VISAS FOR COMMON LAW SPOUSES

Eligibility for Immigration Benefits From Marriage and as Common Law Spouses

Several immigration benefits are available to people based on their status as a “spouse” of a U.S. citizen, permanent resident, or nonimmigrant admitted to the U.S. Those benefits include, but are not limited to the following:

1. Ability to apply for permanent residence based on the U.S. citizen or permanent resident status of the spouse (and eventually apply for citizenship on that basis as well)

2. Ability to enter the Untied States in a dependent nonimmigrant status for the duration of the spouse’s nonimmigrant status

3. Ability to obtain employment authorization in the U.S. while in dependent E or L nonimmigrant status

4. Ability to obtain employment authorization in the U.S. while an Adjustment of Status application is pending based on spouse’s employment-based immigration status in the U.S.

The question has often been raised whether these benefits also extend to common law spouses. Black's Law Dictionary (7th ed. 1999), defines a common law marriage as follows:

Common-law marriage: A marriage that takes legal effect, without license or ceremony, when a couple live together as husband and wife, intend to be married, and hold themselves out to others as a married couple. Once a common law marriage has been established, the spouses have the same legal status as a formally married couple, and must go through a legal divorce in order to end the marriage.

The Board of Immigration Appeals has determined that whether or not immigration benefits extend to common law spouses depends on the laws governing common law marriages in the U.S. state or foreign country in which marital status was acquired.

Common Law Marital Status Acquired In the U.S.

Currently only the following 14 U.S. states, plus the District of Columbia, recognize common law marriages:

In order for immigration benefits to be conferred on a common law spouse acquired in the U.S., the following conditions must have been met:

1. Marital status must have been lawfully acquired under the common law marriage statute of one of the above-noted states; and

2. The marriage must be valid under U.S. federal law.

Even if a marriage is valid under state law, it is not valid for immigration purposes if it violates federal law. For example, the federal Defense of Marriage Act defines a marriage as existing only between a man and a woman. By defining marriage this way, federal law bans same sex marriages.Therefore no immigration benefits can be conferred through a same sex marriage.

Common Law Marital Status Acquired Abroad

If common law marital status is legally recognized by the foreign country in which it was acquired, then U.S. immigration benefits can be conferred on the spouse in the same way that they would be conferred on any other spouse of a U.S. citizen, permanent resident, or nonimmigrant.

A foreign marriage that is not legally recognized in the foreign country is not recognized for U.S. immigration purposes either. For example, in Mexico the state reserves the authority to grant marital status to couples. Therefore only a civil ceremony, and not a religious marriage ceremony, is legally binding. The U.S. will therefore not recognize a Mexican marriage, based solely on a religious ceremony, as valid for U.S. immigration purposes.

In order for the Department of Homeland Security to recognize a foreign common-law marriage as valid for U.S. immigration purposes, the country in which marital status was acquired must confer full marital rights, such as property rights, on the married couple.

In Canada, federal law does not provide for a common law marriage, but does automatically provide quasi-legal “common law status” to two people who have lived together for two years. Those partners may be eligible for some government benefits for married people, depending on the family law of the province in which the couple lives. Ontario recognizes common law spouses for spousal support issues, but does not recognize full marital property rights for those couples. Also, common law partners can be compelled to testify against one another in a court of law, whereas legally married individuals are not required to testify against each other. Quebec, on the other hand, has never recognized common law marriages.

Because Canadian law does not grant full marital rights to any common law couple, U.S. immigration laws will not recognize the marriage as legal and will not grant immigration benefits to common law spouses who acquired quasi-legal marital status in Canada.

In summary, whether U.S. immigration benefits can be conferred depends on the following analysis:

Does that state or country in which common law marital status was allegedly acquired recognize common law marriage?

1. If not, then the marriage is not valid for U.S. immigration purposes.

2. If so, then did the couple follow that state’s or country’s rules to recognize such a common law marriage?

1. If not, then the marriage is not valid for U.S. immigration purposes.

2. If so, then does the state or foreign country grant full marital rights to the common law married couple? 1. If not, then the marriage is not valid for U.S. immigration purposes. 2. If so, then the marriage is valid for U.S. immigration purpose

Caveat for Domestic Partners

While non-spouses may not accompany aliens to the U.S. in dependent nonimmigrant status, the Department of State, USCIS, and Customs and Border Protection (and their predecessor organization) have a long standing policy of permitting domestic partners to accompany long-term nonimmigrants to the United States, provided that the cohabitating partner can prove that:

1. His/ her primary purpose in coming to the U.S. is to accompany his/her partner, who is in an authorized nonimmigrant status; and

2. He/she does not intend to work while in B-2 status

This applies both to opposite-sex and same-sex partners.

The period of time for which the B-2 partner is authorized nonimmigrant status will correspond to the period of stay authorized for the other partner, including extensions of the other partner’s stay in the U.S.

There are limitations imposed on the B-2 nonimmigrant that would not be imposed on a dependent spouse. For example, as with any B-2 nonimmigrant, the accompanying B-2 partner must establish that he/she has a residence abroad which he/she has no intention of abandoning, for the duration of stay in B-2 status. Customs and Border Protections officers at ports of entry are particularly stringent on the requirement that the accompanying B-2 partner prove that he/she has an actual, physical residence abroad which he/she has no intention of abandoning. In addition, a B-2 nonimmigrant cannot adjust status to permanent resident and there is no basis for a cohabitating partner to gain permanent residence in the U.S. on the basis of the relationship.