Utah Marriage Over Zoom Is Valid for Immigration Purposes

Generally speaking, a proxy marriage is a wedding in which one or both of the individuals being united are not in the physical presence of the officiant. An absent party may be represented by another person (“proxy”).

Historically, some reasons for proxy marriage have included separation due to military service, imprisonment, or travel restrictions; or when a couple lives in a jurisdiction in which they cannot legally marry (e.g., Israel, where only religious marriages are allowed).

During COVID-19, proxy marriages have proliferated because lockdowns and international travel restrictions have made it harder for couples to get to the same place to marry.  Since the pandemic began, our law firm has represented more clients with proxy marriages, including Utah marriages over Zoom.

Most U.S. states do not allow proxy marriages. But Utah does. The officiant must be present in the state of Utah, but the couple may reside and be physically present out of state, including abroad. The marriage license application can be signed electronically. The ceremony can be held over video conference. For more, see the website of the Clerk/Auditor of Utah County, Utah on “Getting Married via Video Conferencing in Utah.”

Is a Utah Video Conference Wedding Really a “Proxy” Marriage?

The Immigration and Nationality Act excludes from the definition of “spouses” couples who were not both physically present with the officiant at the wedding ceremony, unless the marriage was subsequently consummated:

The term “spouse”, “wife”, or “husband” does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.

– INA § 101(a)(35), 8 U.S.C. § 1101(a)(35)

The State Department’s internal rules, called the Foreign Affairs Manual, refer to marriages where the couple were not both physically present with the officiant at the wedding ceremony as “proxy marriages”:

A marriage where one or both parties was not present (proxy marriage) is not valid unless the marriage was consummated….

– 9 FAM 102.8-1(D) Proxy Marriages

The USCIS’ internal rules, found in the USICS Policy Manual, are similar:

USCIS does not recognize the following relationships as marriages: … Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the marriage has been consummated.

–12 USCIS-PM G.2(A)(1)

The historic rationale for treating proxy marriages different than other marriages is the concern that the absent party is not able to directly manifest their voluntary to consent to the officiant. See Kathryn Rae Edwards, Kicking the INA Out of Bed: Abolishing the Consummation Requirement for Proxy Marriages, 22 Hastings Women’s L.J. 55, 60-61 (2011).

The Consummation Requirement

U.S. immigration law generally follows the ancient legal maxim of lex loci celebrationis, under which a marriage will be recognized as valid if it was valid in the jurisdiction in which it was performed, so long as it does not violate the public policy of the couple’s state of planned or actual residence (e.g., polygamous marriages, marriages involving certain relatives, marriages involving a minor). Matter of W-, 4 I. & N. Dec. 209 (BIA 1950). U.S. courts have held that proxy marriages do not violate public policy. Tshiani v. Tshiani, 56 A.3d 311 (Md. App. 2012); State v. Anderson, 396 P.2d 558 (Or. 1964); Barrons v. U.S., 191 F.3d 92 (9th Cir. 1951). See Kathryn Rae Edwards, supra.

One caveat to the rule of lex loci celebrationis, not discussed here, is that the Immigration and Nationality Act does not recognize marriages entered into solely for purposes of qualifying for a visa, meaning sham marriages that are not entered into by the couple in good faith for purposes of making a life together. See Guide to Form I-130, Petition for Alien Relative, and Top 11 Ways to Prove a Valid Marriage for Immigration.

Another caveat is that the Immigration and Nationality Act does not recognize proxy marriages unless consummated, i.e., unless the couple has had “marital relations” after the ceremony. This is a statutory requirement, as discussed above.

The State Department’s Foreign Affairs Manual further explains the consummation requirement:

(1) Consummated: For the purpose of issuing a visa to a “spouse,” a proxy marriage that has been subsequently consummated is deemed to have been valid as of the date of the proxy ceremony. A proxy marriage consummated prior to the proxy ceremony cannot be considered a valid marriage for visa adjudication purposes unless it has been consummated subsequently.

(2) Unconsummated: A proxy marriage that has not been subsequently consummated does not create or confer the status of “spouse” pursuant to INA 101(a)(35). For IV cases, a party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e). A proxy marriage celebrated in a jurisdiction recognizing such marriage is generally considered to be valid; thus, an actual marriage in the United States is not necessary if such alien is admitted to the United States under INA provisions other than as a spouse.

– 9 FAM 102.8-1(D) Proxy Marriages

Evidence of consummation could include evidence that the parties were in the same location on a particular date after the marriage (e.g., airplane tickets and any admission stamps in passport(s), hotel bills, photos taken together) and a declaration (without graphic details) explaining that the couple had “marital relations.”

The consummation requirement for proxy marriages applies to all definitions of “spouse” under the Immigration and Nationality Act, such as:

• Naturalization as the “spouse” of a U.S. citizen;
• Qualification for a green card as the “spouse” of a U.S. citizen, a permanent resident, or a principal beneficiary of an immigrant petition.
• Qualification for a nonimmigrant visa as the “spouse” of certain nonimmigrants (e.g., F-1 student, J-1 exchange visitor, H-1 temporary worker, L-1 intracompany transferee).

Concluding Thoughts

Many persons have asked whether a proxy marriage will help them qualify for a B1/B2 (visitor for business or pleasure) visa. Being the spouse of a U.S. citizen is not a requirement for that visa. For more on proving the required nonimmigrant intent for that visa, see Entering the U.S. as a Visitor When Engaged or Married to a U.S. Citizen.

The Immigration and Nationality Act has focused on proxy marriages since 1924, when the terms “wife” and “husband” were defined to exclude a spouse “by reason of a proxy or picture marriage.” Congressional intent was to ensure that marriages were in good faith, and more generally, to limit immigration of women from Japan and Eastern/Southern Europe. See Kerry Abrams, Peaceful Penetration: Proxy Marriage, Same-Sex Marriage, and Recognition, 2011 Mich. St. L. Rev. 141. Given the Immigration Fraud Amendments of 1986, which took a number of steps to deny immigration benefits to marriages that are not in good faith, the consummation requirement may be out-of-date. But for now it remains on the books.

It has been our firm’s pleasure to successfully represent in U.S. immigration matters many couples, including same-sex couples, with proxy marriages under Utah law. Please feel free to contact us to discuss representation in your case.