Marriage Equality, Immigration, and … Fraud?

The demise of DOMA may mean that same-sex married couples are now entitled to the same marriage-based immigration benefits as anyone else. But marriage equality also entails equal burdens. As I argued in Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev. 1625 (2007), immigration law holds marriages involving immigrants to a higher standard than the law ordinarily demands, and this will now be true for same-sex couples.

Under state family law, married people are not required to live together. They don’t have to open joint bank accounts, jointly own property, take extensive vacation photos, document which guests attended their weddings, or know the color of their spouse’s toothbrush. They don’t even have to have sex. Of course, married couples might do these things, and they often do. But the law doesn’t intrude into what are considered private family decisions, unless the couple divorces, and then it intervenes to protect the ex-spouses from each other.

But when an immigrant seeks a benefit based on marriage, immigration officials look to a variety of factors¬—including the ones listed above—to determine whether the marriage is “genuine.”

I argued in Married Fraud, 100 Cal. L. Rev. 1 (2012) that this close scrutiny isn’t really surprising, given the nature of the benefit at stake. In that article, I canvassed the many instances in which the law uses marriage as a threshold requirement for a public benefit. I showed that some types of public benefits result in more intrusive government interference than others: those that are substantial and those that endure even if the recipient gets divorced.

Health insurance, for example, is a nice benefit, but it is largely prospective: you don’t know if and when you’ll need it. It can also be obtained using means other than marriage. Its costs have been shunted onto private employers (and likely passed through to employees). Some people marry for health insurance, true, but usually to someone with whom they are already in a relationship. That’s because they need to stay married to use it. Immigration benefits, in contrast, have an immediate utility that is often unavailable through any other means. And you don’t have to stay married to keep the benefit. As a result, immigration benefits are highly susceptible to abuse, and the government has responded by closely scrutinizing marriages when they are tied to immigration status. Sometimes, this close scrutiny has the unfortunate effect of requiring a more traditional form of marriage from citizen-immigrant couples – joint bank accounts, shared domicile, traditional gender roles, etc.

So what does this all mean for same-sex couples? Two consequences come to mind. The first is that although same-sex couples will now be able to seek immigration status based on marriage, they will also be subjected to the same close scrutiny as other couples. To the extent that same-sex couples structure their lives similarly to straight couples, this won’t be a big deal (or at least it won’t be any worse than it already is for straight couples). But there’s some evidence that same-sex couples are different, on average, for example, that they are more egalitarian about child-care responsibilities. If that’s true, will the pressure to conform to what immigration officials deem to be a “typical” marriage be even more onerous for same-sex couples than for opposite-sex couples?

Second, one frequently-voiced reason for opposing benefits for same-sex couples is that doing so invites fraud. On this theory, two heterosexual friends could marry just to seek immigration benefits. On its face, this argument seems kind of silly. A heterosexual person can already commit fraud under current law—just not with a person of the same sex. And a gay person could marry an opposite-sex friend, so it’s not clear why marriage equality suddenly opens up the door to massive fraud. The underlying fear may have more to do with uneasiness on the part of marriage equality opponents about how to identify a “real” LGBT relationship.

This uneasiness could lead to a different problem. If immigration officials feel uncomfortable in judging the bona fides of a same-sex marriage, they may begin to pressure applicants to “perform gayness” in a more overt way. This appears to be what has happened in the asylum context. Individuals who have sought asylum because they were persecuted for their sexual orientation have reported feeling that they had to demonstrate they were “typically” gay in order to convince government officials that they deserved asylum. One man interviewed by the New York Times, for example, reported wearing pink eye shadow and a bright pink V-neck shirt to his interview and engaging in “intermittent outbursts of tears.”

Opening immigration benefits to same-sex spouses is the right thing to do. But it’s something that I hope the government does with care. There is a danger that same-sex couples will be required to force themselves into an ill-fitting traditional marriage norm, and a simultaneous danger that they will be encouraged to embody cultural stereotypes of gayness.

