Commentary

100 Years of Love in the Time of COVID

By Kathleen Gasparian

Kathleen Gasparian is the founding partner of Gasparian Spivey Immigration in New Orleans. She currently serves on the boards for the New Orleans Chapter of the FBA, the Louisiana Language Access Coalition, and the Louisiana Immigration Working Group. She is also an adjunct professor of immigration law at Loyola University in New Orleans. She has been recognized by Gambit, New Orleans Magazine, Super Lawyers, and City Business for her expertise as an immigration attorney. Our culture is saturated with love and marriage. The wedding industry is valued in the mind-boggling billions, and viral romantic proposals (from prom to marriage) are everywhere online. Streaming channels are dedicated not only to romance or romantic comedies, but to historical romances, paranormal romances, and Christmas romances. Immigration law is not immune from the heady rush of romance or the devasting impact of heartbreak. In fact, the formula of love plus immigration almost always creates tension and crisis worthy of Romeo and Juliet or any episode of Bridgerton.

Family unification has been a significant force in immigration law since 1965.1 Under the current law, family relationships, including marriage, provide pathways for permanent residence2 in the United States. Waivers for grounds of inadmissibility, protection from removal, and forgiveness for certain immigration violations or missteps may be available through family relationships as well.

The majority of individuals obtaining permanent residence in the United States each year do so through family-based immigration. The process begins with the filing of a visa petition with the U.S. Citizenship and Immigration Service (USCIS) by a U.S. citizen or lawful permanent resident for a closely related family member. The foreign national beneficiary may seek an immigrant visa at a U.S. Department of State consular office after the petition is approved or can apply to adjust status if already present in the United States and eligible under the law. The timing of the application is limited by a number of factors, most notably the availability of immigrant preferences. For many family members, a cap or quota limits the number of foreign nationals that can emigrate to the United States from a given country within a fiscal year, and the line in some countries can be decades long.

The largest category of new permanent residents every year is the immediate relatives of U.S. citizens,3 which includes spouses, unmarried children under the age of 21, parents of U.S. citizens (when the citizen is over 21), and certain widows or widowers of U.S. citizens.4 Such individuals are not subject to numerical limits and receive preferential treatment under the law.

Those seeking to change the immigration status of a spouse or prospective spouse apply for a K-1 visa, as anyone who has watched the TLC show 90 Day Fiancé and its multiple spinoffs knows. The K-1 visa is a category of permission specifically to enter the United States to marry or decide to marry, and in most cases, the couple must have met in person before the U.S. citizen files a petition with USCIS. If approved, the matter is then sent to a consular office for an interview and security screening. The foreign fiancé then enters the United States, and the couple has 90 days to wed. If they do, then the foreign fiancé can apply for lawful permanent residence in the United States.

For many, obtaining a nonimmigrant visa that grants them temporary permission to enter the United States to visit family is a serious hurdle. Immigration law presumes that foreign nationals are entering the United States to remain and places a high burden on applicants to show an intent to return home. One who might intend to marry cannot meet such a burden but may find a way to enter the United States through a K-1 visa. However, as every episode of the show tells us (over and over), this is not an easy journey.

While the Bridgerton siblings have a reputation for making a love match in marriage, this Netflix series that follows them through Regency-era London emphasizes that love and marriage are not synonymous. The reasons one might enter marriage or desire the legal consequences of such a contract include many motives that are not love. The series also reflects the sentiment that true love and a great marriage are both worth overcoming extensive challenges. In this dynamic, life imitates art. Not all marriages are motivated by love, and immigration law forces a couple to demonstrate that their marriage is more than a pretext to gain legal status in the United States. They must show evidence of a genuine relationship and navigate the complexities of filing with government agencies. They must triumph over cross-cultural miscommunications and must endure lengthy processing times and delays.

A law that prioritizes family must also define it, and an area of law that crosses cultures and continents must also place those definitions within the context of the United States. Most family relationships are defined by the Immigration and Nationality Act, which includes concepts of legitimation and age limitations that may seem at times arcane and at times progressive. For example, for a marriage to serve as the basis

for a visa petition, it or the intended marriage must be legally valid and recognized in the place where it was created. It cannot violate federal or state public policy in the U.S. state where the couple will reside. Polygamous marriages, child marriages, and proxy marriages, unless later consummated, are not recognized by immigration law.

Marriage does not have a universal definition. In some countries and some U.S. states, marriages between close relatives are permitted under certain circumstances; in some countries and U.S. states, those marriages are not lawful. Such a couple would need to reside or intend to reside in a state where the marriage does not offend its laws for the marriage to be recognized for immigration purposes. Same-sex marriage is currently recognized by U.S. immigration law and is a lawful basis for immigration benefits based on marriage.5 In order to be valid for immigration purposes, a same-sex marriage must meet all of the same requirements as an opposite-sex marriage, and current case law holds that a same-sex marriage that is legally valid in the jurisdiction in which it was celebrated is valid for immigration purposes, regardless of whether the jurisdiction in which the parties reside recognizes same-sex marriage.6 The recent Supreme Court decision of Dobbs v. Jackson has raised concerns about the future of this recognition.

