… this isn’t actually true. The federal government requires lots of things to prove that a foreigner wishing to qualify for a spousal visa is in a legitimate marriage, but there is actually no requirement to prove that you’re having sex. Shared finances, yes. Shared residence, yes. Tax returns, yes. Proof of a commingled life, yes. Letters of support that you present yourselves as a married couple, yes. Sex tape? No.
(It’s not cynical if you think about it. It is compatible with a fraudulent marriage that the two people could be copulating like rabbits; but it’s less likely if the two are sharing their money.)
This is not a defense of DOMA; people arguing that gay people could always commit immigration fraud to get a green card are making an exceedingly stupid argument. Any marriage would have to be entered into for bonafide reasons to qualify for a green card, i.e., excluding immigration benefits. So the argument has to be that DOMA’s effect on immigration policy is fair, because gay people could always… commit fraud to get around the exclusion.
The Edge of the American West 
21 comments
December 1, 2010 at 1:35 pm
jroth95
Well sure, fraud, but straight fraud, not icky gay fraud, which makes Baby Jesus cry.
I wonder if my household’s finances would meet immigration standards? Separate checking, separate credit cards. I pay the mortgage, she pays the day care…. Perhaps we’re not really married after all.
December 1, 2010 at 2:09 pm
dana
In general, you need to show some kind of comingling. You are probably both on the lease or mortgage, have driver’s licenses at the same house, etc.
what’s weird about the DOMA argument is that it seems to presuppose that het marriages are all very similar, and applied to immigration it’s an especially bizarre claim. And it’s heartbreaking that a gay couple could be married and not be able to immigrate, but a fiancee visa for a woman the man barely knows is comparatively simple to get. ( not easy but possible.)
December 2, 2010 at 5:17 am
Matt Lister
There is no particular thing you have to show to show that a marriage is a “bona fide good-faith marriage”, including co-mingling of finances. That’s usually a very good way to show it, and a competent immigration lawyer would strongly recommend it, but it’s not strictly required. (If you had a kid together and had wedding pictures but had all separate finances and some explanation for it, the marriage would almost certainly be accepted, for example.) But it is true that there’s no requirement to have sex and the immigration officers are not really even supposed to ask about it. In this case the real difficulty would come if somehow the immigration officials knew of the existing same-sex civil union, as that would give them fairly strong grounds to expect that the new marriage wasn’t a real one.
December 2, 2010 at 6:22 am
dana
I believe you have to declare previous marriages.
December 2, 2010 at 6:48 am
Matt Lister
I believe you have to declare previous marriages.
Yes, that’s right. I’m not completely sure how a “civil union” is treated for such cases, but if it’s treated as equivalent to a marriage then the applicants would either have to pretend it didn’t happen and hope not to get find out or get the equivalent of a divorce. There are sometimes complicated rules about how different marriages are treated for immigration purposes.
December 2, 2010 at 6:55 am
dana
You’re right there. I suspect that a civil union would be thought of as equivalent to a marriage if it’s legally recognized in the home country and confers marriage-like benefits. But it’s hard to say.
December 2, 2010 at 7:39 am
insomniac
The (as it then was) INS asked my spouse and I (in separate interviews) what type of toothpaste we both used. Absurd.
And because I kept my maiden name when I married, we were hauled in for a second set of interviews because the act seemed suspicious. I tried to explain that this was not uncommon in academia, where one had a history of scholarship under a certain name. But they just thought we were trying to get around the system.
Mind you, you should have seen the way our Russian friend was treated when she and her spouse came up for interviews.
I was one of those immigrants from a “nice,” rich, English-speaking country.
It seems to me whole process is easy to game, requiring memorization of certain silly details about household living, as well as the actual documentation of shared finances etc. It actually shows how difficult it is to define what a bona fide marriage is, ultimately.
And that’s no bad thing.
December 2, 2010 at 8:13 am
politicalfootball
Continental Airlines also finds you a bit suspicious regarding that name thing, insomniac.
December 2, 2010 at 8:16 am
Matt Lister
What sort of question you get can vary quite a bit. When my wife and I went for our interview I brought a big stack of evidence- financial matters, pictures, affidavits, etc. She’s Russian and didn’t change her name. We got a fairly short, friendly chat with both of us in the same room, no great detail asked, a glance so quick at the documents I brought that there’s no way the immigration officer even really saw what they were, a stamp in her passport, and we were on our way. It’s hard to say why people get different treatment, and no certain way to guess what will happen. My impression is that a lot depends on the immigration officer in question and his or her “professional impressions” on first meeting the people. (There are, of course, red flags, too, but despite the fact that, for example, the local Russian language newspapers in Philadelphia regularly run adds for people hoping to commit marriage fraud, neither my wife being Russian nor her not changing her name led to any more suspicion in our case.)
December 2, 2010 at 10:57 am
dana
The case with which I have the most experience was approved without an interview.
And that’s no bad thing.
Indeed.
December 2, 2010 at 6:16 pm
Susan
So what are bonafide reasons for a marriage?
December 2, 2010 at 9:39 pm
Matt Lister
So what are bonafide reasons for a marriage?
As far as immigration goes, you can get married for any reason you want so long as it’s not _merely_ to get immigration benefits. (It’s fine if that’s one reason, it just can’t be the only one.)
