Immigration

• Immediate Relatives • Spouse of United States Citizen

By December 15, 2016 No Comments

Spouse, Child or Parent of United States Citizen
The present, statute excludes from numerical restrictions
the “immediate relatives” of American citizens.’ This term
is defined to include the spouses, children and parents of
American citizens.

The Act of 1952 grants immediate relative status to the
alien spouse of a United States citizen.3 This dispensation
is more generous than prior law, since it gives equal benefits
to the husbands and wives of American citizens.

(1) Valid and subsisting marriage as prerequisite. In
order to obtain exempt status, or to obtain other immigra
tion benefits available to a “spouse,” here must, of course,
he a valid and subsisting marriage between the parties. The
validity of a marriage ordinarily will he judged by the
law of the place where it is celebrated.4 Moreover, the dis
tinction between void and voidable marriages should be
borne in mind. If the marriage is merely voidable, it will be
recognized for immigration purposes, so long as the mar
riage subsists.

(2) Marnier of inception of marriage. The manner of
inception of the marriage may be defective. At one time a
common law marriage (one depending only on mutual con
sent to marry) was recognized in large areas of the United
States, although most States no longer sanction such mar-
riages. However, such unions are unknown to the jurispru
dence of many countries. Religious ceremonies alone may
not create a binding marriage in some countries.

(3) Legal impediments. Another factor which may im
pair the legality of a marriage is the existence of legal
impediments. The most obvious example is when one of the
parties has a living spouse and thus is not free to marry.
The situation is complicated, of course, when one of the
parties has obtained a divorce of questionable soundness,
such as a Mexican mail order divorce prior to his remar
riage. The essential inquiry is whether the second mar
riage was regarded as lawful at the place of its celebration.

(4) Polygamous or incestuous marriages. Even if the
marriage is valid at its place of origin it may in some ex
ceptional situations be inadequate to support preferred
status. This recognition may be refused when the marriage
is repugnant to public health or morals, such as polygam
ous (plural) or incestuous (close relatives) marriages.

(5) Proxy marriages. Marriages by proxy and similar
tenuous unions also may not be recognized for immigration
purposes, since the 1952 Act defines “spouse,” “wife,”
or “husband” as excluding the participants in any mar
riage ceremony where the parties are not physically pre
sent in the presence of each other, unless the marriage has
been consummated.

(6) Sham marriages. Finally, a marriage which on its
face seems valid may be disregarded if it is found to be
a sham, entered into by the parties only for the purpose
of obtaining immigration benefits and without any inten
tion to live together as husband and wife. This is so even
though the marriage is regarded as valid at the place of
celebration.

Francisco Hernandez

Author Francisco Hernandez

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