Immigration Law and the Regulation of Marriage

By Kerry Abrams. Full text here.

This Article argues that much of federal immigration law functions as a form of family law. Although conventional wisdom holds that family law is state law, federal immigration law actually regulates marriages that involve immigrants much more extensively than state family law does, and often unintentionally. This Article maps the architecture of federal immigration regulation through the four stages of marriage: courtship, entry into marriage, the intact marriage, and exit from marriage through divorce. It shows how laws, which appear at first glance to effectuate immigration policy, regulate the creation and dissolution of legally recognized family relations, determine the legal rights and responsibilities of family members, and therefore function as family law.  These laws include immigration provisions of the Violence Against Women Act, the requirement for citizen spouses to sign an affidavit of support in order to sponsor their immigrant spouses, and immigration laws prohibiting marriage fraud. This Article concludes by offering ways to analyze whether Congress is acting within its immigration power when it passes such laws.