token_ranger
Registered Users (C)
I was trying to find some solid info about IEAD's and came across this its pretty eye opening and does mention the age difference as an indicator of sham marriages i dont know if i should be worried or not but we do have plenty of evidence we share a life together so it should be fine i hope the last guy we got (when they lost our file) was really nice and was from washington, seattle and was there to help out, i hope we get someone like that again.
21.3 Petition for a Spouse.
(a) Petition By Citizen or LPR for a Spouse. In addition to the general filing and adjudication procedures and issues discussed in Chapter 21.2 of this field manual, this section will discuss matters more specific to the adjudication of an I-130 petition filed by a citizen or LPR on behalf of his or her spouse.
(1) Procedural Concerns Particular to Spousal Petitions.
(A) Concurrent Filing of I-130 and I-485. A petitioner may file an I-130 immigrant visa petition and the beneficiary may file an I-485 adjustment application concurrently. The petition and application are filed at the local office which has jurisdiction over the beneficiary’s place of residence in the United States. (The exception to this is that persons residing in Maryland file the concurrent petition and application through the Vermont Service Center, which forwards them to the Baltimore office after initial processing.) In order to file concurrently, the I-130 petitioner and the I-485 applicant (who is also the I-130 beneficiary) must be able to meet all the requirements of both forms. For example:
• If the beneficiary of the I-130 is subject to section 212(e) of the Act as an exchange visitor who has neither complied with nor obtained a waiver of the 2-year foreign residency requirement, the I-485 cannot be filed. The I-130 can be filed separately at the appropriate service center.
• If the petitioner is an LPR and second preference visa numbers are not “current,” the beneficiary cannot apply for adjustment of status. Again, the I-130 would have to be filed separately at the appropriate service center.
• If the petitioner entered on a K-1 visa and the I-130 petitioner is not the same person who filed the I-129F petition, the alien is prohibited from adjusting status.
(B) Supporting Documents. As with other relative petitions, documentation must be submitted to establish both the standing of the petitioner (evidence of U.S. citizenship or lawful permanent residence) and validity of relationship (evidence of the lawful marriage of the petitioner and beneficiary and of the termination of any and all prior marriages of both parties). In addition, in the case of spousal petitions, the supporting documentation must include ADIT-style photographs of both the petitioner and the beneficiary, a Form G-325A properly completed by the petitioner, and a Form G-325A properly completed by the beneficiary. If the petitioner has failed to provide any of these documents, either:
• Send the petitioner an RFE requesting the missing documentation; or
• If the I-130 was filed concurrently with the beneficiary’s adjustment application, require the petitioner to bring the missing documentation to the interview.
(2) Adjudication Issues. In addition to the more general adjudication issues discussed in subchapter 21.2, pay attention to these concerns pertaining specifically to spousal visa petitions:
(A) Proxy Marriages. Section 101(a)(35) of the Act provides that the term "spouse", "wife", or "husband" does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage has been consummated. (Note: Consummation of a marriage can only occur after the ceremony, there is no such thing as “pre-consummation” of a marriage.)
(B) Validity of a Marriage Celebrated in a Foreign Country. One may normally presume the validity of a marriage upon presentation of a marriage certificate, duly certified by the custodian of the official record. As a general rule, the validity of a marriage is judged by the law of the place of celebration. If the marriage is voidable but no court action to void the marriage has taken place, it will be considered valid for immigration purposes. However, if a marriage is valid in the country where celebrated but considered offensive to public policy of the United States, it will not be recognized as valid for immigration purposes. Plural marriages fall within this category.
(C) Marriage Between Close Relatives. In some foreign countries, and some states in the United States, marriages between close relatives (e.g., cousins) are permitted under certain circumstances. In cases where such marriages do not offend the laws of the state where the parties reside, the marriage will be recognized for immigration purposes.
(D) Fraudulent Marriage Prohibition. Section 204(c) of the Act provides that:
Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws[,] or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
If there is evidence that the beneficiary has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws, the petition must be denied. However, the evidence of the attempt or conspiracy must be contained in the alien's file. (See also 8 CFR 204.2(a)(1)(ii).)
