One hallmark of the legal system in the United States is the right to privacy. Unfortunately, that “right” does not exist to the extent that you might expect in the immigration context. Below is a discussion of several different ways that your sex life, whether inside or outside your marriage, could impact your immigration case.
Obtaining a Green Card:
Marriage Based Green Card:
One common way to obtain a green card is through marriage. Congress enacted laws to prevent immigrants from obtaining green cards through “sham marriages” (i.e. marrying someone solely for the purpose of obtaining a green card). In order to determine whether a marriage is bona fide or fraudulent, immigration officers may sometimes ask questions about a couple’s sex life or use of birth control. For example, if an officer suspects that a marriage is fraudulent, they may separate the couple and ask questions (including intimate questions) to determine if their answers are consistent. Furthermore, if the marriage is never consummated, that can be seen as evidence that the marriage was entered into for immigration purposes.
Most immigration applications require you to list your children. This include all children, including step-children, adopted children and children born outside of a relationship. Failure to list all of your children, including children born outside of the marriage, could impact your current and future immigration process. This is because immigration may accuse you of fraud or think you are trying to hide something. Furthermore, if either party has children outside of the marriage, it could lead immigration to assume to investigate your case further to determine that your marriage is bona fide.
Marriage by Proxy:
In many cases, it is possible to be married by proxy, which means that the two parties were married without being in each other’s presence. If this happens, the marriage may not be considered valid without proof that it was consummated.
Your Medical Exam:
Anyone who applies for a green card must undergo a medical exam to determine if they have any communicable diseases that could pose a public health risk. In particular, immigration will test for certain sexually transmitted infections, such as syphilis or gonorrhea. If either test comes up positive, you may need to prove you are receiving treatment before your green card can be granted.
A Conditional Green card:
If you were married for less than two years at the time you receive your marriage-based green card, you will receive a “conditional” green card that is only valid for two years. Before it expires, you must renew the green card but providing additional proof of your relationship. Once again, you may be interviewed by an immigration officer, and questions about your sex life within your marriage (as well as extramarital affairs) could theoretically come up.
As you can see, there are times when an applicant’s sexual activity (both within and without the marriage) can be relevant to whether they can obtain or renew a green card, or whether they are even considered legally married under the immigration laws.
Having Been Previously Married to Someone of a Different Sex than Your Current Spouse:
It is not at all uncommon for someone to marry someone of the opposite sex, get divorced, and then marry someone of the same sex (or vice versa). This could happen for any number of reasons, including being bisexual; coming “out” later in life; societal pressures; or the simple fluidity of sex, gender and sexuality. An immigration officer may always ask questions about a previous marriage to determine if either the previous or current marriage is fraudulent. Importantly, the USCIS training manual specifically reminds officers that “it is not uncommon for lesbians or gay men to marry people of the opposite sex in an effort to conform to societal norms.” Consequently, officers should not make any inferences simply because someone in a same sex marriage had previously been in an opposite sex relationship and/or had children. An officer may always ask questions about a previous relationship, but the applicant should be given the opportunity to answer questions about and explain any previous marriage, regardless of the sex of a previous and current spouse.
Please note that this issue can come up at any stage, whether you are applying for a green card or for citizenship.
If you are a lawful permanent resident hoping to become a naturalized U.S. citizen, one of the things you will have to prove is that you are a “person of good moral character.” Unfortunately, there are several ways your sex life could come into play here.
Immigration regulations state that someone who engages in an extramarital affair “tending to destroy an existing marriage” may not have good moral character. The fact that it must “destroy” the marriage is an important qualification. For example, you can still have good moral character if a relationship begins after you are already separated from your spouse. Alternatively, if your spouse consents to your relationship outside of your marriage, or otherwise knows about it and you are still together, that would also likely be fine. However, if a relationship outside of your marriage is a cause of the marriage breaking down, it could lead to a finding of no good moral character and result in your application being denied.
One other aspect of proving “good moral character” is proving that you support all dependents. Importantly, as stated above, it is required to list all biological, step-, and adopted children, even those born outside of a marriage and those who do not live with you. However, proving good moral character requires that you prove that you support all your dependents, including proving that you pay child support or otherwise support children that do not reside with you. For example, you may need to show pay stubs or other bank transfers to show that you are supporting any children who do not live with you. Furthermore, you must prove that you pay any maintenance or alimony that may have been ordered as a result of a divorce. Lastly, it is also required that you pay your taxes each year. For that purpose, it is important that your taxes are done correctly and that you are actually supporting anyone you claim as a dependent.
Engaging in or procuring someone for prostitution is also relevant to someone’s good moral character under our immigration laws. Importantly, this has generally been defined to exclude someone who solicits a prostitute, and focuses more on those who benefit financially from prostitution (i.e. the prostitute and anyone involved recruiting others to engage in prostitution).
Someone who practices polygamy (i.e. having multiple spouses at the same time) will likely be found to not have good moral character, and could also be denied a green card if it is found that their intention upon entering the United States or obtaining their green card is to practice polygamy.
As much as you may assume that all things relating to sex are private, unfortunately, that is not necessarily the case when it comes to applying for a green card or naturalization. If you have any questions about your case, please do not hesitate to contact us at (312) 427-6163 to schedule a consultation to discuss your situation.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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