This came to my attention when an immigration attorney in Arkansas, Mariana Romero-Collins, wrote last July to ask about a client who had been applying for a green card through her husband, a US citizen. He became abusive and they divorced. She wanted to change the status of her request for residency following the divorce.
The problem was that during the initial interview the USCIS agent had inquired about whether the marriage had been "consummated." This was for the purpose of determining whether it was a bona fide marriage. The answer was no.
As usual, a complicated back story: the husband was in his late fifties and had various medical conditions making sex a challenge.
Also, a pet was involved.
[United States citizen's] dog slept in the bed (which really shocked this Peruvian lady who had never seen a dog sleep in bed with it's owners). I know you might be [a] dog lover and have dogs sleep in bed with you, but that is out of the question for me too.(For the record, me too.)
In the event, Collins-Romero used a Board of Immigration Appeals decision to successfully argue that their marriage, with its initial bout of romance and later squabbles and unhappiness, was bona fide despite no sex. The decision she used is In the Matter of Peterson, Interim Decision #1845 and it was decided in 1968. (Thanks to Dan Kowalski for the link!)
Many practitioners will know that the major criterion for establishing a bona fide marriage is the "intent to have a life together as man and wife," a rule that manages to be simultaneously anachronistic (the asymmetrical man and wife), vague, and tautological (what is living as a man and a wife other than living in a marriage?).
Collins-Romero wrote on Friday of the recent decision: "[W]e had so much evidence about the length of their correspondence by email (3 years) before she came to the U.S., his sending her love letters, pictures
of him having traveled to Peru and stayed with her & her family, etc." During the new interview, "whether or not the marriage was consummated never even came up."
If you want to read more, the USCIS Adjudicator's Field Manual provides revealing insights into this country's marriage laws and intuitions. Based on this and other sources UCLA Professor Juliet Williams has written a terrific paper on the concept of a sham marriage. You can read that here.
UPDATE: evening 1/10/10 Dan Kowalski just forwarded information that if the marriage is by proxy and not in person then sex, or at least the opportunity for sex, is required.
In other words, if the marriage occurs with both parties physically present, phone sex is okay. If it is phone-marriage, sex in person is required. Here are the links he sent: http://www.stripes.com/
UPDATE: 1/12/10 Mariana Collins-Romero sent me an email today: "the IJ terminated proceedings in her case yesterday due to CIS approval of the 751. it was definitely an interesting case and a learning experience."