Spousal Petitions Involving Minors

 

Introduction

On February 15, 2019, the United States Citizenship and Immigration Services (USCIS) published a Policy Alert (PA) titled “Marriage Involving Minor(s)” [AFM PA-2019-01]. The PA updates the USCIS Adjudicator's Field Manual (AFM) policies on marriages involving minors. The Immigration and Nationality Act (INA) provides for no minimum age requirement for spousal petitions based on marriage. Thus, the AFM update guides adjudicators on how to evaluate Form I-130 petitions where either the petitioner or the beneficiary is a minor. Rather than establish entirely new policies, the AFM update clarifies key points of the USCIS's policy on this issue. We will examine the AFM updates and related issues in this article. Please see our short article on a subsequent USCIS update on Form I-130 interviews for spousal petitions involving minors [see article] after reading this article.

To learn about family immigration generally, please see our website's growing section on the subject [see category].

New AFM Policy for Marriages Involving Minors

The new AFM provisions for marriages involving minors are found at AFM 21.3(a)(2)(D) [PDF version].

General Overview

The AFM policy guidance comes in light of the fact that “[t]here are no statutory minimum age requirements for the petitioner or beneficiary of a Form I-130 spousal petition.” Foreign countries have varying laws regarding marriages involving minors. In the United States, the laws regarding marriage involving minors vary among the many states. The AFM notes that, while the INA's definition of the term “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.”

Notwithstanding the fact that the INA does not preclude the approval of a Form I-130 spousal petition filed on behalf of a minor beneficiary (or filed by a minor), “a marriage involving a minor warrants special attention” from adjudicators. The AFM instructs adjudicators to 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.

The USCIS then develops each of these three points further in its new policy guidance.

i. Legality of Marriage in the Place of Celebration

In order for the USCIS to approve a Form I-130 spousal petition for a minor, the USCIS must be satisfied “that the marriage was lawful in the place where it was celebrated and on the date it was celebrated.” The burden of proof of showing that the marriage was lawful at the time and place it was celebrated rests with the petitioner. Please see our article on Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) [see article], to learn more about the petitioner's burden of proof. In order to satisfy the burden of proof, the petitioner “must provide evidence that the minor(s) met the legal minimum age requirements in the place of celebration or that the minor() qualified for an exception to the general age requirements.”

If the petitioner has not submitted sufficient evidence to satisfy his or her burden of proof, the USCIS may issue a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). However, the AFM makes clear that the adjudicator has the discretion to deny the petition without issuing an RFE or NOID.

Even in cases where neither the petitioner nor the beneficiary is a minor at the time the Form I-130 is adjudicated, the petitioner has the burden of establishing that the marriage was valid at the time it was entered into. To this effect, the AFM cites to the Attorney General decision in Matter of P-, 4 I&N Dec. 610 (A.G. 1952) [see article].

ii. Validity of the Marriage in Petitioner and Beneficiary's State of Residence or Presumed State of Residence and State Public Policy Considerations

In the case where the marriage involving minor(s) was (1) lawfully entered into in the place where it was celebrated; but (2) the couple now lives in or can be expected to live in a different place at the time of the adjudication of the Form I-130, the USCIS adjudicator “should determine whether the marriage is or will be recognized as valid in the petfitioner's current or presumed state of residence.”

The Board of Immigration Appeals (BIA) held in Matter of Zappia, 12 I&N Dec. 439 (BIA 1967) [see article], and in Matter of Da Silva, 15 I&N Dec. 778, 779 (BIA 1976) [see article], that a marriage which is valid in the state of celebration may be deemed invalid for immigration purposes “if it is invalid under the laws of the 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.” (Quote from AFM.)

In Matter of Manjoukis, 13 I&N Dec. 705 (BIA 1971) [see article], the BIA held that there is a presumption in cases where the Form I-130 beneficiary lives abroad that “the couple will reside in the petitioner's state of residence.” (Quote from AFM.) This presumption exists unless there is evidence to the contrary “otherwise indicated or known to the officer.” In such a case of a spousal petition involving at least one minor, the USCIS officer must determine the validity of the marriage in the petitioner's current or presumed state of residence. The petitioner bears the burden of establishing that the marriage is valid in the state of residence. The AFM suggests that “the petitioner may provide evidence that the state Attorney General's Office recognizes the marriage involving a minor, which was celebrated out of state.” Although the adjudicator may issue a RFE or NOID if the petitioner has not submitted sufficient evidence to establish that the marriage would be recognized in the state of residence, the adjudicator retains discretion to deny the petition without taking this step.

