Common law marriage has become less and less “common” in modern times. However, in some foreign countries, it is a legally recognized form of marriage. Does this legality transfer over to the United States?

Take Jack and Susan’s case. Jack and Susan grew up in the countryside of Thailand. They had been neighbors since childhood, but spent their elementary school days as enemies. Assigned to a desk right behind Susan, the boy Jack could not resist slipping a spider down the back of her dress or pulling on her pigtails. This relationship remained static until one fateful day in August, when they were both sixteen. Jack hid along the trail home and planned on jumping out at Susan and scaring her. His plan, however, worked all too well: he scared Susan so much; she fell backwards into a shallow creek. “Next thing I knew” said Jack, “I was offering her my jacket and carrying her home”. After that, Jack and Susan were an inseparable couple.

Since both Jack and Susan were from a small farming community in the countryside, neither had much money nor took “big city” ways very seriously. When they were both 22, Jack decided it was time and followed the traditional village ritual of asking for Susan’s hand in marriage. Susan’s parents agreed, and a small village party was held. Neither bothered with official or legal paperwork.

Jack and Susan moved into an apartment in the nearby city of Bangkok, where Jack attended college. Jack’s talent in physics caught the attention of his university’s dean, who helped arrange a scholarship for him to continue his education in the United States. Jack was accepted as a Master’s candidate at Baylor University in Waco, Texas. The scholarship money was only enough to cover Jack’s expenses, so Jack left first, promising to bring Susan over as soon as they had enough money. Things were much expensive in the United States then Jack had expected, and he could not afford to visit home, much less bring Susan over. He talked and emailed with Susan every single day, just waiting for graduation. Under such motivation, Jack received his Master’s degree in only one year, and immediately was offered a job with Sandia National Laboratories in Albuquerque, New Mexico. He gratefully accepted, and the company sponsored his PERM application under the EB-2 category. Upon his approval, he began to look into ways he could bring Susan over. Jack contacted our offices to see if he could bring Susan to the United States as his wife under an H-4 visa.

Our attorney told Jack that current immigration law offered immigration benefits to spouses under common law marriage only if

1. The jurisdiction in which the common law marriage was formed legally recognizes the common law marriage;

And, MORE IMPORTANTLY,

2. The jurisdiction that recognizes such common law marriage requires a FORMAL court proceeding to terminate the common law marriage.

Thus, for Jack and Susan’s marriage to be accepted by the USCIS, their marriage must be accepted as legal in their home country of Thailand. Moreover, if, for some reason, Jack and Susan want to terminate their marriage, a formal court proceeding must be required in their home country. The USCIS takes into consideration both the home country’s recognition of common law marriage and how the said marriage can be dissolved when determining legality. For the USCIS, there can be no “common law divorce” for a legalized marriage.

Within the United States itself, however, it is not easy to get a common law marriage. Common law marriages are only granted in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia. This means that a citizen or permanent resident with an alien “spouse” under common law marriage can only claim spousal immigration benefits if the marriage relationship took place in the preceding states. Then, according to the “Full Faith and Credit” clause of the U.S. Constitution, all other states must recognize the marriage. This is the same principle that keeps a legal marriage contracted in Ohio also binding in Texas. It is important to note, however, that the common law marriage has to take place in a state where common law marriage is allowed before other states will accept that marriage.

Jack was not sure about marriage law in his home country. He told our attorney that he needed to let Susan check it. We wish the couple good luck and hope that their American dream comes true soon.