9 FAM 102.8-1(D)  PROXY MARRIAGES (CT:VISA-1774;   05-24-2023) A marriage where one or both parties was not present (proxy marriage) is not valid unless the marriage was consummated. (1)  Consummated:  For the purpose of issuing a visa to a “spouse,” a proxy marriage that has been subsequently consummated is valid as of the date of the proxy ceremony.  A proxy marriage consummated before the proxy ceremony is not a marriage for visa adjudication purposes unless it has been consummated subsequently. (2)  Unconsummated:  A proxy marriage that has not been subsequently consummated does not create or confer the status of “spouse” pursuant to INA 101(a)(35).  For IV cases, a party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e).  A proxy marriage celebrated in a jurisdiction recognizing such marriages is generally valid another marriage in the United States is not necessary if the applicant is admitted to the United States under INA provisions other than as a spouse.  See 9 FAM 502.7-3(B) for additional information on fiancé classifications.

Definition of Marriage in the INA INA §1101 (35) The term “spouse”, “wife”, or “husband” do 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 shall have been consummated. Validity of Marriage a. Law of Place of Celebration Controls:  The underlying principle in determining the validity of the marriage is that the law of the place of marriage celebration controls (except as otherwise noted below).  If the marriage was legally performed in the place of celebration and legally recognized, then the marriage is valid for visa adjudication purposes.  Any prior marriage, of either party, must be legally terminated before the later marriage. b. Void for Public Policy:  Certain marriages that are legal in the place of celebration but are void under state law as contrary to public policy, are not valid for visa adjudication purposes. (1)  Polygamous Marriages:  Polygamous marriages are not recognized as a matter of federal public policy.  See Matter of H-, 9 I&N Dec. 640 (BIA 1962).  Any prior marriage, of either party, must be legally terminated before the later marriage. (2)  Marriage Between Relatives:  Certain marriages between relatives may be void because of public policy concerns even if the place of celebration recognizes the marriage. (a)  A marriage that is void under state law, such as a relative marriage, may be recognized as valid by the state of intended immigration. (b)  The legal thresholds vary state by state.  For example, first cousins may not marry in Michigan and such marriages in Michigan are void from their inception (M.C.L.A. 551.3 (2010)).  A 1973 ruling of the Michigan Supreme Court, however, found a marriage between first cousins that took place in Hungary **was nevertheless valid in Michigan.  See Toth v. Toth, 50 Mich. App 150, 212 N.W.2d 812 (1973). (c)  In any case where you suspect that a marriage may not be valid for visa adjudication purposes because the parties are biological relations such as siblings, uncle-niece, or first cousins, you may request an AO from L/CA. (3)  Minor Marriage:  Certain underage marriages involving an individual under the age of 18 may be void because of public policy concerns even if the place of celebration recognizes the marriage as valid. (a)  Legal thresholds for underage marriage vary state by state.  Some states may recognize a marriage performed in another jurisdiction even if state law would not allow the parties to enter a marriage in that state, while other states would not recognize such a marriage because it violates the public policy of the state.  In any case where you suspect that a marriage may not be valid in the state where the applicant intends to reside because one or both of the parties are underage or were potentially underage at the time of marriage, you should request an AO from L/CA. (b) Legal thresholds for sexual consent also vary state by state.  If you find that the applicant intends to reside in a state where the marital relationship will likely result in the commission of unlawful activity (i.e., statutory rape where there is no exception for marriage), you should request an AO from L/CA to determine if the visa should be refused under INA 212(a)(3)(A)(ii) based on intent to engage in unlawful activity. (c) In the context of IV processing, a minor can successfully petition for a spouse.  However, family-based IVs require that the petitioner submit an I-864, Affidavit of Support Under Section 213A of the INA.  INA 213A(f)(1)(B) requires that a petitioner must be at least 18 years of age to qualify as a “sponsor” on an I-864.   In any case involving a spousal petitioner who is under the age of 18, you should refuse the visa application under INA 212(a)(4)(A) as a public charge as the petitioner cannot properly submit the required I-864.  While a joint sponsor may be used in cases in which the petitioner does not meet the income requirement found at INA 213A(f)(1)(E), the age requirement cannot be overcome with a joint sponsor.  If the petitioner later reaches age 18 and meets all other requirements, the ineligibility can be overcome.  