K1 - RFE - Civil Union

[AJ2019 58]

I'm not sure which Spain law/code you were looking at, but according to this website and EU, a civil union for legal purposes = a marriage.

https://balcellsgroup.com/civil-partnership-in-spain-legislation/

Civil marriages in Spain are based on the application of the 2/2003 law. 

....

If you have been living together uninterruptedly for more than 2 years, or the relationship has been formalized through a notary, or there is a common child, then the law recognizes your situation as one of a civil partnership.

Although for many legal purposes it is quite similar to marriage, it is a slightly less strong type of union.

https://europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm

 

Civil unions and registered partnerships are considered equivalent or comparable to marriage in some EU countries.

All countries that allow same-sex marriages generally recognise same-sex registered partnerships concluded in other countries.

 

http://www.divorceinspain.net/marriage-procedures/register-a-civil-partnership-in-spain/

 

Are civil partnerships the same as marriage?

From a legal point of view both legal forms are the same as they are aimed to protect the rights and duties of the parties entering into such union. By formalizing your long term cohabitation, both parties will gain access to inheritance, property rights and custody if applicable. The only difference between these legal forms is that same sex couples are not entitled to celebrate legal marriage but they do can register a civil partnership.

 

Edited July 26, 2020 by AJ2019

[geowrian 22,335]

Option 1) Fight the USCIS determination that you are not free to marry due to the existing partnership. Be prepared to reference specific aspects of law...meaning likely needing an attorney.

Then be prepared for scrutiny of it again at the consulate...and you have no real recourse if they don't find in your favor again.

This will likely add some decent time and a pretty penny to the process.

 

Option 2) Legally marry and start over with the spousal visa process.

 

4 hours ago, TGregorio said:

Based upon what you said, it is clear to me that you and your fiancé are not married yet. It is my understanding that USCIS doesn't believe that you are married yet either, if so, they probably would have asked to see your marriage certificate.  😆 

USCIS would not ask for a marriage certificate for an I-129F, even if they knew you were married. They would only ask for a divorce decree, or other document demonstrating that the union was legally dissolved (death certificate, annulment, etc.).

 

And that's exactly what happened here:

Quote

explain this documentation and submit evidence that this civilly registered partnership has been terminated" and that we are free to marry. 

 

[HRQX 4,145]

8 hours ago, KLL said:

After all this would mean first getting married (which takes time and money)

The marriage process in Gibraltar is more straightforward than the process in Spain: http://www.visitgibraltar.gi/getting-married

Iceland and Denmark have also opened to travelers from Spain.

https://guidetoiceland.is/history-culture/getting-married-in-iceland

https://familieretshuset.dk/en/your-life-situation/your-life-situation/international-marriages/if-you-wish-to-get-married-in-denmark

[SalishSea 16,801]

9 hours ago, KLL said:

You are right, I can not expect the office to be an expert on every country etc, but I would expect maybe they would have a simple list that shows in which countries these relationships are considered marriage, just as they have a list that shows in which countries same sex marriages are recognized etc.

The point is, the marriage has to be legitimately recognized in the US state where the couple is to live, and/or not an impediment to concluding a valid marriage.

 

This is why things like polygamy and first cousin marriage may be recognized in other countries, but for the purposes of US immigration, generally are not.

[Melc 138]

3 hours ago, AJ2019 said:

I'm not sure which Spain law/code you were looking at, but according to this website and EU, a civil union for legal purposes = a marriage.

https://balcellsgroup.com/civil-partnership-in-spain-legislation/

Civil marriages in Spain are based on the application of the 2/2003 law. 

....

If you have been living together uninterruptedly for more than 2 years, or the relationship has been formalized through a notary, or there is a common child, then the law recognizes your situation as one of a civil partnership.

Although for many legal purposes it is quite similar to marriage, it is a slightly less strong type of union.

https://europa.eu/youreurope/citizens/family/couple/registered-partners/index_en.htm

 

Civil unions and registered partnerships are considered equivalent or comparable to marriage in some EU countries.

