\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 21 Family-based Petitions and Applications. \ 21.3 Petition for a Spouse.
21.3 Petition for a Spouse.
Petition By Citizen or LPR for a Spouse
In addition to the general filing and adjudication procedures and issues discussed in
, 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.
Procedural Concerns Particular to Spousal Petitions
Concurrent Filing of I-130 and I-485
A petitioner may file a Form I-130, Petition for Alien Relative, and the beneficiary may file a Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently in certain circumstances. In order to file concurrently, the Form I-130 petitioner and the Form I-485 applicant (who is also the Form I-130 beneficiary) must, at the time of filing, meet all the eligibility requirements of both forms. For example:
If the beneficiary of the Form I-130 is subject to INA 212(e) as an exchange visitor who has neither complied with nor obtained a waiver of the 2-year foreign residency requirement, the Form I-485 cannot be filed concurrently. The Form I-130 can be filed separately.
If the petitioner is an LPR and second preference visa numbers are not “current,” i.e. available, the beneficiary cannot concurrently file Form I-485. Again, the Form I-130 would have to be filed separately.
If the Form I-130 beneficiary entered on a K nonimmigrant visa and the Form I-130 petitioner is not the same person who filed the Form I-129F on the beneficiary’s behalf, then the beneficiary is prohibited from adjusting status under INA 245(a). See INA 245(d). A Form I-130 may be filed by a different petitioner, but the beneficiary must consular process or be readmitted in a different non-immigrant classification. (Note: There are also limited exceptions available if the applicant is adjusting in the United States based on T nonimmigrant status (for victims of a severe form of trafficking in persons) or U nonimmigrant status (for victims of qualifying criminal activity).)
Family-based Form I-485s generally require the Form I-130 petitioner to be the sponsor and executor of Form I-864, Affidavit of Support under INA 213A. The Form I-864 must generally be submitted with the beneficiary’s Form I-485. INA 213A. While there is no age requirement for a petitioner filing a spousal Form I-130, a Form I-130 petitioner cannot execute a Form I-864 unless he or she is at least 18 years old. INA 213A(f)(1)(B) and (f)(5). In cases where a joint sponsor is used to meet the income requirements, the joint sponsor must also be at least 18 years of age. In cases where the petitioning spouse is deceased and a substitute sponsor is needed, the substitute sponsor that executes a Form I-864 must also be at least 18 years of age. INA 213A(f)(1)(B) and (f)(5).
If the Form I-130 petitioner is under age 18, he/she cannot execute a Form I-864. A joint sponsor 18 years of age or older cannot remedy an underage sponsor’s ineligibility to execute a Form I-864, as the purpose of a joint sponsor is only to cure the petitioner’s inability to meet the income requirements. Therefore, if the Form I-130 petitioner cannot execute a Form I-864 due to being under the age of 18, the beneficiary will be inadmissible under INA 212(a)(4) based on his or her failure to submit a sufficient Form I-864 as required. The beneficiary will be ineligible to file for adjustment of status based on that underlying Form I-130 until the Form I-130 petitioner turns 18.
For more information about Affidavits of Support, see AFM Chapter 20.5; or the Policy Manual Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section D, Determine Admissibility, Subsection 2, Affidavit of Support Under Section 213A of the Act (Form I-864) [7 USCIS-PM A.6(D)(2)].
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. 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.
In addition to the more general adjudication issues discussed in subchapter 21.2, pay particular attention to these concerns pertaining specifically to spousal visa petitions:
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 together at the ceremony, unless the marriage has been consummated afterwards. (Note: Consummation of a marriage can only occur after the ceremony, there is no such thing as “pre-consummation” of a marriage.)
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.
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) Marriage Involving Minor(s).
There are no statutory minimum age requirements for the petitioner or beneficiary of a Form I-130 spousal petition. In some U.S. states and in some foreign countries, marriage involving a minor is generally not allowed but may be permitted under certain circumstances, including where there is parental consent, a judicial order, emancipation of the minor, pregnancy of the minor, etc. (Note: Although the INA definition of “child” includes being under 21 years of age, in family law, a “minor” in a marriage context is generally defined as an individual under 18 years of age.)