If the petitioner will turn 18 within a year after the initial adjudication, then no additional fee or application is required.  If the petitioner will turn 18 more than a year after the initial adjudication, then a new fee and visa application would be required.  See 9 FAM 504.11-4 and 9 FAM 601.14. (d)  If the petitioner or beneficiary indicates to you that they are being forced to marry against their will, you should reach out to the VO/F post liaison for guidance.  The Visa Office works closely with USCIS on cases involving allegations of forced marriage and can provide case-by-case guidance to you while working to protect the confidentiality of the party that disclosed the forced marriage.  In instances where you believe the underage applicant is being married against their will, you should conduct a more in-depth interview with the applicant, preferably in a privacy window.  You should obtain a statement from the applicant detailing the circumstances of the marriage and their intention and willingness to enter the marriage.  Regardless of the desires of the applicant, if you suspect forced marriage, you should send an AO to L/CA for confirmation of the legality of the marriage and potential return of the petition to USCIS on that basis.  If a forced marriage case results in a consular return, and if the applicant or beneficiary inquires, you must only communicate that the petition has been returned to USCIS.  See also 9 FAM 502.2-1(E) on IV forced marriages; 9 FAM 502.7-3(C)(5) on forced K visa relationships; and guidance on writing petition revocation memoranda with information not to be released to the petitioner at 9 FAM 504.2-8(B)(4), 9 FAM 601.13-2(E). What Qualifies as a Marriage? (CT:VISA-1774;   05-24-2023) 9 FAM 102.8 The term “marriage” is not defined in the INA; however, the meaning of “marriage” can be inferred from INA 101(a)(35), which defines the term “spouse.”  Relationships entered for purposes of evading immigration laws

Definition of a Child According to INA 101(b) (1) and 8 U.S.C. 1101(b)(1), a child is defined as: an “unmarried person under 21 years of age who is a: WHAT ABOUT STEP-CHILDREN? Step Child [See INA 101(b)(1)(B), 8 U.S.C. 1101(b)(1)(B)]: A step-child is a child as long as the step-child was under 18 when step-relationship was created, meaning that the natural parent and step-parent were married before the child turned 18 years of age: In situations where the natural mother and/or father is an LPR, but the step-parent is a USC, the child can avoid family 2D preference backlog through the step-parent’s petition. Example: Michael is a U.S. citizen and Mary is an alien from France. Mary has a child, named Joe who is younger than 18 years of age, from a previous marriage that she has custody over. Therefore, if Michael and Mary get married before Joe turns 18 years of age, Michael will be able to establish a legal step-parent/child relationship with Joe. When Does a Step-Child Relationship End? Normally, a step-relationship terminates when a marriage ends, especially if it ends in divorce.  [Matter of Simicevic, AFM 21.4 (d)(2)(B)] However, under certain circumstances, a step-relationship may continue after the death of the natural parent or even after the legal separation or divorce of the step-parent and the natural parent if there is an ongoing relationship between the step-parent and the step-child.  If the marriage ends in annulment, however, the step relationship is deemed to have never existed because, legally, the marriage never existed. [Matter of Pagnerre, Matter of Mowrer, and Matter of Mourillon]. Adopted Child Children adopted before 16, and having 2 years legal custody and residence with adopting parent.  However, if the family has already adopted a sibling, the second brother or sister who is adopted may be under 18 at time of adoption. In order for an adopted child to be considered under Immigration Law, the adoption must occur before the child turns 16 years of age, and must be coupled with 2 years of legal custody with the adopting parent and reside with the adopting parent for 2 years. The two year custody and residency requirements may be satisfied before or after the legal custody or adoption, by either parent.  Meeting the two year legal custody requirement requires either the final adoption decree or official documentation in the form of a custody award by the court or recognized government entity.  This requirement must be satisfied through an official action at a recognized government entity between the natural parent(s) and the adopting parent. Informal documents, such as sworn affidavits, are insufficient. The natural parents of an adopted child cannot obtain immigration benefits through the natural child if the child was adopted in accordance under the provisions listed above.  This is different than step-children, however, who can petition for their natural parent. If the adopted child did not and cannot acquire any immigration benefits through the adoptive parents, the natural parents may be able to petition for the child.  