Note: Section 204(c) prohibits the approval of any petition, not just an I-130 petition. Accordingly, if an alien has attempted of conspired to enter into a fraudulent marriage, USCIS would also be barred from approving an I-140 petition filed in his or her behalf.
(E) Freedom to Marry. The parties to a marriage must be legally free to marry. Some people “marry” with a bona fide intent to have a life together as man and wife, but the marriage is not valid because one of the parties was not legally free to marry when the marriage was contracted. Although the I-130 petition asks for the names of all prior spouses, the response to the question is sometimes inaccurate. The reasons given for an inaccurate answer are numerous, but the most common reasons are:
• Desire to conceal prior marriage(s) from spouse;
• Separated for many years and unsure if legally divorced;
• Even though legally divorced, not in possession of the divorce decree and unwilling to take time to get it;
• Not divorced because divorce is not allowed in the person's country of origin (e.g., the Philippines).
(F) Legal Separation vs. Divorce or Annulment. A legal separation is not proof of marital capacity. A final decree of divorce, annulment or death must be presented as proof of termination of a prior marriage. If either party’s prior marriage(s) has/have been terminated by divorce or annulment, the petitioner must establish that the divorce or annulment is valid under the laws of the place where pronounced. It must then be judged by the law of the jurisdiction where the parties to the divorce were actually residing at the time of the divorce.
(G) Legal Separation vs. Separate Cohabitation. You may deny the visa petition in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the visa petition. However, if the parties entered into a valid marriage, have not obtained a legal separation, but simply reside separately, the petition may not be denied merely because of such separate cohabitation. The issue of separate cohabitation is relevant, however, in determining the intent of the parties at the time of the marriage.
(H) Interviewing Petitioner and Spouse. You will often have to question both the petitioner and the beneficiary to determine whether the marriage is bona fide. Remember that the issue to be resolved during the interview is the bona fides of the marriage, not its “viability” (i.e., the probability of the parties remaining married for a long time). USCIS is not in the business of determining (or even speculating about) viability. Although the petitioner and the beneficiary may not appear to have a “viable” marriage, the petition may be approved if the marriage is valid and was not entered into solely for immigration purposes.
On the other hand, a marriage which was contracted solely for immigration purposes does not confer benefits under the Act. A number of factors may raise questions about the intent of the marriage, and therefore necessitate more in depth questioning (see Chapter 15 regarding interviewing techniques), or even a field examination (see Chapter 17) or an investigation (see Chapter 10.5(d)). Some indications that a marriage may have been contracted solely for immigration benefits include:
• Large disparity of age;
• Inability of petitioner and beneficiary to speak each other's language;
• Vast difference in cultural and ethnic background;
• Family and/or friends unaware of the marriage;
• Marriage arranged by a third party;
• Marriage contracted immediately following the beneficiary's apprehension or receipt of notification to depart the United States;
• Discrepancies in statements on questions for which a husband and wife should have common knowledge;
• No cohabitation since marriage;
• Beneficiary is a friend of the family;
• Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.
A sham marriage has been defined by the BIA as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or "good faith", to live together and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for immigration purposes. See Matter of Patel, 19 I&N Dec. 774 (BIA 1988).
(I) Same Sex Marriages. Whether an alleged marriage is valid for purposes of immigration is a question of Federal law, not of State law. In 1996 Congress clarified the Federal law concerning recognition of marriage by enacting the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Pub. L. 104-199 provides a statutory definition of "marriage", and of the concomitant term, "spouse". Section 7 of the Defense of Marriage Act (Pub. L. 104-199) states:
Sec. 7. Definition of ‘marriage’ and ‘spouse.’ In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
For a relationship to qualify as a marriage for purposes of Federal Law, one partner must be a man, and the other a woman. This definition applies to the construction of any Act of Congress and to any Federal regulation. USCIS, therefore, must administer the Immigration and Nationality Act in light of section 7 of Pub. L. 104-199 and deny any relative visa petition (or any other application for an immigration benefit) which is based on a same sex marriage.
(J) Transsexuals. Whether to give legal effect to a sex change is a legislative question. While some states have enacted laws that permit a person who has undergone sex change surgery to legally change the person's sex from one to the other, Congress has not addressed the issue. Defining marriage under immigration law is a question of Federal law, not state law. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1981). Consequently, without legislation from Congress USCIS has no legal basis on which to recognize a change of sex so that a marriage between two persons born of the same sex can be recognized. See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).