However, a marriage involving a minor warrants special attention. Officers should evaluate all marriages involving a minor for evidence that: 1) the marriage was lawful in the place it was celebrated and on the date it was celebrated, 2) if the couple resides outside the place of celebration, the marriage is recognized as valid in the U.S. state where the couple currently resides or will presumably reside and does not violate the state of residence’s public policy, and 3) the marriage is bona fide, and the minor(s) provided full, free, and informed consent to enter into the marriage.
Note: U.S. state laws vary in setting minimum age requirements to marry and exceptions that may permit minors to marry. Some U.S. states do not have an age floor below which a minor cannot marry if an exception applies. However, there may still be public policy considerations that would result in the domicile refusing to confer reciprocity to an out of state marriage involving a minor.
Note: The officer can generally rely upon a marriage certificate, court decree or parental consent as probative evidence of the minor’s consent. However, if the case presents forced marriage issues, please consult with headquarters and/or your regional office through your normal supervisory chain.
(i) Legality of Marriage in the Place of Celebration.
Where the record does not establish the legality of the marriage, officers should issue an RFE for evidence that the marriage was lawful in the place where it was celebrated and on the date it was celebrated. The petitioner bears the burden of proof [See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966)] and must provide evidence that the minor(s) met the legal minimum age requirements in the place of celebration or that the minor(s) qualified for an exception to the general age requirements. If you have questions about the legality of a marriage involving a minor, please contact local USCIS counsel.
Note: Officers retain discretion to deny a petition without first issuing an RFE or NOID when required initial evidence was not submitted or the evidence of record fails to establish eligibility. See AFM 10.5(a) and AFM 10.5(b).
Note: Regardless of the age of the petitioner and beneficiary at the time the I-130 petition is adjudicated, officers should ensure that any marriage that involved a minor was valid at the time it was entered into. Matter of P, 4 I&N Dec. 610 (Decided by the AG March 18, 1952).
(ii) Validity of the Marriage in Petitioner and Beneficiary’s State of Residence or Presumed State of Residence and State Public Policy Considerations.
If the marriage involving a minor was lawfully entered into in the place where it was celebrated, whether domestically or overseas, but the couple now lives in or can be expected to live in a different place at the time of adjudication, officers should determine whether the marriage is or will be recognized as valid in the petitioner’s current or presumed state of residence. (Note: A marriage complying with all the requirements of the state of celebration might nevertheless be deemed invalid if it is invalid under the laws of a state where one of the parties is domiciled at the time of the marriage and where both parties intend to make their home afterward, or if it violates a strong public policy of the state of domicile. See Matter of Zappia, 12 I. & N. Dec. 439 (BIA 1967); Matter of Da Silva, 15 I. & N. Dec. 778, 779 (BIA 1976).)
Where the beneficiary resides abroad, unless otherwise indicated or known to the officer, officers should presume that the couple will reside in the petitioner’s state of residence [See Matter of Manjoukis, 13 I&N Dec. 705 (BIA 1971)]. The officer should consult with local USCIS counsel for assistance in determining the validity of the marriage or considering whether to issue an RFE for the petitioner to establish whether the marriage is or will be recognized as valid in the petitioner’s current or presumed state of residence. For example, the petitioner may provide evidence that the state Attorney General’s Office recognizes the marriage involving a minor, which was celebrated out of state. [Note: Officers retain discretion to deny the petition without first issuing an RFE or NOID when required initial evidence was not submitted or the evidence of record fails to establish eligibility. See AFM 10.5(a) and AFM 10.5(b).]