The adopted child, also, cannot petition for their natural siblings if the child was adopted in accordance to the provisions listed above. However, if the relationship between the adopted parent and the child end, then the custody of the child goes back to the natural parent or to the state/country if the child was an orphan prior to the adoption. The Hague Convention The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption [8 C.F.R. 204.3(k)(2)]: The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-country Adoption is an international convention dealing with international adoption, child laundering, and child trafficking.  The objectives of the convention were to (1) establish safeguards to ensure that inter-country adoptions take place in the best interests of children and with the respect for the child’s fundamental rights; (2) establish a system of co-operation amongst the participating countries to ensure that those safeguard are respected; thus, preventing the abduction, sale of, or traffic of children; and (3) to secure the recognition of the adoptions made in the participating countries in accordance with the convention.  The conditions of the Hague Convention apply to adoptions that occur after April 1, 2008.

A principal refugee admitted to the United States within the past 2 years or a principal asylee who was granted asylum within the past 2 years, may use the Form I-730 to petition for a spouse or child. Petitioning in this context meaning to request that a spouse or an unmarried child under 21 years of age join the principal asylee in the United States. In certain circumstances, unmarried adult sons/daughters over 21 years of age may be eligible for following-to-join immigration benefits if they fall within the protections set forth in the Child Status Protection Act. In some cases, USCIS may grant a waiver of the 2-year filing deadline for humanitarian reasons as explained in the Instructions for Form I-730. Catholic Legal Immigration Network, Inc. made a guide for Form I-730 that you can find here. Just keep in mind that the guide is from 2019 and there have been some changes to policy and procedure since then. Double check the USCIS website to make sure you read the information on the USCIS I-730 information page. Also, a link to the official USCIS instructions is provided below.  Form Instructions I-730 FILLABLE I-730 LEARN MORE

Things can happen to families while the beneficiary of a visa petition is waiting for their priority date to become current. For example, spouses can divorce or die, children may turn 21, children may marry or divorce, or an LPR petitioner may become a citizen. When someone’s family status change results in the principal beneficiary qualifying for a newvisa category, the visa petition is automatically converted into the new visa category. If theinitial visa petition was in a preference category, the priority date remains unchanged. This iscommonly referred to as “retention” of the priority date. If the initial petition was an immediaterelative petition, then the date that petition was filed becomes the priority date in the newpreference visa category. This may result in the beneficiary having a much longer wait in orderto immigrate based on the new preference category, like in the case of a child who gets married and becomes an adult son or daughter. However, in certain circumstances the waitcould get shorter, such as when an LPR petitioner parent naturalizes and their under 21-year-old child goes from being in a preference category to an immediate relative. When a New Petition May Be Required to Recapture a Priority Date Based on the language of the DHS regulations, as well as dicta in the Supreme Court decision in Cuellar de Osorio, there is a reasonable argument that derivative beneficiary children of LPRs who naturalize, automatically convert to immediate relative beneficiaries, without a new petition being filed by their newly naturalized parent. It is clear that the BIA in Matter of Wang overruled one regulation which required a new petition for aged out derivatives moving from the F2A to the F2B category.23Dicta in Cuellar de Osorio also noted that “automatic conversion[s]” never involved new petitioners, and “entailed nothing more than picking up the petition from one category and dropping it into another for which the alien now qualified.” Exceptions to the Revocation of Visa Petitions Widow/er of U.S. Citizen An I-130 visa petition will automatically convert to a widow/er self-petition (I-360) in the event of a US citizen petitioner’s death. A widow/er may also file a Form I-360 self–petition even if no I-130 was ever filed by the U.S. citizen deceased spouse. To qualify, the widow/er must meet the following criteria: • Must file the self-petition within two years of the U.S. citizen spouse’s death (unless an I–130 spouse petition is already on file), • Must prove that the marriage was a good-faith marriage, • There was no divorce or legal separation at the time of the U.S. citizen spouse’s death. The widow/er will be treated as an immediate relative. However, unlike