Is a Utah Marriage Over Zoom Valid for Immigration Purposes?

Generally speaking, a proxy marriage is a wedding in which one or both of the individuals being united are not physically present, and perhaps are being represented instead by other persons (“proxies”). If both partners are absent a “double proxy marriage” occurs.

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.  

Other reasons for proxy marriages include 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).

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. 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.”

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. Matter of W-, 4 I. & N. Dec. 209 (BIA 1950).

But there is one caveat. The Immigration and Nationality Act does not recognize proxy marriages unless consummated, i.e., unless the couple has had “marital relations” after the ceremony. The statute provides:

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 further explains:

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

(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)…. [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, hotel bills, photos taken together) and a declaration (without graphic details) explaining that the couple had “marital relations.”

The New York Times recently reported on an a man from the United Kingdom denied admission to the U.S. because his marriage had not been consummated. His girlfriend had visited him in UK, become pregnant, and then returned home to Texas. They subsequently had a Utah County wedding over Zoom, after which he tried to fly to the U.S. to visit her but was turned away because they had not consummated the marriage after the wedding. With an unconsummated proxy marriage, he did not qualify for the “spouse” exception to the COVID travel ban. Happily, he applied to the U.S. Embassy in London for a “national interest exception” to the COVID travel ban on humanitarian grounds, was approved, and was able to fly to the U.S.

15 comments

    1. Lynn: If you are asking about first having a Utah video conference wedding then having the U.S. citizen file a USCIS Form I-129F for the foreign fiancé(e), what is the goal you are trying to accomplish?

      1. I was trying to speed up the process.
        I filed a k1 fiancé visa several months ago. I was wondering if getting married by zoom would speed up the processing of the visa?

        1. Anitra: If you enter into a marriage that is recognized as such for U.S. immigration law purposes (for example, a Utah Zoom marriage which is subsequently consummated), then the K-1 visa can no longer be issued because you are no longer the fiancée of a U.S. citizen. If you enter into such a marriage, it would be an option to have the U.S. citizen spouse file a Form I-130, Petition for Alien Relative, on your behalf. But whether that option would speed your immigration would turn on a number of factors. Feel free to schedule a consultation to discuss.

  1. My fiancée and I are really happy to have found this article. She lives in Fushun, Liaoning, China and I live in the state of Florida. We want to begin our new life together, and due to COVID everything has stopped us from our new beginning. You have rekindled our hope of finding a solution. And will look to your law firm for counseling and guidance. In anticipation of that breakthrough,
    Jay

  2. After a proxy marriage, can the non-US citizen spouse travel to the United States under the exception to Presidential Proclamation 10143 (the COVID regional travel ban for the Schengen Area, United Kingdom, Ireland, Brazil, and South Africa) for the “spouse” of a US citizen, or are they not considered a “spouse” until the marriage has been consummated?

    1. Brian: Generally, terms used in the Immigration and Nationality Act (INA), as well as in regulations and related rules, should be interpreted consistently throughout, so agencies presumably would interpret the word “spouse” in Presidential Proclamation 10143 consistently with INA § 101(a)(35), which states that 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.

  3. Is consummation ex post facto the only way to legitimize a marriage in the eyes of the Feds? What about consummation BEFORE the marriage? And since when has the Federal government taken it upon itself to interfere with civil law of the various States as pertains to marriage?

    1. D.M.: Consummation before a proxy marriage is not sufficient to constitute a valid marriage for immigration law purposes. That was the holding in Matter of W-, 4 I. & N. Dec. 209 (BIA 1950), where the bride appeared at the wedding just two weeks before giving birth to the groom’s child.

      As to whether the Federal government improperly interferes in the States, I’ll leave the question for another day, except to mention that in 1996 Congress created a federal definition of “marriage” in the the Defense of Marriage
      Act (DOMA) as meaning a union between one man and one woman. The Supreme Court subsequently held that to be unconstitutional in United States v. Windsor (2013) and Obergefell v. Hodges (2015).

  4. Dear Sir: Difficult situation here…. My Chinese girlfriend and I have proof we have been communicating online for 15 months and spend several hours each day on video. If we marry online in Utah, will this improve her chances of immigration?

    1. Jack: As mentioned in the above article, the online marriage in Utah won’t count for immigration purposes until it has been consummated. Do you have a plan to get together in person for that purpose?

  5. I just want to point out that although “marriage” requires consummation for purposes of the Immigration and Nationality Act, maybe no consummation is required for other purposes:
    1. The US Treasury/IRS definition of married for federal tax purposes is legal if recognized by the state it was performed in. Therefore if you get married this way, you could and probably would be required to use a married filing status, and could possibly benefit for some favorable tax rates or benefits, might have to declare your fiancé’s income, and also might generate FBAR/foreign asset filing requirements.
    2. You might be able to use this strategy to guarantee your fiancé was covered by your health benefits the moment he/she arrived. I can’t imagine a health insurance plan requiring consumption.

  6. If you get a Utah video conference marriage ceremony, and then apply for a K-1 visa, do you risk being accused of consummating the marriage if you meet in person after the ceremony but before the K=1 visa is approved?

    1. Zhou Yu: That sounds like a reasonable line of questioning by the consular officer. Why would you want to have a Utah video conference marriage ceremony then apply for a K-1 visa?

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