Marriage in American immigration policy and practice
Marriage plays a significant role in American immigration policy and practice, functioning as a primary avenue for individuals to gain legal entry into the United States. Historically, marrying a U.S. citizen or resident has facilitated easier access to immigration, drawing scrutiny towards marriages deemed as "convenient" or fraudulent. From the Chinese Exclusion Act of 1882, which restricted the immigration of Chinese laborers and defined women's citizenship status by their husbands, to the War Brides Act of 1945, which allowed foreign wives of U.S. servicemen to immigrate, marriage has been central to immigration discussions.
The Immigration and Nationality Act of 1952 established a preference system for spouses of U.S. citizens, which was further reinforced in 1965, emphasizing family reunification as a key principle of immigration law. Despite these advancements, the recognition of same-sex marriages introduced complex legal questions, particularly regarding immigration benefits for same-sex partners. Landmark rulings in the early 21st century, including the 2013 Supreme Court decision against the Defense of Marriage Act, ultimately expanded these benefits to same-sex couples. More recently, President Biden's immigration reforms have provided protections for undocumented spouses, allowing them to seek lawful permanent residence while remaining with their families in the U.S. This ongoing evolution of marriage within immigration policy reflects changing social norms and the legal landscape surrounding family structures in America.
Marriage in American immigration policy and practice
DEFINITION: Socially recognized institution whereby two adults are joined in a special kind of social and legal dependence
SIGNIFICANCE: From the earliest years of the United States, marriage has been a central part of American immigration policy and practice. Marrying American citizens or residents has become the easiest and most common way to enter the United States legally—a fact that has attracted additional government scrutiny to so-called marriages of convenience. The rise of same-sex marriage as a social issue also posed difficult new legal questions about marriage and immigration.
The first major piece of federal legislation on immigration, the Chinese Exclusion Act of 1882, barred most immigration from China to the United States. Chinese born in the United States were still regarded as American citizens. However, Chinese-born workers then already residing in the United States could reenter the United States after leaving the country only with reentry certificates issued by American customs collectors. This early legislation involved marriage because the wives of Chinese-born laborers were prohibited from entering the country, even if the men had valid reentry certificates, and because women were defined by the status of their husbands. This meant that a US-born woman could lose her citizenship by being married to a Chinese man without citizenship.
Preferences for Spouses Before 1965
Although the Chinese Exclusion Act treated marriage as a basis for exclusion, American immigration policies have historically used marriage as a basis for inclusion. The Emergency Immigration Act of 1921 established a national origins quota by temporarily limiting the annual number of immigrants from any country to 3 percent of the number of persons from that country who had been living in the United States in 1910. The Immigration Act of 1924, also known as the Johnson-Reed Act, made quotas permanent and pushed them back to 2 percent of the number of people from a given country living in the United States in 1890. However, the new immigration law also recognized preference quota status for spouses of US citizens aged twenty-one and older and for immigrants skilled in agriculture, together with their wives and their dependent children under the age of sixteen, as well as for parents of citizens. Citizens, wives and unmarried children under age eighteen could enter outside the quotas, as could people in several other categories.
The Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act, retained the national origin criterion, but it also strengthened the preference system. The first basis was economic, as immigrants with special skills were given first preference. Other preferences, however, rested on the social norm that family relationships enjoy a special status. Parents of US citizens constituted the second preference, spouses and children of resident aliens the third, and other relatives the fourth.
Spouses, usually wives, were also able to enter the United States through special provisions for the marital partners of members of the US armed forces. An estimated 150,000 to 200,000 European women married US soldiers between 1944 and 1950. During the same period of time, 50,000 to 100,000 Asian women married US servicemen. American immigration laws were very restrictive and made it especially difficult for Asians to enter the United States, so on December 28, 1945, the US Congress passed the War Brides Act, which waived most of the immigration requirements for women who had married members of the American armed forces serving overseas. Later, marriages with US soldiers brought significant numbers of spouses into the country from Korea, the Philippines, and Vietnam.
Preferences for Spouses After 1965
Thirteen years after the McCarran-Walter Act, a new amendment to American immigration law pushed preference categories to the forefront and largely removed the national origins restrictions. Under the new system of categories, family reunification became the central principle of American immigration law. Moreover, the unification of spouses became the most important form of family reunification. In addition, spouses of US citizens could be admitted to the United States outside the preference system altogether.
By 1986, the first year for which categories of admission are available in the US Census Bureau’s Yearbook of Immigration Statistics, spouses of residents admitted under the preferences and spouses of citizens together accounted for more than 41 percent of all legal immigrants. Even as overall numbers of immigrants grew in the succeeding years, spouses continued to make up more than one-third of all those admitted. Moreover, spouses of US residents made up the largest category of people permitted to enter the country under any preference, and in most years they constituted the majority of family-sponsored immigrants.