(K) Immigration Marriage Fraud Amendments of 1986. In an effort to deter immigration-related marriage fraud, Congress passed the Marriage Fraud Amendments of 1986 on November 10, 1986. This legislation had a major effect on the adjudication of relative petitions, including:
• In many cases, certain conditions had to be met prior to the acceptance or approval of certain petitions on behalf of spouses (see paragraphs (L) and (M).
• Criminal penalties were added or enhanced for individuals who were convicted of having engaged in a fraudulent marriage.
• An alien’s lawful permanent residence is “conditional” if the qualifying marriage occurred less than 2 years prior to the alien’s immigration or adjustment. The provision requires that a conditional resident alien seek removal of the conditional basis of the residence shortly before the second anniversary of the date on which he or she immigrated or adjusted (see Chapter 25 regarding removal of conditions).
(L) Marriage within Five Years of Obtaining LPR Status. Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which the petitioner must submit to meet the clear and convincing standard. If the petitioner falls within this restriction and has not submitted the requisite evidence, send him or her a letter explaining the deficiency and requesting additional evidence. If satisfactory evidence is not submitted within 60 days (or 120 days if the petitioner has requested and been granted additional time), deny the petition.
(M) Marriage During Proceedings. There is a general prohibition against approval of visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Issues concerning determination of commencement and termination of proceedings and exemptions are covered in 8 CFR 245.1(c)(9), except that the burden in visa petition proceedings to establish eligibility for the exemption in 8 CFR 245.1(c)(9)(iii)(F) rests with the petitioner. The petitioner can request an exemption if he or she:
(i) Is able to establish through clear and convincing evidence that:
• the marriage was entered into in good faith; and
• the marriage was not entered into for the purpose of obtaining LPR status for the beneficiary; or
(ii) The alien beneficiary has resided outside the United States for at least two years after the date of the marriage.
Note: If the alien was deported from the United States (or was a “self- deport”), he or she may need permission to reapply before immigrating to the United States, but not before the I-130 may be approved. (See Chapter 43 of this field manual.)
(3) Closing Action. See Chapter 21.2(g) of this field manual.
21.3 Petition for a Spouse.
(a) Petition By Citizen or LPR for a Spouse. In addition to the general filing and adjudication procedures and issues discussed in Chapter 21.2 of this field manual, this section will discuss matters more specific to the adjudication of an I-130 petition filed by a citizen or LPR on behalf of his or her spouse.
(1) Procedural Concerns Particular to Spousal Petitions.
(A) Concurrent Filing of I-130 and I-485. A petitioner may file an I-130 immigrant visa petition and the beneficiary may file an I-485 adjustment application concurrently. The petition and application are filed at the local office which has jurisdiction over the beneficiary’s place of residence in the United States. (The exception to this is that persons residing in Maryland file the concurrent petition and application through the Vermont Service Center, which forwards them to the Baltimore office after initial processing.) In order to file concurrently, the I-130 petitioner and the I-485 applicant (who is also the I-130 beneficiary) must be able to meet all the requirements of both forms. For example:
• If the beneficiary of the I-130 is subject to section 212(e) of the Act as an exchange visitor who has neither complied with nor obtained a waiver of the 2-year foreign residency requirement, the I-485 cannot be filed. The I-130 can be filed separately at the appropriate service center.
• If the petitioner is an LPR and second preference visa numbers are not “current,” the beneficiary cannot apply for adjustment of status. Again, the I-130 would have to be filed separately at the appropriate service center.
• If the petitioner entered on a K-1 visa and the I-130 petitioner is not the same person who filed the I-129F petition, the alien is prohibited from adjusting status.
(B) Supporting Documents. As with other relative petitions, documentation must be submitted to establish both the standing of the petitioner (evidence of U.S. citizenship or lawful permanent residence) and validity of relationship (evidence of the lawful marriage of the petitioner and beneficiary and of the termination of any and all prior marriages of both parties). In addition, in the case of spousal petitions, the supporting documentation must include ADIT-style photographs of both the petitioner and the beneficiary, a Form G-325A properly completed by the petitioner, and a Form G-325A properly completed by the beneficiary. If the petitioner has failed to provide any of these documents, either:
• Send the petitioner an RFE requesting the missing documentation; or
• If the I-130 was filed concurrently with the beneficiary’s adjustment application, require the petitioner to bring the missing documentation to the interview.