other immediate relative petitions, widow/er petitions may include as derivative beneficiaries any children of the widow/er who were under 21 when the original petition (I-130 or I-360) was filed. Those who qualify for this relief are not subject to the affidavit of support requirement to overcome the public charge ground of inadmissibility INA § 204(I) INA § 204(l) provides relief to several categories of immigrants where the petitioner or principal beneficiary has died and is not limited to cases where the petitioner was a U.S. citizen. It is also not limited to the beneficiaries of family visa petitions. It includes, for example, qualifying derivative beneficiaries of I-140 employment-based petitions, asylum applications and refugee/ asylee derivative petitions, and T or U visa petition derivative beneficiaries. It applies to the beneficiaries of family-based visa petitions where either the petitioner has died, or the principal beneficiary has died, and the petition is still pending or approved. These are the criteria to qualify under INA § 204(l): Humanitarian Reinstatement Humanitarian reinstatement is a completely discretionary remedy for reinstating a petition where a petitioner has died. It applies only to previously approved petitions where the petitioner has died. Derivative beneficiaries are not eligible for this relief when a principal beneficiary has died. To initiate humanitarian reinstatement, the beneficiary must: Impact on Derivatives Some derivative beneficiaries lose out when the principal ages out, marries or divorces. Unless a derivative beneficiary can convert to another preference category when they age out, marry, or divorce, they will lose the priority date of the original petition. The only exception is where the CSPA protects an aged-out beneficiary. The petition itself remains valid as to the principal beneficiary and derivatives who have not lost their status. Automatic Revocation of Visa Petitions Certain circumstances can result in the automatic revocation of a visa petition, including some changes in family status. In such cases, the priority date is lost, though in some limited circumstances where the visa petition can be reinstated or other remedies may exist. Opt-Out Provision When an F2B beneficiary’s LPR parent naturalizes, that beneficiary automatically converts to a first preference immigrant. However, under the CSPA, the beneficiary may opt out of becoming a first preference immigrant and remain in F2B status if the waiting period for first preference exceeds the waiting period for F2B status. Unlike the adjusted age provision of the CSPA, there is no deadline for making the choice between first preference and F2B status. When a New Visa Petition Can Retain/Recapture the Priority Date of a Previously Filed Visa Petition Sometimes a visa petition gets misplaced by USCIS and a new one must be filed, or other circumstances occur that result in the filing of a new visa petition. The rule governing when a priority date can be kept is that the original petition must have been approved, and you must have the same petitioner, the same beneficiary, and the same visa category.50 This phenomenon has sometimes been referred to as “recapturing” the priority date of the original petition, as opposed to “retention” of the priority date, though, as noted above, the two terms are used interchangeably and basically mean the same thing. If the petitioner and beneficiary have proof that the original visa petition was approved, including proof of the priority date, then the new visa petition will have the same priority date

How will USCIS decide who is invited to request to enter the United States under the family reunification parole processes? This decision will be based on multiple discretionary factors, including the number of requests that can be efficiently processed and the amount of time a beneficiary may need to wait before an immigrant visa becomes available to them. Invitations will be sent on a rolling basis. Who is eligible for consideration for parole under the family reunification parole processes? The family reunification parole processes are available by invitation only to certain petitioners whose Form I-130, Petition for Alien Relative, filed on behalf of principal beneficiaries who are nationals of Colombia, El Salvador, Guatemala, or Honduras, have been approved.  Invitations will identify the principal beneficiary and their immediate family members. This process allows U.S. citizen and lawful permanent resident petitioners to initiate a process for their eligible beneficiaries to be paroled into the United States while they wait for their family-based immigrant visas to become available. For more information, see the Eligibility section of www.uscis.gov/frp. How long is the period of parole under the family reunification parole processes? Individuals granted parole under these processes will generally be paroled into the United States for a period of up to three years, subject to applicable medical and vetting requirements. QUESTIONS RELATING TO SUPPORTERS AND FILING FORM I-134A How are invitations being issued? The Department of State’s National Visa Center (NVC) will email the invitation to petitioners at the email address of record for the approved Form I-130. If there is no email address of record, the NVC will mail the invitation to the petitioner’s mailing address of record. Please make sure the NVC has your current contact information and mailing address. To update your contact information or address, contact the NVC through their Public Inquiry Form.  