Where it is unclear whether the marriage is or will be recognized as valid outside the place of celebration, officers should also determine whether the marriage violates the public policy of the new place of residence. A state’s public policy is often reflected in specific criminal statutes that penalize undesirable or offensive conduct. Officers should look at the state’s criminal statutes or consult with local counsel to determine whether the marriage is contrary to the state’s public policy. A marriage involving a minor may be legal in the place of celebration but void under the state law of the minor’s residence as contrary to state public policy. Conversely, state law may prohibit the marriage of a person under age 16, but may recognize as valid an out of state marriage of a resident under age 16 [See Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976)]. The assessment as to whether a marriage violates state public policy is a case-by-case determination and involves the facts surrounding the parties, the marriage, and U.S. state law. Officers should contact local counsel if it appears that the petitioner has not met his or her burden of establishing that the marriage would not violate the public policy of the state of residence despite being legal in the place of celebration. (Note: Some states will not recognize a marriage as valid if celebrated outside the state because the parties intended to evade the marriage restrictions in that state. These are generally referred to as ‘evasion laws’.)
(iii) Bona Fides of the Marriage, Including Forced Marriage Considerations.
Officers must also consider the bona fides of the marriage and all other eligibility requirements as they evaluate a marriage involving a minor. A marriage cannot be considered bona fide if it was entered into for the sole purpose of evading U.S. immigration law. See Matter of Laureano, 19 I&N Dec. 1 (BIA 1983).
A marriage that was entered into without the consent of one or both parties is not considered bona fide for immigration purposes. Generally, an officer may rely upon a marriage certificate, court decree, or parental consent as probative evidence of the minor’s consent unless the case involves forced marriage indicators, such as an affidavit from the victim or a communication from Department of State (Note: Instances of forced marriage are almost always self-identified). Forced marriage is a marriage entered into without the full, free, and informed consent of one or both parties to the marriage, regardless of age. (Note: For additional information, please see the USCIS Forced Marriage webpage, at https://www.uscis.gov/humanitarian/forced-marriage.) Forced marriage should not be confused with the cultural practice of arranged marriage, where families may be involved in selecting a partner. USCIS will consider any evidence that a forced marriage exists in its determination of whether the marriage is bona fide. If you have reason to believe that the marriage underlying an I-130 spousal petition may have been forced, please consult with headquarters and/or your regional office through your normal supervisory chain.
If the marriage involving a minor: (1) was legal in the place of celebration; (2) is recognized as valid in the couple’s current or presumed state of residence and there are no state public policy concerns; (3) is bona fide and there are no indications of a forced marriage; and all other eligibility requirements have been met, then officers must approve a Form I-130 spousal petition involving the lawful marriage of a minor.
Note: While there is no minimum age associated with being party to a Form I-130 spousal petition, any sponsor executing Form I-864 (including the Form I-130 petitioner, any joint sponsor, and/or a substitute sponsor) must be at least 18 years of age at the time the Form I-864 is executed. The Form I-864 must generally be submitted with the beneficiary’s Form I-485. For more information about Affidavit of Support Considerations, AFM Chapter 20.5; AFM Chapter 21.3(a)(1)(A); and Policy Manual Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section D, Determine Admissibility, Subsection 2, Affidavit of Support Under Section 213A of the Act (Form I-864) [7 USCIS-PM A.6(D)(2)].
(iv) Interview Guidelines for Form I-130 Spousal Petitions Involving a Minor.
USCIS has the authority to interview any petitioner or beneficiary, including a minor. See 8 CFR 103.2(b)(7) and 8 CFR 103.2(b)(9). While the eligibility of a spousal relationship for immigration purposes is generally assessed in person by USCIS when the alien spouse applies to adjust status or by Department of State when the alien spouse applies for an Immigrant Visa, USCIS has determined that Form I-130 spousal petitions involving a minor party warrant special consideration due to the possible vulnerabilities associated with marriage involving minor(s).
To better examine the eligibility of the spousal relationship for immigration purposes, service center officers must refer the following standalone Form I-130 spousal petitions for interview when the case appears approvable under Section D (i) – (iii):
1. All Form I-130 spousal petitions in which the petitioner or the beneficiary is less than 16 years of age; and
2. All Form I-130 spousal petitions in which the petitioner or the beneficiary is 16 or 17 years of age and there are 10 years or more difference between the ages of the spouses.
