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”). If both partners are absent, a “double proxy marriage” occurs.
A Utah marriage via video conference is valid for purposes of U.S. immigration, if consummated.
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.”
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 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, Kicking the INA out of Bed: Abolishing the Consummation Requirement for Proxy Marriages, 22 Hastings Women’s L.J. 55 (2011).
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. 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.
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 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).
Another example, recently reported on in the New York Times, is 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.
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 couples with proxy marriages under Utah law. Please feel free to contact us to discuss representation in your case.