K1 Petition Not Approvable if Marriage is Invalid in State of Residence (Matter of Balodis)

 

Introduction: Matter of Balodis, 17 I&N Dec. 428 (Reg. Comm. 1980)

On February 12, 1980, the former Immigration and Naturalization Service (INS) published a precedential decision in the Matter of Balodis, 17 I&N Dec. 428 (Reg. Comm. 1980) [PDF version]. At issue was a K fiancée petition filed by a U.S. citizen petitioner on behalf of his first cousin. The petition was initially denied because the state of the petitioner's domicile, Michigan, prohibited marriages between first cousins. However, the INS regional commissioner reversed that decision because Michigan recognized marriages between first cousins when they were lawfully entered into outside of the state. Because the regional commissioner concluded that the petitioner and beneficiary could legally marry outside of Michigan, he reversed the denial of the K visa petition on that basis.

Although this decision does not cite to it, the result is nearly identical to an earlier INS decision addressing a similar issue in the context of an immigrant visa petition based on marriage. To read about that decision, please see our full article on Matter of Da Silva, 15 I&N Dec. 778 (BIA 1976) [see article].

In this article, we will examine the factual and procedural history of Matter of Balodis and the Regional Commissioner's analysis and conclusions. To learn more about family immigration generally, including the K1 nonimmigrant category, please see our growing selection of articles on the issue [see category]. Please see our index of immigration precedent decision articles to learn about important rules in all areas of immigration law [see index].

Overview of Matter of Balodis

The petitioner was a 55-year old naturalized citizen of the United States. He filed a K1 fiancée petition on behalf of a 47-year old native and citizen of Latvia. The petitioner and the beneficiary were related to each other as first cousins. The petitioner, a resident of Michigan, intended to reside with the beneficiary as a couple in Michigan after their marriage.

The Regional Commissioner explained that K1 nonimmigrant classification may only be granted to the beneficiary if the petitioner establishes that: (1) the petitioner is a citizen of the United States; (2) is free to marry; (3) is able and intends to enter into a lawful marriage with the beneficiary within ninety days after her arrival in the United States; and (4) the beneficiary is similarly able and intends to marry the petitioner within the specified time.” Note that there are additional requirements under current K1 law.

The District Director who initially considered the K1 petition denied it on the basis that Michigan law precludes marriage between first cousins. The District Director reasoned that this statutory provision rendered the petitioner and beneficiary unable to conduct a valid marriage in Michigan.

On appeal before the Regional Commissioner, the petitioner's counsel acknowledged that Michigan law precludes first cousins from celebrating their marriage in the state. However, the petitioner argued that the K1 petition must be approved because they would be able to marry legally in any other state that recognized the right of first cousins to marry (at the time Matter of Balodis was decided, over one-quarter of U.S. states recognized marriages between first cousins as valid). Citing to several Michigan court decisions, petitioner's counsel argued that the prohibition on marriages between first cousins in the state applied only to marriages solemnized in Michigan, not those marriages solemnized in jurisdictions where they were deemed to be valid.

The Regional Commissioner agreed that Michigan case-law distinguished between first-cousin marriages solemnized in Michigan and those solemnized outside of Michigan. See Toth v. Toth, 50 Mich.App. (1973); In re Miller's Estate, 239 Mich. 455 (1927); and Noble v. Noble, 299 Mich. 565 (1941).

Although Michigan law at the time Matter of Balodis was decided criminalized incest between first cousins, the Regional Commissioner concluded that this statutory prohibition “does not apply where the first cousins have entered into a marriage valid where solemnized.” The Board of Immigration Appeals (BIA) had held in Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) [see article], that a marriage between first cousins in Wisconsin, which like Michigan banned the practice, was invalid for immigration purposes notwithstanding that it was solemnized in a state which recognized such marriages because Wisconsin law still deemed the marriage void. However, the Regional Commissioner found that Michigan law was distinguishable because it “does permit the first cousins to leave the state solely to contract a lawful marriage in a state which recognizes marriages between first cousins, and such marriage shall be held good upon their return to Michigan.”

For the foregoing reasons, the Regional Commissioner concluded that the petitioner and beneficiary would be able to enter into a valid marriage outside of Michigan within ninety days of the beneficiary's entry in K1 status and subsequently have their marriage recognized as valid in Michigan, the state of presumed residence. For this reason, the Regional Commissioner sustained the petitioner's appeal, reversing the District Director's decision and approving the K1 petition.

Interesting Unpublished Decision Citing to Matter of Balodis

On November 3, 2011, the Administrative Appeals Office (AAO) entered an interesting unpublished decision which involved a mostly similar situation to that in Matter of Balodis, but with one pertinent and ultimately decisive difference. You may see the unpublished decision here [PDF version].

The petitioner, a U.S. citizen, sought to classify the beneficiary, a native and citizen of Pakistan, as a fiancé(e) of a U.S. citizen in K1 classification. There were several points at issue in the appeal. One of the issues which resulted in the initial denial of the petition was that the petitioner and beneficiary were first cousins, and Michigan, the petitioner's state of residence, prohibited marriages between first cousins.

The petitioner argued on appeal that the K1 petition should be approved because he and the beneficiary would marry in New York, wherein marriages between first cousins were not prohibited. In making this argument, he relied on the precedent from Matter of Balodis.

However, the AAO found that the facts of the instant case were distinguishable from Matter of Balodis on one key point. The AAO granted that a marriage between first cousins solemnized in New York would be recognized as valid in Michigan not withstanding Michigan's prohibition on solemnizing marriages between first cousins. However, the AAO found that in this particular case, the petitioner had failed to establish that the beneficiary would have been eligible to receive a marriage license in New York at the time of the filing of the Form I-129F. The issue was that at the time of the filing of the Form I-129F, the beneficiary was only 17-years old. Although New York law allowed 17-year olds to marry, they could only do so with parental consent. Without such consent, the marriage would be voidable. The petitioner submitted no proof of parental consent or a waiver from the minimum age requirement. In order to overcome this hurdle, the petitioner noted that the beneficiary was over the age of 18 at the time of the appeal, meaning that parental consent would no longer be a requirement for them to marry under New York law. However, the AAO held that this was irrelevant to the consideration of whether the Form I-129F was approvable. Citing to Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971) [PDF version], the AAO held that the issue was whether the Form I-129F was approvable when filed. “A petition may not be approved at a future date after the petitioner or beneficiary become eligible under a new set of facts.”

Matter of Balodis remains good law. The AAO decision elucidates the fact, however, that in a case with similar facts, the petitioner and beneficiary must be eligible to marry in a different state at the time the Form I-129F is filed. Thus, in cases involving other issues, such as the age of one or both of the parties to the intended marriage, the petitioner must ensure that he or she submits evidence showing that the marriage would not be voidable on those alternative grounds at the time the Form I-129F is filed.

We discuss issues specifically related to immigration petitions based on marriage involving minors in a separate article [see article].

Conclusion

Matter of Balodis highlights an interesting scenario that may arise in visa petitions involving marriage between close relatives or minor(s). In certain cases, a state which would not allow two people to marry may recognize the marriage if it solemnized in a different jurisdiction. Immigration precedent makes clear that in such cases the marriage may be deemed valid for immigration benefits purposes. However, as the AAO decision highlights, the petitioner and beneficiary must be eligible to marry in every respect at the time the petition is filed.

In general, petitioners filing K visa petitions or immigrant visa petitions for spouses should consult with an experienced immigration attorney for case-specific guidance. This guidance is especially important in cases which involve unusual marriage arrangements, such as those between relatives and those involving minors.