American immigration law has also enabled people from other countries to form marriages that lead to permanent residence. US citizens may petition US Citizenship and Immigration Services (known as Immigration and Naturalization Services before 2002) for K-1 fiancé visas, so that foreign fiancés can enter the country and apply for a marriage license in one of the states.
Because American immigration law so strongly favors marriage as a reason for inclusion, marriages of convenience—those conducted only in order to obtain permanent legal residence—have become a matter of serious concern. The 1986 Immigration Marriage Fraud Amendments amended the Immigration and Nationality Act of 1952 to impose residency requirements and heightened scrutiny and to provide penalties for marriage fraud. In 2019, almost one hundred people were indicted on charges of green card marriage fraud after Immigration and Customs Enforcement (ICE) agents broke up a widespread marriage fraud operation reported to have involved more than one hundred fraudulent marriages in Texas.
Same-Sex Marriage
The rise of same-sex marriage as a social issue at the end of the twentieth century raised questions about whether gay and lesbian US citizens and permanent residents should be eligible for marital immigration benefits for their partners of the same sex. In the case of Adams v. Howerton in 1982, an American citizen named Richard Adams argued, in his home state of Colorado, that his partner, Andrew Sullivan, should be classified as his spouse for immigration purposes. However, US law excluded homosexual immigrants until 1990. In denying Adams his bid for marital immigration rights, a federal circuit court cited as evidence that the US Congress did not intend spousal benefits to extend to same-sex couples. With the 1990 end of exclusion on the basis of same-sex involvement, some observers felt that the legal grounds for denying marital immigration benefits to same-sex partners had been removed. Accordingly, advocates maintained that denying same-sex couples the same immigration opportunities as opposite-sex couples constituted unfair discrimination. Against this, other commentators responded that the opposite-sex couple was the foundation of American social order and that it should receive special recognition and support in national immigration policy.
The recognition of same-sex marriage in some states raised the possibility that debates over marriage and immigration policy could intensify. Historically, what constitutes “marriage” had been defined by individual states, not by the federal government, and states usually recognized marriages conducted in other states. However, while same-sex marriage had been recognized in a few states, a majority of states passed statutes or constitutional amendments during the 1990s and the early twenty-first century defining marriage as limited to unions between two opposite-sex individuals. Moreover, a federal law known as the Defense of Marriage Act (DOMA) of 1996 specified that no state needed to recognize another state marriage between members of the same sex and that the federal government itself now defined marriage as a union of one man and one woman. This legislation made it unlikely that marital immigration benefits would be extended to same-sex partners, even though US immigration policy no longer blocked entry on the basis of homosexuality.
However, in 2013, the US Supreme Court ruled that Section 3 of DOMA restricting the federal definition of marriage as the union between a man and a woman was unconstitutional. This ruling, applicable in states where same-sex marriage was legal at the time, meant that same-sex couples filing visa petitions would be entitled to the same immigration benefits as heterosexual couples. Two years later, a Supreme Court ruling legalized same-sex marriage in all fifty states.
In 2024, president Joseph Biden implemented his Day One immigration reform plan. Under this plan, undocumented spouses of US citizens were afforded protection from deportation in order for families to remain united and were allowed to apply for lawful permanent residence without leaving the country. Potential applicants had to have resided in the United States for ten or more years and be legally married to a U.S. citizen.
Bibliography
Badgett, M. V. Lee. When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage. New York UP, 2009.
Barnes, Robert. "Supreme Court Strikes Down Key Part of Defense of Marriage Act." The Washington Post, 26 June 2013, www.washingtonpost.com/politics/supreme-court/2013/06/26/f0039814-d9ab-11e2-a016-92547bf094cc‗story.html. Accessed 20 May 2019.
Bray, Ilona. Fiancé and Marriage Visas: A Couple’s Guide to U.S. Immigration. 5th ed., Nolo, 2008.
Constable, Nicole. Romance on a Global Stage: Pen Pals, Virtual Ethnography, and “Mail Order” Marriages. U of California P, 2003.
Cott, Nancy F. Public Vows: A History of Marriage and the Nation. Harvard University Press, 2002.
“FACT SHEET: President Biden Announces New Actions to Keep Families Together.” The White House, 18 June 2024, www.whitehouse.gov/briefing-room/statements-releases/2024/06/18/fact-sheet-president-biden-announces-new-actions-to-keep-families-together/. Accessed 4 Sept. 2024.
Jacobo, Julia. "96 People Charged in Texas Marriage Fraud Scheme to Get Green Cards." ABC News, 15 May 2019, abcnews.go.com/US/96-people-charged-texas-marriage-fraud-scheme-green/story?id=63027773. Accessed 20 May 2019.
Shanks, Cheryl. Immigration and the Politics of American Sovereignty, 1880–1990. U of Michigan P, 2001.