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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 clearly excludes from the definition of “spouses” couples who were not in each others’ presence when married, but it is ambiguous about whether they need to be in the presence of the officiant at the marriage ceremony:
– INA § 101(a)(35), 8 U.S.C. § 1101(a)(35)
The State Department’s internal rules, called the Foreign Affairs Manual, mirror the Act:
– 9 FAM 102.8-1(D) Proxy Marriages
The USCIS’ internal rules, found in the USICS Policy Manual, are similar:
–12 USCIS-PM G.2(A)(1) (marriages for purposes of naturalization)
The INA limits spousal relationships for immigration purposes to those where the parties to a marriage were both present during the marriage ceremony
–4 USCIS-PM C.2(A)(2) (marriages for purposes of refugee and asylee status)
The strongest authority that the couple must be physically together “at the marriage ceremony” is the Form I-130 Instructions 2 (Apr. 1, 2024), which state that a Form I-130 may not be filed for a spouse
if you and your spouse were not both physically present at the marriage ceremony, unless the marriage was consummated.
(Emphasis added).
This is consistent with the underlying policy. 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). Before the advent of telephones and videoconferences, a party not physically present with the officiant was unable to communicate their current consent.
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:
– 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 the date and place the couple had “marital relations” after the marriage.
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.
Further Reading
Hong Kong LGBTQ couples seek love, recognition in mass wedding – Digital Journal (June 26, 2024)
Israel must recognize online marriages conducted via Utah, Supreme Court rules | The Times of Israel
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