All countries that allow same-sex marriages generally recognise same-sex registered partnerships concluded in other countries.

 

http://www.divorceinspain.net/marriage-procedures/register-a-civil-partnership-in-spain/

 

Are civil partnerships the same as marriage?

From a legal point of view both legal forms are the same as they are aimed to protect the rights and duties of the parties entering into such union. By formalizing your long term cohabitation, both parties will gain access to inheritance, property rights and custody if applicable. The only difference between these legal forms is that same sex couples are not entitled to celebrate legal marriage but they do can register a civil partnership.

 

Parejas de hecho are not the same as a civil partnership. The reason being that you can enter into a pareja de hecho whilst still being legally married, but separated, with someone else. (at least in Madrid, as the autonomous regions are the authority that can allow pareja de hecho registers—so any references to national law do not apply here.) 
 

This prevents it from being accepted as equivalent to full civil partnership in most EU countries. 
 

@HRQX definitely agree on Gibraltar. We got married there while we were living in Spain as it was much simpler than getting everything translated and apostilled for Spain. Gibraltar does not require  apostilles. 

Edited July 26, 2020 by Melc

[SalishSea 16,801]

4 hours ago, jan22 said:

I would not cancel the civil relationship and submit documentation of that to USCIS at this point.  Doing so would seem to lend credence to USCIS's idea that this relationship would somehow prevent you from getting married.  And, since the cancellation would occur after you had already submitted the petition, the petition could likely then be denied since you were apparently not free to marry at the time the petition was filed.  I know that's roundabout logic but...

 

I would focus on the first part of the request and "explain this documentation", including a thorough explanation of the purpose of entering into such a relationship and the Spanish law covering it -- with emphasis on the ability of either party in the relationship to marry without taking any further action, i.e., emphasizing that each individual is free to marry at any time while in such a legal relationship, either to each other or someone else.  I would end the explanation with some kind of statement about not having terminated the civil relationship because a) you're no longer in Spain and it, therefore, no longer has any validity as it Is not recognIzed by countries outside Spain, and, b) again stating it is not a legal impediment to being free to get married.

We have seen VJ members be denied at both the petition/visa stage due to having entered into common-law marriages in other countries, with no way to dissolve or document a dissolution of such.

[jan22 2,898]

2 hours ago, Jorgedig said:

We have seen VJ members be denied at both the petition/visa stage due to having entered into common-law marriages in other countries, with no way to dissolve or document a dissolution of such.

True -- but if the explanation of the Spanish Iaw is correct as presented by the OP, this can clearly be shown not to be a common-law marriage.  That is not true of many of the "traditional" ceremonies or common-law unions usually discussed here.

[AJ2019 58]

15 hours ago, Melc said:

Parejas de hecho are not the same as a civil partnership. The reason being that you can enter into a pareja de hecho whilst still being legally married, but separated, with someone else. (at least in Madrid, as the autonomous regions are the authority that can allow pareja de hecho registers—so any references to national law do not apply here.) 
 

This prevents it from being accepted as equivalent to full civil partnership in most EU countries. 
 

@HRQX definitely agree on Gibraltar. We got married there while we were living in Spain as it was much simpler than getting everything translated and apostilled for Spain. Gibraltar does not require  apostilles. 

I'm curious to see what you were looking at that shows you can still be legally married and still get a Parejas de hecho.

 

Looks like in Madrid, you have to be single, divorced, ... to obtain one. It's a pretty documented process. I guess this goes back to the old saying, if it looks like a duck and quacks like a duck it's a duck. 

 

Is it possible, the Spain legal authority gave you and your fiancée a incorrect version of what you were seeking? Or possible to nullify or void it? Maybe a Spain attorney can help?

 

https://spainguru.es/2017/04/09/how-to-apply-for-pareja-de-hecho-civil-union-in-spain/

 

Pareja de hecho means something like “official couple” and is roughly the equivalent of a “civil union.” It gives you many of the advantages of being married, without many of the obligations.