(2) Adjudication Issues. In addition to the more general adjudication issues discussed in subchapter 21.2, pay attention to these concerns pertaining specifically to spousal visa petitions:
(A) Proxy Marriages. Section 101(a)(35) of the Act provides that the term "spouse", "wife", or "husband" does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage has been consummated. (Note: Consummation of a marriage can only occur after the ceremony, there is no such thing as “pre-consummation” of a marriage.)
(B) Validity of a Marriage Celebrated in a Foreign Country. One may normally presume the validity of a marriage upon presentation of a marriage certificate, duly certified by the custodian of the official record. As a general rule, the validity of a marriage is judged by the law of the place of celebration. If the marriage is voidable but no court action to void the marriage has taken place, it will be considered valid for immigration purposes. However, if a marriage is valid in the country where celebrated but considered offensive to public policy of the United States, it will not be recognized as valid for immigration purposes. Plural marriages fall within this category.
(C) Marriage Between Close Relatives. In some foreign countries, and some states in the United States, marriages between close relatives (e.g., cousins) are permitted under certain circumstances. In cases where such marriages do not offend the laws of the state where the parties reside, the marriage will be recognized for immigration purposes.
(D) Fraudulent Marriage Prohibition. Section 204(c) of the Act provides that:
Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws[,] or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
If there is evidence that the beneficiary has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws, the petition must be denied. However, the evidence of the attempt or conspiracy must be contained in the alien's file. (See also 8 CFR 204.2(a)(1)(ii).)
Note: Section 204(c) prohibits the approval of any petition, not just an I-130 petition. Accordingly, if an alien has attempted of conspired to enter into a fraudulent marriage, USCIS would also be barred from approving an I-140 petition filed in his or her behalf.
(E) Freedom to Marry. The parties to a marriage must be legally free to marry. Some people “marry” with a bona fide intent to have a life together as man and wife, but the marriage is not valid because one of the parties was not legally free to marry when the marriage was contracted. Although the I-130 petition asks for the names of all prior spouses, the response to the question is sometimes inaccurate. The reasons given for an inaccurate answer are numerous, but the most common reasons are:
• Desire to conceal prior marriage(s) from spouse;
• Separated for many years and unsure if legally divorced;
• Even though legally divorced, not in possession of the divorce decree and unwilling to take time to get it;
• Not divorced because divorce is not allowed in the person's country of origin (e.g., the Philippines).
(F) Legal Separation vs. Divorce or Annulment. A legal separation is not proof of marital capacity. A final decree of divorce, annulment or death must be presented as proof of termination of a prior marriage. If either party’s prior marriage(s) has/have been terminated by divorce or annulment, the petitioner must establish that the divorce or annulment is valid under the laws of the place where pronounced. It must then be judged by the law of the jurisdiction where the parties to the divorce were actually residing at the time of the divorce.
(G) Legal Separation vs. Separate Cohabitation. You may deny the visa petition in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the visa petition. However, if the parties entered into a valid marriage, have not obtained a legal separation, but simply reside separately, the petition may not be denied merely because of such separate cohabitation. The issue of separate cohabitation is relevant, however, in determining the intent of the parties at the time of the marriage.
(H) Interviewing Petitioner and Spouse. You will often have to question both the petitioner and the beneficiary to determine whether the marriage is bona fide. Remember that the issue to be resolved during the interview is the bona fides of the marriage, not its “viability” (i.e., the probability of the parties remaining married for a long time). USCIS is not in the business of determining (or even speculating about) viability. Although the petitioner and the beneficiary may not appear to have a “viable” marriage, the petition may be approved if the marriage is valid and was not entered into solely for immigration purposes.