I am not a regular watcher of 90 Day Fiancé, but I am not unfamiliar with the entertainment formula of the show. I find pleasure in the challenge of determining which couples are real relationships, with a chance at “happily ever after,” and which couples are a scam in process. In real life, green card marriages are riskier than people realize because fraudulent marriages carry severe immigration and criminal penalties. Petitions that raise red flags and prompt more in-depth questioning by a USCIS or State Department officer frequently involve large age gaps, vast cultural differences, and/or a lack of shared languages.

These factors are pedestrian proxies for a more interesting and esoteric question: What makes a marriage? For immigration law purposes, the test is not of love or sex but of an intent to build a life together.7 Accepted evidence of such intent has skipped modern feminist theory and focuses on shared finances and financial obligations. If romance exists, it is reduced to quantifiable texts, calls, and photos.

That barometer sounds bureaucratic, but romance is quantifiable, at least according to the author guidelines of Harlequin, one of the leading publishers of romance novels.8 Each novel type has specific rules, with some even designating on which page readers get the first kiss. Overcoming obstacles or challenges sells the romance and makes the union at the end even sweeter. 90 Day Fiancé and the immigration process mirror such novels. A challenge tests the couple’s commitment, and the result is a triumphant union. Petitioners face the complexity of the filings with USCIS and the State Department, the evidence gathering, and what feels like endless documentation. Couples must overcome unfamiliar cultural norms as well as language and religion differences, but the greatest obstacle to love and marriage in immigration is time.

For a couple in love or for a family separated by hundreds of miles, any amount of time is too long. Immigration processing delays are currently at an all-time high. In 2019, a group of 38 federal senators sent letters to USCIS seeking an accounting of what was then called crisis-level delays in the processing of petitions, and the pandemic did no favors to USCIS processing times. USCIS halted adjudications of certain cases, faced a dip in revenue, and dealt with other issues that created not a snowball effect of delays but an avalanche.9 Digging out has been incredibly slow and painful for families seeking unification. To add salt to the wound, COVID saw extensive restrictions on international travel, both inbound and outbound. For K-1 visa seekers, additional delays are afoot, as many U.S. embassies still have limited appointments, and extensive delays are everywhere.

Those delays can test a relationship in ways that do not make for good television. Our inner romantics are not satisfied by engaged couples that drift apart for a reason other than character issues or interfering plots. We want a story, not governmentally mandated distance, particularly when the delay is the product of inefficiency and not another intentional marital stress test.

Because we as a culture enjoy love and justice, we want the right results, whether on 90 Day Fiancé or when K-1 visa petitioners are evaluated by USCIS. We want real relationships to be validated and fraudulent ones exposed, and we hope that the tools used to parse out this distinction are up to the task. The nagging doubt is that these tools do not and cannot account for magic—for the intangible and often improbable bond between two people that is a staple of movies on the Hallmark Channel. Adjudicators focus on the relationship’s past and the aspects of life that can be documented and often quantified. But what about the future and the moment when a person suddenly sees someone differently and thinks that the new feeling might be love? There is no way to know if or when such a corner will be turned.

The immigration lawyer in me wants better tools to more precisely understand the subtleties of petitioners’ relationships, but it reassures my inner romantic that there is something about marriages that cannot be ascertained by a questionnaire or interview. It is reassuring to have a reason to believe in magic. 

Endnotes

1The Immigration and Nationality Act of 1965, PL 89-236, 79 Stat. 911, prioritized immigration status for families. 2Lawful permanent residents are foreign nationals who have been granted the right to reside permanently in the United States. In the vernacular, such individuals are referred to as immigrants, permanent residents, and/or green card holders. 3Irene Gibson, Off. Of Immigr. Stat., U.s. Dep't Of Homeland Sec., Fiscal Year 2021 U.s. Lawful Permanent Residents Annual Flow Report (2021), https://www.dhs.gov/sites/default/ files/2022-07/2202_0405_plcy_lawful_permanent_residents_ fy2021_0.pdf. 4Preference categories, meaning those subject to quotas, include a U.S. citizen’s unmarried sons and daughters (age 21 and older), spouse and children of a lawful permanent resident, married children of U.S. citizens, and brothers and sisters of U.S. citizens. 5In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) (1 U.S.C. § 7), which previously had barred recognition of same-sex marriages for Federal purposes, is unconstitutional. 6See Matter of Zeleniak, 26 I. & N. Dec. 158 (B.I.A. 2013). 7In re Soriano, 19 I. & N. Dec. 764, 765 (B.I.A. 1988). 8Harlequin Enters., ULC, Write for Harlequin, https://harlequin. submittable.com/submit (last visited October 7, 2022). 9Citizenship And Immigr. Servs. Ombudsman, U.s. Dep't Of Homeland Sec., Annual Report 2022 (2022), https://www.dhs. gov/sites/default/files/2022-07/2022%20CIS%20 Ombudsman%20 Report_verified_medium_0.pdf. "This article was written and sent to press prior to the resolution of The Respect for Marriage Act."