Fiance Visa Decisions of Interest
The Administrative Appeals Office (AAO) is the administrative arm of the USCIS assigned to hear appeals over denied or revoked petitions and applications. The following decisions are opinions rendered by the AAO concerning the requirements of I-129F fiance visa petitions. They provide a glimpse of how the Department of Homeland Security interprets the Immigration and Nationality Act and Code of Federal Regulations.
Meeting Requirement
Section 214(d) of the Immigration and Nationality Act, states, in pertinent part, that a fiance visa petition, "shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within two years before the date of filing the petition. . ."
Further, 8 CFR 214.2(k)(2) states that the meeting requirement may be waived if it would result in extreme hardship to the petitioner or if it would violate customs of the beneficiary's foreign culture providing that all other aspects of that foreign culture have been followed.
Petitioner filed a Petition for Alien Fiance, Form I-129F with the USCIS on June 6, 2006. Therefore, the petitioner and beneficiary were required to have met during the period that began on June 6, 2004 and ended on June 6, 2006. Included with the petition was petitioner's admission that he and the beneficiary had not previously met, but was entitled to a waiver of the requirement because: 1) he was granted political asylum in the United States and cannot travel back to his home country, where his fiancee lives, 2) his culture believed in arranged marriages and his religion does not allow the bride and groom to meet before marriage, and 3) meeting in a third country would be financially difficult.
On appeal, the petitioner admited to meeting his fiancee in Thailand on May 1, 2007. The AAO found that by meeting on May 1, 2007, which took place outside of the requisite 2-year meeting period, the petitioner failed to establish that such a meeting violated religious beliefs. Indeed, the May 2007 trip occurred after the petitioner filed the Form I-129F on behalf of his fiancee. Thus, while the petitioner established that he met his fiancee, the meeting did not occur within the required two-year time period. The AAO further found that financial concerns regarding an overseas meeting do not constitute extreme hardship. Accordingly, the AAO dismissed the appeal.
Petitioners attempting to secure a waiver of the 2-year meeting requirement should take note of the AAO decision. The AAO adheres strictly to the immigration law and will not make exceptions. Despite the petitioner meeting his fiancee, the AAO dismissed the appeal because it was not within the required 2-year time period.
Section 214(d) of the Immigration and Nationality Act, states, in pertinent part, that a fiance visa petition, "shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within two years before the date of filing the petition. . ."
Further, 8 CFR 214.2(k)(2) states that the meeting requirement may be waived if it would result in extreme hardship to the petitioner or if it would violate customs of the beneficiary's foreign culture providing that all other aspects of that foreign culture have been followed.
Petitioner filed a Petition for Alien Fiance, Form I-129F with the USCIS on June 4, 2007. Therefore, the petitioner and beneficiary were required to have met during the period that began on June 4, 2005 and ended on June 4, 2007. In response to a Request for Evidence (RFE) from the USCIS, the petitioner submitted an affidavit, a letter from his doctor, and the section on Liberia from the 2006 U.S. Department of State Country Reports on Human Rights Practices. The petitioner stated that he suffers from Type 2 diabetes mellitus which requires him to take daily insulin injections and regular blood testing. Due to his medical condition, he is not able to travel to Liberia where medical care is not available.
On appeal, the petitioner added that his filing of the Form I-129F established the immigrant intent of the beneficiary and therefore the beneficiary could not obtain a B-2 tourist visa to meet the petitioner in the United States.
The AAO informed the petitioner that during the 2-year period prior to the filing of the I-129F petition, the immigrant intent of the beneficiary was not established and the beneficiary may have been able to secure a B-2 tourist visa. Furthermore, the AAO concluded that while the petitioner's medical condition prevented him from traveling to Liberia, it did not prevent him from traveling to a third country. Accordingly, the AAO dismissed the appeal.
Petitioners attempting to secure a waiver of the 2-year meeting requirement must explore all options. Just because the petitioner is not able to travel to the beneficiary's country does not preclude the petitioner from traveling to a third country, nor does it prevent the beneficiary from applying for a B-2 tourist visa.
Marriage After Filing I-129F Fiance Visa Petition
Section 101(a)(15)(K) of the Immigration and Nationality Act states that an alien may be eligible for a "K" visa if: 1) they are the fiance of a U.S. citizen and seek to enter the United States solely to marry that U.S. citizen within 90 days after admission, 2) have already married a U.S. citizen who is the petitioner and is also a beneficiary of a pending Alien Relative Petition, Form I-130 filed by that petitioner, or 3) is the minor child of an alien described in 1) or 2) and is accompanying or following to join, that alien.
Petitioner filed a Petition for Alien Fiance, Form I-129F with the USCIS on June 7, 2006. The petitioner responded to a Request for Evidence (RFE) sent by the USCIS stating that he and the beneficiary married on September 13, 2006.
On appeal, the AAO found that by marrying on September 13, 2006, three months after he filed the fiance visa petition, it is impossible for him to establish that his spouse was the beneficiary of a pending I-130 petition at the time he filed the Form I-129F. Accordingly, the AAO dismissed the appeal.
A U.S. citizen wishing to bring their foreign spouse into the United States under the "K" classification must first file a Form I-130, Petition for Alien Relative on behalf of their spouse. To prove compliance with this requirement, the petitioner must include a copy of the receipt notice for the I-130 with the Form I-129F.
Free to Marry
Section 214(d) of the Immigration and Nationality Act, states, in pertinent part, that a fiance visa petition, "shall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties . . . are legally able and actually willing to conclude a valid marriage in the United States . . ."
