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Must the marriage be consummated?
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Posted On: September 15, 2007
Whether a marriage is considered a sham(“fake”, i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen resfuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.

In Matter of M, 7 I & N Dec. 601 (BIA Nov 1957)(in deportation proceedings, the immigrant was found to not have commited marriage fraud even though the marriage was never consummated because he had tried to consummate the marriage and his wife refused and she testified that the immigrant did seek to have sexual intercourse with her more than once but that she refused because she had become interested in another man).

Special rule for proxy marriages: If spouses not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35);

Before filing for any immigrant visa petition based ona marriage that has not been consummated, an immigrant should always speak to at least one competent immigration attorney about the specific facts of their case, especially since this is a complicated area that can turn on the facts.
Attorney Heather L. Poole practices exclusively in the area of U.S. family-based immigration law and citizenship law. Heather is a nationally-published immigration author, frequent lecturer on immigration issues, and member & officer of the American Immigration Lawyers Association’s Southern California Chapter. For more information about Heather and the services offered, visit www.humanrightsattorney.com

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spaulmiller December 29, 2008 at 4:50 pm

How long after marriage does a non-citizen receive his/her green card? A friend of mine is considering marrying a Malaysian man for the purpose of obtaining citizenship for him; can you detail how this could effect her adversely on a day-to-day basis, as well as in the long run?

Anonymous April 21, 2009 at 12:07 am

Hi i jst want to know what are the possible rights of a wife if you’re married to an american citizen. We were married last may 2007 on a civil and church wedding in the Philippines. After we got married he flew back to the US. He filed for a CR1 visa and last november 2008 i had my interview at the manila embassy.. During the interview teh consul asked my about my husband divorces ( 3 ) since my husband dont want to talk about his past i cant answer the question my husband fault is when he applied for the legal capacity to marry he only mention one divorce and when the embassy checked his files he has two divorce paper missing and we were having a problem with the paper work for he cant provide his divorce decree.. Right now our marriage is sufferring for my husband is starting to have an affair there. Is it possible for him to get married there even he’s still married here in phils..i dont know where to seek for help and advice with my situation and what are the possible way to visit him. thank you and god bless.

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