USCIS may interview either party to an I-130 spousal petition (petitioner or beneficiary), including minors and adults. The interview of the Form I-130 spousal petitioner and/or beneficiary should follow the same procedures as the interviews USCIS already conducts during the Form I-485 spousal adjustments. Generally, officers should ask the usual questions to evaluate the relationship for immigration purposes, while remaining aware of the unique nature of interviewing minors. Interviews of minors must be conducted with sensitivity and may warrant special considerations, including determining whether a trusted adult should be present and conducting additional rapport building. Interviews involving minors may require additional lines of questioning if the officer suspects the minor is a victim of forced marriage or human trafficking.
Please note, while this population warrants special consideration, spousal relationships involving a minor should not be viewed as inherently fraudulent or containing elements of forced marriage.
For further guidance on Interviewing the Petitioner or Beneficiary of a Form I-130 spousal petition, please see Section I below.
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 ali
en 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)
Section 204(c) prohibits the approval of
petition, not just an I-130 petition. Accordingly, if an alien has attempted of conspired to enter into a fraudulent marriage,
would also be barred from approving an I-140 petition filed in his or her behalf.
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).
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.
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.
Interviewing Petitioner and Spouse
This section provides general guidance on interviewing the petitioner or beneficiary of an I-130 spousal petition. If the marriage involves a minor, the officer should follow the guidance below and the guidance provided in subsection (D)(iv), Interview Guidelines for Form I-130 Spousal Petitions Involving a Minor.
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).
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
regarding interviewing techniques), or even a field examination (see
) or an investigation (see
). 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).
Same Sex Marriages
In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) (1 U.S.C. § 7), which previously had barred recognition of same-sex marriages for Federal purposes, is unconstitutional. As a result, same-sex marriage is now a lawful basis for all immigration benefits based on marriage.
In order to be valid for immigration purposes, a same-sex marriage must meet all of the same requirements as an opposite-sex marriage. As with opposite-sex relationships, a civil union, domestic partnership, or other relationship that is not recognized as a legal marriage in the place of celebration is not considered a marriage for immigration purposes.
A same-sex marriage that is legally valid in the jurisdiction in which it was celebrated is valid for immigration purposes, regardless of whether the jurisdiction in which the parties reside recognizes same-sex marriage. See Matter of Zeleniak, 26 I. & N. Dec. 158 (BIA 2013).
Transgender issues and marriage. [Revised 8/10/12; PM-602-0061.1, AD12-02]
Prior to the Supreme Court's ruling in United States v. Windsor, 133 S. Ct. 2675 (June 27, 2013), benefits involving the marriage of transgender individuals could be granted pursuant to the Board of Immigration Appeals decision in Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005). Lovo-Lara provides that benefits based upon marriage may be approved on the basis of a marriage between a transgender individual and an individual of the other gender if the Petitioner/Applicant establishes 1) the transgender individual has legally changed his or her gender and subsequently1 married an individual of the other gender, 2) the marriage is recognized as a heterosexual marriage under the law where the marriage took place (Matter of Lovo-Lara, supra), and 3) the law where the marriage took place does not bar a marriage between a transgender individual and an individual of the other gender. Lovo-Lara remains binding precedent for marriages that were celebrated in a jurisdiction that does not allow same-sex marriages. However, following Windsor, whether a spouse is transgender has no bearing on the validity of the marriage that was celebrated in a jurisdiction that recognizes same-sex marriage.
A timely registered marriage certificate from the appropriate civil authority is prima facie evidence of the validity of a marriage. When an officer determines, based on the record or through interview or other means, that a party to a petition has changed gender, the officer must ascertain that the marriage is a valid marriage under the laws of the jurisdiction in which it was contracted.
The validity of the marriage must be established by the preponderance of the evidence. As with most administrative immigration proceedings, the petitioner bears the "preponderance of the evidence" burden. Thus, even if there is some doubt, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "probably true" or "more likely than not," the applicant or petitioner has satisfied the standard of proof. See United States v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of something occurring). As such, officers should be satisfied that this burden is met if the marriage is recognized in the jurisdiction in which it was contracted. USCIS will presume the validity of the marriage involving a transgender individual in the absence of jurisdictional law and/or precedent that would place the validity of such marriage in doubt.
Only in jurisdictions where a specific law or precedent either prohibits or sets specific requirements for a legal change of gender, and does not permit same-sex marriage, is the individual required to demonstrate that he or she has met the specific requirements needed to establish the legal change of gender and the validity of the marriage. The individual may also show, in an appropriate case, that the law barring a legal change of gender for purposes of marriage has changed and that the marriage is valid under current law, or that under the particular facts of the case and law of the jurisdiction in question, the marriage should be recognized (for example, if state law recognizes neither gender change nor same-sex marriage, then a marriage between a couple that is same-sex as a result of gender change of one of the parties may be considered lawful).
Where an individual claims to have legally changed his or her gender, USCIS will recognize that claim based upon the following documentation:
- Amended birth certificate; or
- Other official recognition of new gender, such as a passport, court order, certificate of naturalization or citizenship, or driver's license (note that some jurisdictions may have a lower threshold for issuing a driver's license than to establish a legal change of gender for purposes of the marriage laws, and USCIS would require additional evidence that the individual met the threshold for marriage, if applicable); or
- Medical certification of the change in gender from a licensed physician (a Doctor of Medicine (M.D.) or Doctor of Osteopathy (D.O.)). This is based on standards2 and recommendations3 of the World Professional Association for Transgender Health, who are recognized as the authority in this field by the American Medical Association.4 Medical certification of gender transition received from a licensed physician (an M.D. or D.O.) is sufficient documentation, alone, of gender change. If the physician certifies the gender transition, USCIS will not question the certificate by asking for specific information about the individual's treatment. Additional information about medical certifications:
- For the purposes of this chapter only an M.D. or a D.O. qualifies as a licensed physician. Officers may accept medical certifications from any number of specialties as well as from general practitioners.
- Statements from persons who are not licensed physicians, such as psychologists, physician assistants, nurse practitioners, social workers, health practitioners, chiropractors, are not acceptable.
- The medical certification should include the following information:
- Physician's full name;
- Medical license or certificate number;
- Issuing state, country, or other jurisdiction of medical license/certificate;
- Drug Enforcement Administration registration number assigned to the doctor or comparable foreign registration number, if applicable;
- Address and telephone number of the physician;
- Language stating that the individual has had appropriate clinical treatment for gender transition to the new gender (male or female);
- Language stating that he/she has either treated the applicant in relation to the applicant's change in gender or has reviewed and evaluated the medical history of the applicant in relation to the applicant's change in gender and that he/she has a doctor/patient relationship with the applicant
Sex reassignment surgery is not required in order for USCIS to approve a Form I-130 to establish a legal change of gender unless the law of the place of marriage clearly requires sex reassignment surgery in order to accomplish a change in legal gender and the jurisdiction does not permit same-sex marriage. The fact of sex reassignment surgery, however, would generally be reflected in the medical certification. USCIS will not ask for records relating to any such surgery.
These documents are listed in order of evidentiary preference. Officers must recognize, however, that the personal circumstances and jurisdictions involved in an individual's case will affect availability of specific types of documentation. As evidence of the new gender, officers should treat an amended birth certificate as carrying the same weight as USCIS would normally give to other timely registered primary evidence.
This guidance also applies to the adjudication of all immigration benefits based upon marriage, including but not limited to a Petition for Alien Fiancé(e). In the case of a proposed marriage involving a transgender individual, the petition may be approved assuming the same conditions are met for legal gender change and validity of the marriage as described above. If the record indicates the parties' specific intent to marry in a jurisdiction where the marriage would not be valid, the officer will issue an intent to deny in which the petitioner is informed that the marriage would not be valid for immigration purposes and why. USCIS will provide the petitioner the opportunity to submit evidence that USCIS's interpretation of the jurisdiction's law and/or precedent is incorrect or provide an affidavit attesting that the intended marriage will take place in a jurisdiction where the marriage will be valid for immigration purposes.
The same principles for determining the validity of a marriage involving a transgender individual for a spousal Petition for Alien Relative apply to those who may derive an immigrant or nonimmigrant benefit by virtue of a spousal relationship.
If an officer has questions about the validity of a marriage involving a transgender individual, the officer should contact local USCIS counsel.
As in all adjudications, if an officer finds significant substantive discrepancies, has reason to question the accuracy or authenticity of documents submitted, or finds other indicators of fraud, the case may be referred to FDNS in accordance with current national and local policies.
As in all adjudications, if an officer finds significant substantive discrepancies, has reason to question the accuracy or authenticity of documents submitted, or finds other indicators of fraud, the case may be referred to FDNS in accordance with current national and local policies.
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
regarding removal of conditions).
Marriage within Five Years of Obtaining LPR Status
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.
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.
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
of this field manual.)
of this field manual.
Petition for Widow(er)
The Immigration Act of 1990 expanded the definition of immediate relatives to include spouses of United States citizens who had been married at least two years before their spouse died. A widow(er) of a U.S. citizen may file a petition on his or her own behalf to be classified as an immediate relative under Section 201(b) of the Act.
of the Act and
8 CFR 204.2(b)
govern the process. An alien who obtains an immigrant visa or adjustment of status through this process is not subject to the conditional resident provisions of section 216 of the Act.
An eligible widow or widower may apply for immediate relative classification by filing Form I-360 concurrently with his or her adjustment application with the Service Center having jurisdiction over the petitioner’s residence. If the petitioner resides outside the United States, the I-360 petition should be filed with the
office or American consulate having jurisdiction over such residence.
Widow(er) may be classified as an immediate relative if:
He/she was married for at least two years to a United States citizen (
The United States citizen must have been a U.S. citizen at the time of death, but did not have to have the status of a U.S. citizen for the entire two year period);
The petition was filed within two years of the death of the citizen spouse or before November 29, 1992, if the citizen spouse died before November 29, 1990;
The alien petitioner and the citizen spouse were not legally separated at the time of the U.S. citizen's death; and
The alien spouse has not remarried.
The petition must be accompanied by the following evidence:
Evidence of citizenship of the United States citizen (birth certificate, certificate of naturalization, certificate of citizenship, or U.S. passport); and
Evidence of the relationship, which includes:
Marriage certificate issued by civil authorities;
Proof of the terminations of all prior marriages of both husband and wife (divorce or annulment decrees or death certificates of prior spouses); and
Death certificate of the U.S. citizen issued by civil authorities.
Primary evidence of the relationship (as listed above) is preferred. If the primary evidence is not available, secondary evidence may be considered (see
of this field manual).
The adjudication of an I-360 petition filed by a widow or widower is quite similar to the adjudication of an I-130 petition filed by a citizen for his or her spouse. The basic eligibility requirements are the same (status of petitioner and relationship between the petitioner and the beneficiary), and the significant concerns are the same (dissolution of any and all prior marriages, fraud, etc.). The most significant difference in the adjudication is the obvious one: the citizen cannot be questioned as to th
e bona fides of the marriage. However, the burden of proof still rests with the petitioner (who in this case is also the beneficiary), and the resolution of questions regarding the bona fides of the marriage is still the petitioner’s responsibility. The basic techniques for determining whether the marriage is suspect still exist: examination of the paper trail; formal interrogation of the petitioner; and field examination or investigation.
Factors which may lead you to doubt the bona fides of the marriage and to more intensively question the petitioner (or to call for a field examination or investigation) include:
A large age discrepancy between the petitioner and the (now) deceased citizen at the time of the marriage;
Ill health of the citizen at the time of the marriage, although this is obviated to some extent by the requirement that the marriage be in existence for at least 2 years before the death of the citizen;
Lack of common residence of the petitioner and the citizen prior to the latter’s demise;
Lack of intermingling of financial assets and liabilities (and other resources and obligations).
If the petition is approved:
Place the examiner's approval stamp in the Action Block on the petition;
Sign your name;
Annotate the petition with the proper classification (IW1) and the consulate selected by the petitioner;
If the petitioner will be applying for an immigrant visa, forward the petition to the Department of State's National Visa Center;
If the widow(er) is in the U.S. and is eligible for adjustment of status under Section 245 of the Act, retain the approved petition and write "245 Adjust" in the Consulate box.
