 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. 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 Allegiance. 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. 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)).
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 an applicant is ineligible to naturalize as the spouse of a U.S. citizen if the divorce or annulment occurs before or after the naturalization application is filed. See 8 CFR 319.1(b)(2)(i) and 8 CFR 319.2(c).
The result of annulment is to declare a marriage null 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 requires 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. See Matter of Hussein, 15 I&N Dec. 736 (BIA 1976). USCIS also determines whether the parties followed the proper legal formalities required by the state or country in which the divorce was obtained to determine if the divorce is legally binding. 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 Allegiance for naturalization. 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
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. 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 will 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, an 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. 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.
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, an 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. 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 suggests 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. See U.S. v. Moses, 94 F. 3d 182 (5th Cir. 1996).
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: See 8 CFR 319.1(b)(2)(ii)(C).
Service in the U.S. armed forces; or
Required travel or relocation for employment.
USCIS does not consider incarceration during the time of required living in marital union to be an involuntary separation.