In cases where it is unclear whether the marriage would be valid outside the place it was celebrated, “officers should also determine whether the marriage violates the public policy of the new place of residence.” To this effect, the AFM explains that “[a] state's public policy is often reflected in specific criminal statutes that penalize undesirable or offensive conduct.” USCIS officers are instructed to study the statutes of the state of residence “to determine whether the marriage is contrary to the state's public policy.” In certain cases, a marriage that is legal in the place of celebration may be “void under the state law of the minor's residence as contrary to state public policy.” However, as the Board discussed in Matter of Da Silva, a marriage may be prohibited if it takes place in a state but recognized if it occurred outside of that state. Conversely, some states have what are generally referred to as “evasion laws,” which have the effect of not recognizing marriages entered into outside of the state of residence in order to evade the marriage restrictions in the state of residence. Due to the myriad state laws on marriage, “[t]he 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.”

iii. Bona Fides of the Marriage, Including Forced Marriage Considerations

The USCIS must consider whether a marriage involving minor(s) meets all of the applicable requirements for being a bona fide marriage. The Board made clear in Matter of Laureano, 19 I&N Dec. 1 (BIA 1983) [see article], that a marriage entered into for the sole purpose of evading U.S. immigration law is invalid. However, there are specific concerns with regard to the bona fides of a marriage where the marriage involves minor(s) that USCIS officers are instructed to pay special attention to.

Generally, “[a] marriage that was entered into without the consent of one or both parties is not considered to be bona fide for immigration purposes.” In most cases, a USCIS 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…” The AFM defines a “forced marriage” as “a marriage entered into without the full, free, and informed consent of one or both parties to the marriage, regardless of age.” One example of a forced marriage indicator is “an affidavit from the victim or a communication from Department of State.” The AFM advises USCIS officers that “[i]nstances of forced marriage are almost always self-identified.” The AFM instructs adjudicators to not confuse the concept of “forced marriage” with “arranged marriage,” which entails situations “where families may be involved in selecting a partner.” The USCIS will consider whether a marriage involving minor(s) was forced when making a determination as to whether the marriage is bona fide.

We discuss forced marriages, including options for individuals who are forced to petition for a spouse or fiancée, in a separate article [see article].

Affidavit of Support Age Requirement

There is no minimum age requirement for being party to a Form I-130 spousal petition. However, a sponsor executing the Form I-864, Affidavit of Support, “must be at least 18 years of age at the time the Form I-864 is executed.” In most cases, the Form I-864 must be submitted with the Form I-485 application for permanent residence or to adjust status.

When Spousal Petition Involving Minor(s) Should Be Approved

A spousal petition involving minor(s) must be approved provided that the petitioner satisfies his or her burden of proof regarding the following four points:

1. The marriage was legal in the place of celebration (and at the time of celebration);
2. The marriage is recognized as valid in the couple's current or presumed state of residence and there are no state public policy concerns; and
3. The marriage is bona fide and there are no indications of a forced marriage; and
4. All other eligibility requirements have been met.

Interviews Required Prior to Approval of Certain Forms I-130

On April 12, 2019, the USCIS updated the AFM again to require interviews prior to the approval of the Form I-130 for certain spousal petitions involving minors. When a Form I-130 involving at least one minor is otherwise approvable, it will be referred for an interview where one of the spouses is under the age of 16, or where one of the spouses is 16 or 17 years of age and there is an age difference between the spouses of at least ten years. We cover this new guidance in a separate article [see article].

Conclusion

Because the INA provides no minimum age for parties to spousal petitions, the approvability of a petition involving minor(s) depends on a case-specific analysis. In all cases, the marriage must have been valid at the time and place it was entered into and the marriage must have been freely entered into in order for the Form I-130 to be approvable. However, the petition must also be valid in the petitioner's state of residence or state of presumed residence. The USCIS's inquiry into the latter point necessarily involves an evaluation of the laws and policies of the state of residence or state of presumed residence. While all petitioners seeking immigration benefits for a spouse are well advised to consult with an experienced immigration attorney, this may be especially important in cases involving minor(s) due to the specific complexities involved. The FAM also alludes to the fact that sponsorship concerns may arise where the petitioner is a minor.

While the USCIS does not have a special presumption that marriages involving minors are forced, it will closely scrutinize Forms I-130 involving a minor petitioner and/or beneficiary for forced marriage flags. We discuss forced marriages and potential options for victims in a separate article [see article].

It is worth noting that the guidance regarding spousal petitions involving minors applies in large part to K1 fiancée petitions.