If the petition is denied, notify the widow(er) in writing of the reasons for the denial. As required in Chapter
of this manual, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.
Child of Petitioning Widow(er)
A child of a petitioning widow(er) classified as an immediate relative is also eligible for
classification as an immediate relative. Except as provided in section 423 of the Patriot Act (see paragraph (b)(8)), no separate petition is filed for such child. The child of the petitioning widow(er) need not be the child of the deceased citizen and could have been born either before, during, or after the marriage of the petitioner to the (now) deceased citizen. However, the child would
be eligible for derivative classification under the widow(er) provision if:
He or she has reached the age of 21;
He or she is married;
The petitioning widow(er) has remarried;
He or she was born after date on which the petitioning widow(er) immigrated to the U.S.
When the widow/widower provisions were first incorporated into the law (1990), there was no provision for the child of such widow or widower. The provision which allows for immediate relative classification for the child was added by
of the Technical Corrections Act of 1994. If a widow(er) who immigrated under the pre-1994 version of this provision had a child who (still) qualifies under the 1994 revision, that child can immigrate under this
provision, without the filing of a new petition.
Although the statute is silent on whether the child must be accompanying or following to join the petitioning widow(er)/parent,
8 CFR 204.2(b)(4)
states that the child “may accompany or follow to join.” Accordingly, by regulation, the child cannot be admitted or adjusted unless and until the petitioning widow(er)/parent has been admitted or adjusted.
Special Provisions Added by the USA Patriot Act of 2001
In response to the September 11, 2001, terrorist attack on the World Trade Center and the Pentagon, Congress passed Public Law 107- 56, Act of October 26, 2001, 115 Stat. 272 (the “USA Patriot Act”).
of that law expanded the widow(er) self-petition entitlement for widow(er)s of citizens killed as a direct result of those terrorist acts. It did so in two significant ways:
It provided that an otherwise qualifying widow(er) of a citizen killed in the terrorist attacks of that day may self-petition without any regard to the length of the marriage; and
It provided that any child of a U.S. citizen who was killed in one of the terrorist acts of September 11, 2001, may file a petition for status as an immediate relative child within two years of the death of the parent, regardless of changes in age or marital status. (In other words, he or she must have met the definition of child on September 11, 2001, but could have turned 21 and/or married after that date.) As a result of the child’s ability to self-petition, the regulatory “accompanying or following to j
oin” requirement that normally attaches to the child of a widow(er) (see Note 2 of paragraph (b)(6)) does not apply in the case of a child of a citizen killed as a direct result of the September 11, 2001 terrorist attack.
All other statutory requirements remain unchanged, as do all other aspects of the adjudication of the I-360 petition described in this field manual.
Although a child of a citizen killed as a direct result of the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon may self-petition even if he/she has married, there is no visa category for the spouse or child of such self-petitioning child. If such self-petitioning child has a spouse or child of his/her own, he/she would have to immigrate first and then file a 2
preference petition for such spouse or child.
Precedent Decisions Relating to Spouse Petitions
In addition to the decisions cited in section 21.2(h), which apply to I-130 petitions in general, the following precedents apply to petitions filed for a spouse:
Matter of B–
, 5 I&N Dec. 698 (BIA 1954)
. A proxy marriage must be consummated to be valid for benefits under the I&N Act.
Matter of M–
, 8 I&N Dec. 217 (BIA 1958)
. Where no bona fide husband-wife relationship was intended, a marriage is deemed invalid for immigration purposes regardless of whether it would be considered valid under the domestic law of the jurisdiction where it was performed.
Matter of Agoudemos
, 10 I&N Dec. 444 (BIA 1964)
Matter of G–
, 9 I&N Dec. 89 (BIA 1960)
. A marriage which is voidable but not void without any action to void the marriage is generally valid for benefits under the I&N Act.
Matter of H–
9 I&N Dec. 640 (BIA 1962)
. A polygamous marriage, though valid where contracted, is not recognized for immigration purposes.
