A same-sex couple seeking a green card based on their marriage was asked recently at a U.S. Citizenship and Immigration Services interview whether they are monogamous. The interview went something like this:

Q: How did you begin dating?

A: We met at a gay club.

Q: Have either of you had any other sexual partners since you met?

A: We broke up once, and dated other people during the breakup, but we are currently monogamous.

The officer approved the case. Still, the couple felt the question about monogamy was overly intrusive into their private affairs. Further, the couple wondered if the question was possibly homophobic–similar questions are rarely asked of heterosexual couples. Maybe the officer was trying to feed his own stereotype.

Deeply personal questions

Apart from questions about monogamy, other questions asked about couples’ sex lives include, for example:

• When did you last have sex? Where?
• How often do you have sex?
• Are you planning to have children? How many?
• Do you use birth control? What type?
• Is your husband circumcised?
• Does your spouse have any tattoos in private places?
• At what point did you realize you were gay? Have you had sex with someone of the opposite gender?

USCIS officers as well as consular officers at U.S. embassies and consulates abroad are tasked with interviewing couples to determine whether a marriage is a sham. Only valid (“bona fide”) marriages can confer immigration benefits. A marriage is valid if, at the time the couple married, they had the intention to form a life together, as opposed to marrying solely to obtain an immigration benefit. Matter of Laureano, 19 I. & N. Dec. 1, 2-3 (BIA 1983). The burden is on the couple to prove that the marriage is valid. See Matter of Casillas, 22 I. & N. Dec. 154, 156 (BIA 1998); see also INA § 291 (burden on petitioner to demonstrate eligibility for visa petition).

Officers routinely ask questions about the relationship before and after the marriage in order to infer the couple’s intention at the moment of marriage. Matter of Laureano, 19 I. & N. Dec. at 3 (citing Lutwick v. United States, 344 U.S. 604, 617 (1953)). For example, officers ask to see couple’s joint tax returns filed after marriage. And the officer may ask, “do your parents know about your marriage?”

Arguably, questions about a couple’s sex life after are also relevant. For example, if the officer suspects fraud and interviews the couple separately about their sex lives, conflicting answers could support a denial.

But are such questions off limits because they violate privacy?

The most specific guidance is found in the USCIS Adjudicator’s Field Manual (AFM) at chapter 15.3(b):

When questioning persons concerning sexual relations, always avoid questions which can be construed solely as prurient or prying.

The term “prurient,” taken from obscenity law, refers to an immoderate, degrading, or unhealthy interest in sex. This should presumably prohibit any questions about specific sexual practices.

But apart from questions that can be construed “solely” as “prurient or prying,” other questions about sexual relations (e.g., monogamy, plans to have children, and birth control) are implicitly authorized by the above AFM provision.

Interestingly, USCIS officers have more leeway now than in the past to ask about customers’ sex lives. The old INS Examinations Handbook, Relative Petitions, Interview, at III-14 (Oct. 1, 1982), instructed: “You must avoid any highly personal areas such as sexual relations.”

It’s also an open question whether government questioning about couples’ sex lives violates a constitutional right to privacy in their marital relationship. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (finding that a law forbidding the use of contraceptives between married couples violated the couples’ right to privacy). See also Marcel De Armas, For Richer or Poorer or Any Other Reason: Adjudicating Immigration Fraud Cases within the Scope of the Constitution, 15 Am. U.J. Gender Soc. Pol’y & L. 437 (2007).

Questioning customers’ about their sex lives is partially constrained by USCIS policy to treat customers “with dignity and courtesy.” USCIS Policy Manual 1.1. And officers must “ensure that their demeanor is unprejudiced.” AFM ch. 15.3. For example, it should make no difference whether the couple is same-sex or heterosexual. After the United States v. Windsor decision striking down DOMA, 133 S. Ct. 2675 (2013), the Secretary of Homeland Security directed that USCIS should “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Statement by Secretary of Homeland Security Janet Napolitano on the Supreme Court Ruling on the Defense of Marriage Act, July 1, 2013.

Clients and attorneys should plan for how to respond to such questions

For USCIS interviews:

• Before the interview, the lawyer and clients should make a plan for whether to answer or object to specific questions about the clients’ sex lives.
• During the interview, clients should avoid X-rated answers and inappropriate public displays of affection (in a Federal official’s office, intermittent hand holding may be appropriate, but snuggling is not).
• At the interview, if a seemingly inappropriate question is asked, the lawyer can object and, if necessary, ask to speak with a supervisor. USCIS policy requires that a supervisor be made available for this purpose. USCIS Policy Manual 1.6. Slightly less confrontational than making an objection, the lawyer could also ask the officer something like, “My clients consider their sex lives to be very private. Do you mind deferring this question to see if other evidence can satisfy you that the marriage is valid?” A soft touch may avoid antagonizing the officer.
• After an objection has been made, if the supervisor decides that the question is fair, the lawyer may need to advise the couple that refusal to answer could result in the officer determining that–based on the totality of the evidence–the couple has not met the burden of proof required for the case to be approved.

Regarding interviews before consular officers, I’m unaware of any policies limiting the scope of questions they may ask, other than a broad Customer Service Statement that “We will treat you with dignity and respect.” Nor is there any right to escalate the issue to a supervisor. And in many consular posts there is no right for the attorney to be present at the interview. In such cases, the lawyer will need to educate the clients so they can make the judgment call whether to object to a question and whether to ask to speak with a supervisor.