Furthermore, Matter of Souza, 14 I&N Dec. 1 (Reg. Comm. 1972) holds that both the petitioner and beneficiary must be unmarried and free to conclude a valid marriage at the time the petition is filed.
Petitioner filed a Petition for Alien Fiance, Form I-129F with the USCIS on June 20, 2007. Included with the petition was only petitioner's English translation of his Haitian divorce decree. On appeal, the petitioner submitted a copy of his original divorce decree from a Haitian court with an English translation, together with a letter from the Vice-Consul at the U.S. Embassy in Port-au-Prince, Haiti certifying the decree.
The Foreign Affairs Manual (FAM) of the Department of State provides guidance on obtaining documents from foreign countries. The AAO noted that the FAM states that original certificates in Haiti are extremely difficult to authenticate. As a result, the United States requires all birth, marriage, and divorce certificates from Haiti to be in the form of extracts from the National Archives of Haiti, with an English translation. The AAO held that even though the petitioner submitted a copy of his divorce decree with an English translation, it was not the required document as outlined in the Foreign Affairs Manual. Accordingly, the petitioner did not prove he was legally free to marry the beneficiary when the petition was filed and his appeal was dismissed.
This decision highlights the importance of ensuring compliance with the Foreign Affairs Manual foreign document requirements. Not all documents issued by foreign authorities are valid for U.S. immigration purposes. Prior to filing any petition with the USCIS, the petitioner must confirm that his documents will be accepted by reviewing the Foreign Affairs Manual.
Bona Fide Relationship
Section 101(a)(15)(K) of the Immigration and Nationality Act defines "fiance(e)" as:
An alien who is the fiancee or fiance of a citizen of the United States and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after entry . . .
Section 214(d) of the Immigration and Nationality Act, states, in pertinent part, that a fiance visa petition:
[s]hall be approved only after satisfactory evidence is submitted by the petitioner to establish that the parties have previously met in person within two years before the date of filing the petition, have a bona fide intention to marry, and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien's arrival . . .
On appeal, the AAO noted that Section 214(d) does not contain the requirement that the petitioner and beneficiary have a bona fide relationship. In fact, the AAO explicitly stated that, "In denying the instant petition, the [USCIS] appears to have imposed an additional requirement on the petitioner - establishing the genuineness of her relationship to the beneficiary. Accordingly, the AAO sustained the appeal.
The imposition of the additional "bona fide relationship" requirement is common at the consular level. So many times, a beneficiary will not receive the K1 fiance visa because the interviewing consular officer concludes that the relationship is between the petition and beneficiary is not genuine. It will be interesting to see if this decision will have any effect on the conclusions reached by the interviewing officers at consulates around the world.
Transgender Couples
The Defense of Marriage Act defines "marriage" as the legal union between one man and woman.
Petitioner filed a Petition for Alien Fiance, Form I-129F with the USCIS and explained that he was born an intersex baby in 1962. The common practice in 1962 was to list the gender of the infant as female. The petitioner further explained that during puberty he determined that he was a male. Also submitted with the petition was a letter from petitioner's physician explaining that the petitioner did not undergo chromosomal or hormonal tests at the time of his birth to determine his gender, but it has been determined since petitioner's birth that he is a biological male.
On appeal, the AAO analyzed a recent Board of Immigration Appeals (BIA) case, Matter of Lovo, 23 I&N Dec. 746 (BIA 2005), that dealt with a similar issue. In that case, the petitioner underwent sex change surgery and subsequently changed the gender designation on her North Carolina birth certificate from male to female. The petitioner married the beneficiary, a male citizen of El Salvador, and filed a petition to classify the beneficiary as an immediate relative. The USCIS denied the petition because the definition of marriage in the Defense of Marriage Act did not include a marriage between a man and transsexual woman. The BIA held that the Defense of Marriage Act does not preclude the recognition of a marriage involving a postoperative transsexual if the state in which the marriage was performed recognizes the union as a valid heterosexual marriage.
The AAO found that, using the BIA analysis in Matter of Lovo, the petitioner must first fix the birth certificate to reflect the correct gender. Once the petitioner's gender is legally recognized, and not merely medically recognized, a marriage to the beneficiary will be sufficient for immigration purposes.
Transgender couples will always receive a heightened level of scrutiny from the USCIS. Before attempting to secure a fiance or marriage visa, a thorough understanding of the binding case law and statutes is essential for success.
Government Agencies
- Department of Homeland Security The DHS is responsible for providing immigration related services and benefits, including investigative and enforcement responsibilities.
- United States Citizenship and Immigration Services The USCIS is the government agency that oversees lawful immigration to the United States. It is responsible for the approval of all immigrant and nonimmigrant petitions, work authorizations, and adjustments of status.
- United States Customs and Border Protection The CBP's priority is to keep terrorists and their weapons out of the United States. It also bears the responsibility for securing and facilitating trade and travel while enforcing United States laws and regulations.
- United States Immigration and Customs Enforcement ICE protects the security of the United States by enforcing the nation's immigration and customs laws. It is the largest investigative agency in the DHS.
- Department of State The Department of State interprets visa laws and regulations and acts as a point of contact for the public. In particular, the Department of State processes visa applications and approved petitions, and issues visas to enter the United States.
- National Visa Center The NVC is an immigrant visa processing facility. It processes all approved immigrant visa petitions after they are received from the USCIS and retains them until the cases are ready for adjudication by a consular officer abroad.
- United States Embassies, Consulates, and Diplomatic Missions
- Executive Office for Immigration Review Separate from the Department of Homeland Security and Department of State, the EOIR is a distinct agency within the Department of Justice. The EOIR interprets and administers immigration laws by conducting immigration court proceedings, appellate reviews, and administrative hearings.