Married to Two Different Spouses at the Same Time... and Immigration ©


Merrill J. Clark, Esq.

Ugh. Your immigration client/client’s spouse answers “yes” to question 22.d of naturalization form N-400: “Been married to more than one person at
the same time?” or to the same type of question in the adjustment of status process. This article is not about polygamy. It is about the validity, pursuant
to New York law[1] of second marriages with their immigration benefits, which second marriages occurred prior to the termination of the first
marriages. Yes, they were married to two different people at the same time. Thus, is a second marriage valid for immigration purposes when the first
marriage had not yet been terminated? Yes!

The initial, natural response to answering “yes” to the above questions of double marriages is one of dread: that the second marriage with its
immigration benefits is invalid since it occurred prior to the termination of the first marriage. USCIS generally follows this approach[2] , as do some immigration courts in their kneejerk responses without research.

However, as is all too common, what USCIS and immigration courts do and what the applicable law is, in this case New York law, are very, very
different. Thus, do not completely despair that your accidental bigamist client/client’s spouse will result in an USCIS denial. However, you will likely
need to present some legal research.

The courts, including the BIA, have long recognized that marriage law is dictated by state law. See, e.g., Matter of Zeleniak
, 26 I&N Dec. 158, 160 (BIA 2013)(DOMA case) (“The BIA has recognized that marriage law is dictated by state law”); In re Hosseinian, 19 I&N
Dec. 453, 455 (BIA 1987)(“The well-established rule is that it is the function of the state to determine how its residents may enter into the marital
relationship). And “the validity of a marriage for immigration purposes is generally governed by the law of the place of celebration of the marriage.
[Citations deleted]. Where one of the parties to a marriage has a prior divorce, we look to the law of the state where the subsequent marriage was
celebrated to determine whether or not that state would recognize the validity of the divorce”). Id.

New York law has long recognized the validity of second marriages that occurred prior to the termination of the first marriages. See, e.g., Grabois v. Jones, 89 F.3d 97, 100 (2d Cir. 1996)(ERISA case) (“it is also well established New York law that when a court is confronted
with the claim that a formal second marriage is invalid because of the existence of a valid first marriage, a strong presumption of validity attaches to
the second marriage”); Dolan v. Celebrezze, 381 F.2d 231, 237-38 (2d Cir. 1967)(Judge Friendly surveyed New York law regarding the validity of
second marriages); Gomez v. Windows on the World, 23 A.D.3d 967, 804 N.Y.S.2d 849 (3d Dep’t 2005);
Seidel v. Crown Indus., 132 A.D.2d 729

517 N.Y.S.2d 310

(3d Dep't 1987);
Frassetti v. Frassetti, 57 A.D.2d 826

394 N.Y.S.2d 65

(2d Dep't 1977);
In re Bihanskyj, 55 A.D.2d 836

390 N.Y.S.2d 322

(4th Dep't 1976). And the above case law is despite New York statutory law, New York Domestic Relations Law § 6, that seemingly says otherwise: (“A
marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless [two limited exceptions of annulment or

The New York second marriage presumption process is that the second marriage is valid, even if the first marriage had not been terminated when the
second marriage occurred, as long as the first marriage was eventually terminated. Thus, there will be a period of time that the person is married to two
different people at the same time. However, there is no presumption of a valid second marriage if the first marriage has not been terminated. Thus, it is
important the first marriage be terminated to have the correct conversation with USCIS about the immigration benefits of the second marriage.

Despite USCIS’s and some immigration courts’ general practice to not recognize second marriages when the first marriages were not timely
terminated, the BIA nevertheless has addressed this issue and has also recognized the state law of the validity of the second marriages. See, e.g., In re Martinez-Solis, 14 I&N Dec. 93 (BIA 1972)(Panel recognized the legal principle under California law the presumption of
preserving the second marriage. However, there was marriage fraud with the second marriage and the first marriage had not been terminated, thus the second
marriage was not recognized); In re Levine, 13 I&N Dec. 244 (BIA 1969)(California law recognized second marriage).

Thus, when you realize your client/client’s spouse was married twice at the same time, take comfort that state law governs marriage and in New
York, there is a presumption of preserving the second marriage if the first marriage is terminated.

1 (This article only examines New York law. However, with this basic law set forth in this article, one should be able to do some fast research to
see if the double-married client’s/client’s spouse’s state law is similar to New York in its treatment of the validity of second marriages. The
applicable West keynote is “marriage key 40” and in Westlaw you may search for “253k40.” In my brief research, I saw other states that appeared to
recognize the validity of second marriages.)

2 8 C.F.R. § 204.2(c)(2)(ii) states: “Primary evidence of a marital relationship is a marriage certificate issued by civil authorities, and proof of
the termination of all prior marriages, if any, of both the self-petitioner and the abuser.”

About The Author

Merrill Clark is a member of the New York bar and has an immigration practice with an emphasis on family immigration work.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.