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12 Responses

  1. Matt says:

    Something people may not know who don’t work in this area is that there is a really wide range of scrutiny given to different marriages- from essentially none to very probing.

    (For example, in my own case, my wife and I had an extremely short and non-probing interview with an immigration officer, asking us, together and in the same room, nothing harder than when and where we met and when we got married. I had brought a large amount of “documentary” evidence that we had a bona fide good faith marriage- joint bank account, joint lease, pictures from the wedding, etc. The interviewer never asked to see it. I asked him if he wanted to see it and he said, “oh, yeah, sure”, flipped through it too fast to see anything, said, “well, things look good”, and approved us.)

    It will be interesting to see whether same-sex couples are subjected to heightened scrutiny at all. Legally, of course, they ought not be, and none of the things mentioned above is _required_, but I can well imagine a more probing looking being given, even when not justified.

  2. Jimbino says:

    The solution, of course, is to permit any adult Amerikan to sponsor any foreigner for immigration. That would put an end to the privilege enjoyed by marrieds of both persuasions.

    As far as I’m concerned, immigration privilege is one of the few perks of marriage that is not available outside it: love, friendship, companionship, sex, cohabitation, and breeding are just as available, if not better, outside marriage. I have long said that immigration concerns would be the only justification for my marrying. In any case, those who are inclined to marry are fools for marrying a person of their own nationality when foreign green cards are available to both if they have the sense to court a foreigner.

    It’s little known, but a man could marry a series of five foreign women, divorcing each after 10 years, and all, though lifelong serving him as a housewife and not working, would be entitled to the full spousal share of Social Security benefits based on his income alone. Ditto for all the children they all produce. This provides a great incentive for a man to marry a series of young foreign women each of which will love and serve him, oh so much, for 10 years!

  3. Brett Bellmore says:

    The “ill fitting marriage norm” of being married in fact, and not just name? I still recall the evidence I had to provide when my wife applied for her green card after the short probationary period, and had we not lived in the same domicile that certainly would have been a killer.

    Doubtless different interviewers apply different levels of scrutiny, and I expect it also varies with country of origin, sham marriages being more common from some than others. But that “ill fitting norm” is simply what’s meant by “marriage”, and if homosexuals don’t intend to follow it, they shouldn’t be expropriating the term.

  4. prometheefeu says:

    Actually, I believe a sham homosexual marriage among heterosexuals may be easier than a sham heterosexual marriage among the same. First, one’s friends are more frequently of one’s own sex which may make it easier to find a willing accomplice. Also, engaging in a sham which mimicks your own desires may make one more uncomfortable. E.g. I would imagine a woman would be concerned that living with her fake husband could result in sexual harrasment, etc… Two heterosexuals of the same sex would not face such a concern. Neither would two homosexuals of opposite sex, but homosexuals are much less prevalent than heterosexual.

  5. Joe says:

    A sham marriage that requires you to publicly be married to a member of the same sex for many people would make them feel more uncomfortable. They might feel others might assume they were homosexual. And, as to fear of sexual harassment, if they had that fear, would they risk the sham marriage? Wouldn’t that usually occur with someone you can trust?

    The “ill fitting marriage norm” is not what is “simply” meant by marriage. It is the stereotypical view of what marriage means, same sex or different sex. There is not “one right” way to be in a marriage. Different sex marriages can violate assumptions too.

  6. Glenn Cohen says:

    Great post Kerry. I am wondering if you’ve thought about the impact of “monogamish” (to use Dan Savage’s term) marriages in the same-sex community and its relationship to marriage fraud, something I’ve been puzzling over. Some same sex couples experiment with marriages of various degrees of openness. Will being in a quite open marriage make it more likely you will be accused of marriage fraud, or is sexual monogamy irrelevant on the government’s approach to these things?