December 3, 2010 at 6:00 am
Susan
But don’t you see that this is where you have gone wrong. The supporters of DOMA (and thereby people who would deny immigration benefits to gay international couples) have defined marriage almost solely as the ability to smash opposite genitalia together. Otherwise they would have to admit that gay relationships are marriage, and there would be no reason to deny the immigration benefits.
December 3, 2010 at 6:13 am
dana
Matt’s right. The government isn’t concerned whether your marriage is ill-advised or going to lead to fifty years of bliss, just about whether it was contracted solely for immigration benefits.
December 3, 2010 at 8:28 am
Matt Lister
…just about whether it was contracted solely for immigration benefits.
I should add that this is important for those who want to work towards fair treatment of same-sex couples in immigration. When I was writing a paper on the subject of same-sex family-based immigration, sometimes people said they worried about it because there would be more fraud.(*) But there’s no reason why same-sex couples can’t be held to, and meet, all the normal sort of standards discussed above. If they do, that’s all that can plausibly be asked of them.
(*)I guess the worry is that people would be more likely to get a phony same-sex marriage and live as roommates. I’m a bit skeptical that that’s true, but if people are willing to co-mingle their finances or whatever, they’ve done as much as I’d be interested in looking into. As to whether the total amount of fraud would go up or not, I think it’s also not too clear- there would be some phony same-sex relationships for immigration purposes, but fewer phony opposite sex ones done by gays and lesbians who can’t get benefits now. And this also seems like an area to not worry all that much about fraud anyway, since giving these benefits to one person doesn’t make them unavailable to others (there’s no cap on immediate relatives) and would only fairly rarely lead to a bad outcome anyway.
December 3, 2010 at 9:04 am
dana
That’s an interesting puzzle. I’m inclined to view the risk of same-sex fraud (read: straight people pretending to be gay and willing to go through the legal marriage) as not really worth worrying about. One has to have a legal marriage contract to get a green card, and I’m skeptical that there’s a lot of people willing to do that.
Or at least I’m skeptical that there’s more straight people willing to declare that they’re gay legally than there are, e.g., people in poor countries willing to commit marriage visa fraud to get here, and we haven’t taken the existence of those fraudsters as a reason to eliminate marriage-based immigration for straight couples.
December 3, 2010 at 9:05 am
dave
It’s one of those areas where law is obliged to make crude judgements about subtle intentions. In England, it’s against the law to fraudulently represent oneself as having supernatural powers for purposes of gain. But if one honestly proclaims a belief in the possession of those powers, one can fleece the audience to one’s heart’s content…
December 3, 2010 at 9:52 am
Susan
Same sex couples very often have all of the documentation that immigration uses to establish whether a not a marriage is phony…except in instances where it is illegal for them to do so (for example, mortgages in the state of Virginia). And yet, if same sex couple produces this same level of proof, they are denied the benefits, because, we should not forget,the number one qualification that trumps all others is that the pair are opposite sex. If the government only cares about whether you are commingling funds and the like to determine that a marriage is valid (and not what you are doing with your genitalia), it should not matter what the sex of the participants is. And yet it does.
December 3, 2010 at 12:16 pm
Liz
The (as it then was) INS asked my spouse and I (in separate interviews) what type of toothpaste we both used. … And because I kept my maiden name when I married, we were hauled in for a second set of interviews…
Wow. What part of the country was this in? And was it a very long time ago? My husband and I hired a lawyer (on the advice of multiple friends with horror stories about long wait times) when we started the green card process, and he told us they didn’t ask questions about things like toothpaste. (I think I specifically asked him about it, since I’d seen the movie Green Card in the 90s.) He didn’t say anything about our different last names.
Our lawyer also told us that there’s no set list of questions they ask, but they’ll tend to question couples more closely if there’s a big difference in age or educational attainment or if the spouses are of different races or religions.
Our interviewer barely glanced at the lease, credit card bills, bank statements, and photos we’d brought. She asked us where we met, how long we were together before marrying, and why we hadn’t filed a joint tax return. Then she put a stamp in my husband’s passport, and that was it.
I wonder if there are regional differences in how interviewers approach applicants. In the metro DC area, where we live, international couples and spouses with different last names aren’t unusual. To think that we might leave something like this dependent on an interviewer’s prejudices or mood on a particular day or the amount of interviews she has to get through is alarming.
December 3, 2010 at 12:26 pm
BobN
While it is true that they don’t ask for proof of sexual activity, just try going through the process with an air of total romantic indifference to each other.
Note: don’t try this unless you’re prepared to move abroad to stay with your spouse.
December 3, 2010 at 12:46 pm
insomniac
Liz:
This was in San Antonio in the nineties. And I’m not kidding about the toothpaste.
The maiden name complicating factor was particularly annoying, as it involved us having to drive back down to SA at relatively short notice and with no clear idea as to what we should bring for our follow-up interviews.
I do think the earlier commentator is right: it depends on where in the country your interview is held (SA is notoriously busy and oversubscribed–at least it was then). The whims of the interviewer are also a huge part of things.
When I did my citizenship stuff here in sleepy New England, it was a breeze, and the interviewer and I had a nice chat afterwards.
Win some lose some.