Matter of Zappia
, 12 I&N Dec. 439 (BIA 1967)
. A marriage complying with all the requirements of the state of celebration might nevertheless be deemed invalid if it is invalid under the laws of the state where the parties are domiciled at the time of the marriage and where both intend to make their home afterward or if it violates a strong public policy of the state of domicile.
Matter of Pearson
, 13 I&N Dec. 152 (BIA 1969)
. The marriage following a divorce can only be considered valid if the divorce is considered valid under the laws of the place where the marriage was contracted.
Matter of Phillis
, 15 I&N Dec. 385 (BIA 1975)
. The facts of an individual case may suggest or imply that the marriage was entered into solely for the purpose of obtaining immigration benefits. The mere denial of fraud does not overcome the inference and is insufficient to sustain the petitioner's burden of proof.
Matter of Weaver
16 I&N Dec. 730 (BIA 1979)
.The validity of a divorce should be governed by the law of the state where the parties were domiciled at the time of the divorce.
Matter of P–
, 4 I&N Dec. 610 (BIA 1952)
. The validity of a marriage is generally governed by the law of the place where it is celebrated.
Matter of Lenning
, 17 I&N Dec. 476 (BIA 1980)
. A petition was properly denied where the parties entered into a formal, written separation agreement notwithstanding the fact that the marriage had not been finally dissolved by an absolute divorce decree.
Matter of W–
, 8 I&N Dec. 16 (BIA 1958)
. A Mexican "mail order" divorce, not ordinarily recognized as valid by California courts,.was not valid for immigration purposes, thus the applicant was not legally free to marry.
Matter of Kurys
, 11 I&N Dec. 315 (BIA 1965)
. A visa petition filed under compulsion of a court order by a petitioner who stated that a bona fide marital relationship did not exist and that she did not intend to live with her husband is properly denied. The petition was not filed in good faith.
Matter of Arenas
, 15 I&N Dec. 174 (BIA 1975)
. In determining the validity of a marriage for immigration purposes, the law of the place of celebration of the marriage will generally govern. Under Section 2.22 of the Texas Family Code, a marriage is void if either party was married and the prior marriage is not dissolved. However, the marriage becomes valid when the prior marriage is dissolved and the parties continue to reside together as husband and wife and present themselves to others as being married.
Matter of DaSilva
, 15 I&N Dec.778 (BIA 1976)
. A marriage between an uncle and his niece is valid for immigration purposes for a couple who reside in New York but who marry in Georgia where marriage between and uncle and niece are legal. Since the marriage was legally contracted in Georgia and is thus not regulated by New York law nor violative of New York public policy, the marriage is recognized as valid in New York and is valid for immigration purposes.
Matter of Magana
, 17 I&N Dec. 111 (BIA 1979)
. Where the respondent entered the United States as the spouse of a citizen, concealing the fact of his prior marriage in Mexico, a decree from a Washington state court declaring the Mexican marriage invalid from its inception will not be given retroactive effect for immigration purposes.
Matter of Laureano
, 19 I&N Dec. 1 (BIA 1983)
. A marriage entered into for the primary purpose of circumventing the immigration laws, commonly referred to as fraudulent or sham marriage, is not recognized for the purpose of obtaining immigration benefits.
Matter of Kumah
, 19 I&N Dec. 290 (BIA 1985)
. A Ghanaian court decree of divorce is accepted as evidence that a customary divorce was validly obtained, however, it is not deemed to be conclusive proof of the facts certified therein because of the potential for fraud or error in the issuance.
Matter of Zeleniak
, 26 I. & N. Dec. 158 (BIA 2013). Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the jurisdiction where it was celebrated.
Please consult with OCC in cases where the marriage was originally an opposite-sex marriage celebrated in a state that does not recognize same-sex marriage, and one of the spouses changed gender after the marriage.
Standards of Care, 7th Version (2012), World Professional Association for Transgender Health (WPATH)
Identity Recognition Statement (2010), World Professional Association for Transgender Health (WPATH),
American Medical Association. Res. 122; A-08, Removing Barriers to Care for Transgender Patients (2008)
\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 21 Family-based Petitions and Applications. \ 21.3 Petition for a Spouse.