  7. Matt says:

    or is sexual monogamy irrelevant on the government’s approach to these things? –

    There are no official requirements on the form or nature of the marriage relationship at all, so long as it’s not a violation of public policy (so, no plural marriage, no child marriage, etc.) and the marriage wasn’t entered into solely for the purpose of getting immigration benefits. (One important case on this issue is Bark v. INS, 511 F.2d, 1200, (9th Cir.) 1975, “Aliens cannot be required to have more conventional or more successful marriages than citizens.”)

    What matters is being able to prove that one’s marriage is a ‘bona fide good-faith marriage’. That can be done any number of ways, but no particular way is required. Officially, immigration officials are not supposed to ask about people’s sex life at all, though of course they often do. But, things like co-mingling finances and the like (having a joint checking account, credit card account, etc.) are usually very strong bits of evidence of having a good-faith marriage.

    Some cases raise more suspicion than others- if, say, someone had a “mail-order bride” from the Philippines, and had never gone there or met the person before she came to the US, this might raise more suspicion than people who had known each other for some time before getting married. So, more evidence might be, properly, required. But, there is very little that’s officially required in any case, and no good reason why same-sex couples should be subjected to harder standards (though of course it’s likely that prejudice will lead to them being so subjected in some cases.)

  8. prometheefeu says:

    Matt,

    I really wish those requirements would be made less vague. While going through that process, I had 0 knowledge of what they meant by a good-faith marriage and I still don’t. Clearly, marriages are frequently entered into in order to get all sorts of government benefits between people who have a romantic relationship. Are those good-faith marriages?

  9. Matt says:

    Clearly, marriages are frequently entered into in order to get all sorts of government benefits between people who have a romantic relationship. Are those good-faith marriages?

    Probably, or at least possibly. You can even get married _in part_ for immigration benefits and have a marriage be a bona fide good faith marriage. (It’s likely, for example, that my wife and I would have gotten married later than we in fact did, if we both lived in the US, and so didn’t “have to” get married if we wanted to live together.) For immigration purposes, what matters is that the marriage not be _solely_ for immigration benefits. Those benefits often are, and can be, one reason among others. the question then is just how this is proven, to the appropriate degree, to immigration officials, and there is, for obvious reason, no one way. But, co-mingling finances is a quite good way, since most people are not willing to open a joint bank account, or go into debt with, people they have a merely casual relationship with.

    (A true case: a couple whose case I did a bit of work on said they got married not because they were in love, but because they lusted after each other and really wanted to have sex, but believed sex outside of marriage was a sin. For immigration purposes, this was accepted as a completely valid reason to get married.)

  10. This is a very timely article and is a sensitive topic to discuss but I admire you for doing such a great job in this write-up. This issue should be tackled and given attention to to clear things up.

  11. Brett Bellmore says:

    “Some cases raise more suspicion than others- if, say, someone had a “mail-order bride” from the Philippines, and had never gone there or met the person before she came to the US,”

    My wife is from the Philippines, and I was informed that this was more in the nature of an absolute requirement, than being advisable. But, really, who would be foolish enough to enter into a marriage with somebody they’ve never met?

  12. Kerry Abrams says:

    Thank you to all of the commenters for your insightful personal stories and opinions. I’ve always thought that the range of actual experiences (and how much they can deviate from the letter of the law) in this area is fascinating. In response to Glenn Cohen’s and Matt’s specific comments – although it’s true that there’s no monogamy requirement, that doesn’t mean that openly sharing with immigration officials that one is in an “open” marriage would necessarily be a wise idea. Although the Bark case did state, as Matt notes, that “aliens cannot be required to have more conventional or more successful marriages than citizens,” that statement was made in the context of determining whether a marriage that broke up later must have been a sham. The court noted that couples separate for all sorts of reasons, and that separation, without other evidence, does not mean that a marriage wasn’t genuine. But do aliens have to have “more conventional” marriages than citizens? Sure they do. Deviating too far from the conventional marriage script can be fatal to a visa petition (and will be largely left to the discretion of the particular immigration official examining the case). So there’s good reason to wonder what norms will be required of gay men and lesbians. I suspect that new norms of performing gay marriage will develop over time, but it’s probably too early at this point to know what they will be.