On the other hand, a marriage which was contracted solely for immigration purposes does not confer benefits under the Act. A number of factors may raise questions about the intent of the marriage, and therefore necessitate more in depth questioning (see Chapter 15 regarding interviewing techniques), or even a field examination (see Chapter 17) or an investigation (see Chapter 10.5(d)). Some indications that a marriage may have been contracted solely for immigration benefits include:
• Large disparity of age;
• Inability of petitioner and beneficiary to speak each other's language;
• Vast difference in cultural and ethnic background;
• Family and/or friends unaware of the marriage;
• Marriage arranged by a third party;
• Marriage contracted immediately following the beneficiary's apprehension or receipt of notification to depart the United States;
• Discrepancies in statements on questions for which a husband and wife should have common knowledge;
• No cohabitation since marriage;
• Beneficiary is a friend of the family;
• Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.
A sham marriage has been defined by the BIA as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or "good faith", to live together and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for immigration purposes. See Matter of Patel, 19 I&N Dec. 774 (BIA 1988).
(I) Same Sex Marriages. Whether an alleged marriage is valid for purposes of immigration is a question of Federal law, not of State law. In 1996 Congress clarified the Federal law concerning recognition of marriage by enacting the Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996). Pub. L. 104-199 provides a statutory definition of "marriage", and of the concomitant term, "spouse". Section 7 of the Defense of Marriage Act (Pub. L. 104-199) states:
Sec. 7. Definition of ‘marriage’ and ‘spouse.’ In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.
For a relationship to qualify as a marriage for purposes of Federal Law, one partner must be a man, and the other a woman. This definition applies to the construction of any Act of Congress and to any Federal regulation. USCIS, therefore, must administer the Immigration and Nationality Act in light of section 7 of Pub. L. 104-199 and deny any relative visa petition (or any other application for an immigration benefit) which is based on a same sex marriage.
(J) Transsexuals. Whether to give legal effect to a sex change is a legislative question. While some states have enacted laws that permit a person who has undergone sex change surgery to legally change the person's sex from one to the other, Congress has not addressed the issue. Defining marriage under immigration law is a question of Federal law, not state law. Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1981). Consequently, without legislation from Congress USCIS has no legal basis on which to recognize a change of sex so that a marriage between two persons born of the same sex can be recognized. See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996).
(K) Immigration Marriage Fraud Amendments of 1986. In an effort to deter immigration-related marriage fraud, Congress passed the Marriage Fraud Amendments of 1986 on November 10, 1986. This legislation had a major effect on the adjudication of relative petitions, including:
• In many cases, certain conditions had to be met prior to the acceptance or approval of certain petitions on behalf of spouses (see paragraphs (L) and (M).
• Criminal penalties were added or enhanced for individuals who were convicted of having engaged in a fraudulent marriage.
• An alien’s lawful permanent residence is “conditional” if the qualifying marriage occurred less than 2 years prior to the alien’s immigration or adjustment. The provision requires that a conditional resident alien seek removal of the conditional basis of the residence shortly before the second anniversary of the date on which he or she immigrated or adjusted (see Chapter 25 regarding removal of conditions).
(L) Marriage within Five Years of Obtaining LPR Status. Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which the petitioner must submit to meet the clear and convincing standard. If the petitioner falls within this restriction and has not submitted the requisite evidence, send him or her a letter explaining the deficiency and requesting additional evidence. If satisfactory evidence is not submitted within 60 days (or 120 days if the petitioner has requested and been granted additional time), deny the petition.
(M) Marriage During Proceedings. There is a general prohibition against approval of visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Issues concerning determination of commencement and termination of proceedings and exemptions are covered in 8 CFR 245.1(c)(9), except that the burden in visa petition proceedings to establish eligibility for the exemption in 8 CFR 245.1(c)(9)(iii)(F) rests with the petitioner. The petitioner can request an exemption if he or she:
(i) Is able to establish through clear and convincing evidence that:
• the marriage was entered into in good faith; and
• the marriage was not entered into for the purpose of obtaining LPR status for the beneficiary; or
(ii) The alien beneficiary has resided outside the United States for at least two years after the date of the marriage.
Note: If the alien was deported from the United States (or was a “self- deport”), he or she may need permission to reapply before immigrating to the United States, but not before the I-130 may be approved. (See Chapter 43 of this field manual.)
(3) Closing Action. See Chapter 21.2(g) of this field manual.