For many families, marriage provides the opportunity for spousal immigration classification. In order to enjoy the benefit of the classification, the marriage must be a legally valid marriage under U.S. immigration laws. In most cases, the law of place of celebration controls under the Foreign Affairs Manual (FAM). That is, if the marriage was legally valid in the foreign jurisdiction where it was performed, then the marriage is deemed valid for visa adjudication purposes in the United States.
While this rule may seem straightforward it becomes a confusing if not obscure determination in some situations, particularly in common inter-familial marriages such as first cousin marriage. Under 9 FAM 102.8-1 (B), the rule states:
- Void for Public Policy: Certain marriages that are legal in the place of celebration, but are void under State law as contrary to public policy, are not valid for visa adjudication purposes.
(2) Marriage Between Relatives Underage Marriages: Certain marriages between relatives and underage marriages may be void because of public policy concerns even if the place of celebration recognizes the marriage.
If the state determines the marriage violates public policy, i.e. the principle that the state will act in the best interest of the public, then the marriage will be deemed void and the state will not recognize the marriage. While a marriage may be void under state law, it may still be recognized as valid by the state of intended immigration. The legal threshold varies state by state.
For example, first cousins may not marry in Michigan and such marriages in Michigan are considered void from their inception. A 1973 ruling of the Michigan Supreme Court, however, found that a marriage between first-degree cousins married in Hungary was nevertheless valid.
In Texas, a marriage is void if one party to the marriage is related to the other, including first cousins. In 2012 a couple married in India were unable to produce an advisory opinion letter from the Texas Attorney General stating such marriages are legal in Texas as requested by U.S. immigration officials. Their inability to get the state to recognize their marriage further highlights the differences between public policy among conservative and less conservative states.
In contrast, a New York ruling in 2014 held that a Vietnamese marriage between an uncle and his niece was valid. After a series of hearings, the court reasoned that since first cousins are allowed to marry in New York, the genetic risk to any children born to the Vietnamese couple was no more than that between first cousins, who are free to marry. Thus, even though New York law does not explicitly allow marriages between uncle and niece, the couple was able to prevail based on New York’s interpretation of public policy.
Bottom line, even though the law of the place of celebration controls, the exception to the rule becomes a “case by case” determination dependent on where the married couple will reside in the U.S. In any case where you suspect the marriage may not be valid for visa adjudication purposes, contact a qualified immigration attorney or request an advisory opinion from the Advisory Opinions Division.
 9 FAM 102.8-1(B)(b)(2)(a)
 9 FAM 102.8-1(B)(b)(2)(b)
 9 FAM 102.8-1(B)(b)(2)(c)
By Rahul Reddy & Brenda Aguilar
Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries.
Brenda Aguilar is an associate attorney in the firm’s Special Attention Department. Her practice focuses primarily on non-immigrant visas with an emphasis on H-1B and L visas.