Invitations will be issued on a rolling basis, based on U.S. government operational capacity, the expected period of time until the principal beneficiary’s immigrant visa becomes available, and consistency to ensure process integrity. If you have not yet received an invitation, you may receive an invitation in the future.  How can attorneys fill out Form I-134A for their clients who would like to request to be a supporter and initiate an FRP process on behalf of a beneficiary? There is no option at this time for an attorney or accredited representative to use an online representative account to file Form I-134A on behalf of a petitioner or submit travel authorization information on behalf of a beneficiary after confirmation of a Form I-134A. I am an attorney assisting a supporter with Form I-134A. If the petitioner fills out the preparer declaration on the form, can I get information about the petitioner or beneficiary? No. The preparer declaration simply reflects that you helped an individual complete the declaration (form filling). If you are an attorney or accredited representative, you must submit a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, to USCIS if you wish to receive information about your client’s (petitioner’s) Form I-134A. We do not currently allow representatives to complete Form I-134A online on behalf of a petitioner using a representative account. However, a representative who has submitted a valid Form G-28 to USCIS separately through a representative account may inquire about their client(s)/supporter(s) case by contacting the USCIS Contact Center. Can I submit Form I-134A by paper? No. Form I-134A may only be filed online through your USCIS online account. Can I submit Form I-134A on behalf of my family member if I live outside the United States? No. The family reunification parole processes are available by invitation only to petitioners whose Form I-130, Petition for Alien Relative, filed on behalf of principal beneficiaries who are nationals of either Colombia, El Salvador, Guatemala, or Honduras, have been approved. The invitation will list the principal beneficiary and their immediate family members. At this time, invitations will not be sent to petitioners with addresses outside the United States. Is there a cost to file Form I-134A? No. There is no fee to file Form I-134A. Neither you nor the beneficiary is required to pay the U.S. Government a fee to file the Form I-134A, be considered for travel authorization, or parole. Beware of any scams or potential exploitation by anyone who asks for money associated with participation in this process. I want to submit Form I-134A on behalf of a family of 4. Can I file one Form I-134A for the entire family? No. You must file a separate Form I-134A for each beneficiary, including minor children. Can I agree to support more than one beneficiary? Yes. If you received an invitation, you may submit a separate Form I-134A for the principal beneficiary and a separate Form I-134A for each derivative beneficiary. There is no limit on how many beneficiaries you may agree to support, but we will determine whether you have the financial ability to support all beneficiaries you have agreed to support for the duration of their parole period, which is up to three years. Each Form I-134A must be submitted using the petitioner’s same USCIS online account. It is also permissible to have co-supporters join you to support all the beneficiaries. Please see Q17. What if a derivative beneficiary was not included on the approved Form I-130? Can I submit a Form I-134A on their behalf as a derivative beneficiary? If a principal beneficiary married or had a child after we approved the underlying Form I-130, you may also file Form I-134A to request to be a supporter and initiate the FRP process for the principal beneficiary’s spouse or child under age 21 (often referred to as add-on derivatives). Certain circumstances may affect eligibility. The invitation you receive instructing that you may file Form I-134A will not list the add-on derivatives because they were not listed on the underlying Form I-130 you filed and USCIS approved. However, you may still file Form I-134A requesting to be a supporter and initiate the FRP process for the add-on derivatives of the principal

NOTE: Only family preference category visas have derivative beneficiaries. Immediate relative petitions do not have derivatives. Eligibility Criteria for Adjustment as Derivative Applicant In order to be eligible for a Green Card as a derivative applicant in a family-based preference category, you must meet the following requirements: