Monday, August 19, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

B. Modern Immigration and Naturalization: Privileging and Shaping Marriage

The regulation of sex, morality, marriage, and the family is at the root of much of U.S. immigration law. Starting with the 1875 Page Act, federal immigration law has defined and shaped marriages based on Western morals and values. Today, marriage continues to be an important factor in decisions concerning immigration and naturalization. Not only are certain marriages privileged, but couples shape their marriages in a way that comports with American notions of a valid marriage, even if that notion deviates from that couple's cultural norm. Judgments about a valid marriage inform IMBRA's regulations, which only affect marriages that are perceived to deviate from Western norms of marriage based on the notions of free choice and consent.

In 1965, with the enactment of the Immigration and Nationality Act (INA), marriage played an even more important role in immigration and naturalization as family-based visas became the principal means of immigration. In 2005, around 300,000 immigrants gained residence as spouses of U.S. citizens and legal permanent residents (LPR). The rationales for family-based visas include the notions that American citizens have an interest in forming families, both with citizens and noncitizens. American citizens also have the right to exercise their own citizenship by passing it along to others. Marriage indicates that a person is member of the American community because through marriage, the American citizen demonstrates their close ties to their spouse, whom they have chosen to include in the American community. Marriage, in this sense, is evidence of cultural assimilation, as the spouse of a U.S. citizen is perceived as likely to adopt American values.

Since 1965, marriage has become a significant way in which individuals can immigrate to the United States or gain American citizenship. Moreover, marriage to a citizen or LPR can help qualify the spouse for an exception or waiver if they are denied entry on certain grounds. As such, marriage has become more important for Congress to regulate. Immigration law, in essence, burdens American citizens wishing to marry aliens in a way they would not be burdened if they married a fellow American citizen. Immigration law is thus being used to regulate the marriages (and by extension, the family) of U.S. citizens. Today's regulations hark back to previous immigration laws that once stripped American women of their citizenship based on their decisions to marry noncitizen men.

One such regulatory burden requires U.S. citizens to fill out an affidavit of support demonstrating that they can support their noncitizen spouse at an annual income that is not less than 125% of the federal poverty line. Here, Congress regulates marriage by creating a permanent financial obligation to support a spouse, which does not apply to marriages between two American citizens.

Another burden imposed on American citizens and their foreign spouse is that in order for the noncitizen spouse to naturalize, the couple must prove that their marriage meets the standards for a valid marriage based on Western norms, regardless of what marriage means to that particular couple. Any decision about the validity of a marriage requires a judgment about what constitutes a proper marriage. Legal documentation of a marriage does not suffice. As outlined in the INS regulations that accompany the Immigration Marriage Fraud Amendments (IMFA) of 1986, a couple may demonstrate the legitimacy of their marriage through--among other factors-- joint ownership of property, comingling of finances, and children. These hallmarks of a good faith marriage by American standards do not comport with marriages in other countries, or even some marriages in America. For example, not all married couples share bank accounts, own property jointly, or choose to procreate. However, because of these benchmarks of a legitimate marriage under IMFA standards, immigrants are often pressured to self-police their marriages, crafting the types of marriages they think will pass immigration interviews. Immigration officials and courts continue to use cultural norms and stereotypes of marriage, privileging and promoting certain marriages over others.

Under the definition of a good faith marriage, the beneficiary spouse must enter the marriage with the intention of establishing a life together, and not for immigration benefits. The beneficiary spouse is under suspicion of immigration fraud until proven innocent. This is reminiscent of nineteenth century immigration policies, which presumed that all Asian females seeking to immigrate to the United States were prostitutes, unless they could prove their good moral character and voluntary immigration before being admitted to the United States.

In assessing the good faith of a marriage, the beneficiary's motives for entering the marriage are questioned, but not the sponsor's motives. While the absence of immigration-related motives on the beneficiary's part is enough to establish a good faith marriage, the sponsor may have married the beneficiary to get free domestic labor or a free sex partner. When the beneficiary is singled out for the good faith test, it suggests that motives based on gaining citizenship are deemed worse than the desire to acquire free labor or sex.

Marriage has been used since 1885 as a means of granting or denying American citizenship. Coupled with notions about race, laws surrounding marriage and citizenship were complex and changed often in the early 1900s. In 1965, marriage became an important means through which women could immigrate to the United States and naturalize as American citizens. Thus, assessing the validity of marriages became an extremely important issue for Congress, immigration officials, and courts. Especially after concerns were raised that many marriages were in fact fraudulent, Congress passed the IMFA, which judges marriage based on Western norms. Certain types of marriages between American citizens and foreigners still arouse suspicion, even though such marriages would not be regulated if both spouses were American citizens. Judgments about the legitimacy of certain marriages between American citizens and foreign spouses, along with concerns about potential for abuse in such relationships, ultimately led to the enactment of IMBRA.

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