 

The requirements for the pareja de hecho vary by community, so verify what the requirements are in the area where you will be filing.  In Madrid, the requirements are as follows:

1. • Be over the age of 18.

• • Have lived together for 12 uninterrupted months. In Madrid, this is confirmed through the written statement signed by your witnesses.

• • At least one member of the union must be empadronado in the Community of Madrid. You do not have to be be empadronados together.

• • • Be single, divorced, legally separated or widowed.
  • You must not be related.

• • • Also, you must not be already “pareja-ed” with someone else.
  • You must be mentally capable of entering into the union.

[Melc 138]

33 minutes ago, AJ2019 said:

I'm curious to see what you were looking at that shows you can still be legally married and still get a Parejas de hecho.

The law itself Ley 11/2001, de 19 de diciembre, de Uniones de Hecho de la Comunidad de Madrid:

https://www.boe.es/buscar/doc.php?id=BOE-A-2002-4374

Article 2.1.b. only states that married people who are not in a 'legal separation' are not allowed to be in a Pareja de hecho. 

Legal separation, also known as judicial separation, is a legal process by which married people can formalise a separation while remaining legally married. 

 

I do notice you seem to be using mostly secondary, English sources, rather than the law & governmental sources itself. They appear to be simplifications that don't quite address the legal nuances. 

Within Spain, a Pareja de Hecho is very similar to international civil partnerships. However, abroad they are rarely recognised. In that sense it is similar to common law marriages and other unions of the sort. 

 

OP can disband the Pareja de Hecho, or get married—which will automatically dissolve the union. If OP needs a document, they will have to apply to disband it. Otherwise you can get married and switch to CR1. 

Edited July 27, 2020 by Melc

[Boiler 43,538]

Many moons ago, I used to review Insurance Documentation and unusually had a Spanish document come through, so we had it translated and I was expecting issues but not to the extent we had, the whole concepts were so alien that the ENglish translation was useless. Spain has a very different legal past.

[KLL 7]

Thanks for the feedback everyone.

 

I have looked further into this and have reviewed the actual law, and indeed, pareja de hecho in catalunya (where I was living and where this agreement was executed) is not considered marriage, and I found some very interesting aspects about it including:

 

Section two

Extinction of the stable couple

Article 234-4

Causes of extinction

1. The stable couple becomes extinct for the following reasons:

a) Cessation of cohabitation with rupture of the communal of living.

b) Death or declaration of death of one of the cohabitants.

c) Marriage of any of the cohabitants.

d) Common agreement of the cohabitants formalized in a public deed.

e) Will of one of the cohabitants reliably notified to the other.

2. The extinction of the stable couple implies the revocation of the consents and powers that any of the cohabitants has granted in favor of the other.

 

additionally:

 

Article 234-1

Stable couple

Two people living in a community similar to marriage are considered a stable couple in any of the following cases:

a) If the cohabitation lasts more than two uninterrupted years.

b) If during cohabitation, they have a common child.

c) If they formalize the relationship in a public deed.

 

So essentially if a couple lives together for 2 years, or has a child while living together or officially formalizes the relationship (my case) they are considered to have a stable relationship.  

 

Also, not only does it not prevent you from marrying, but it is dissolved in the case that one member of the couple marries, if the couple stops living together and stops having a relationship,  or even if one member reliably notifies the other.  As you can see this is nothing like a marriage.  In fact,with this arrangement, the couple can not file taxes jointly, as this is a State (national) law matter and the partnership is filed according to local law of Catalunya.

 

So, the US gov states clearly that "civil unions" are recognized as marriage by the US only if they are recognized as marriage in the country in which it was executed.  This quite clearly is not recognized as marriage in Catalunya/Spain.  I knew this at the time, which is why I included the document in the first place.  

 

The problem is that I somehow need to prove this to them.  Luckily I found out that I can dissolve the partnership via an online portal, which I think I will try and do tomorrow.  It is much easier to get into/out of this type of an agreement than a marriage, another fact that shows that this is not recognized as marriage.  The very fact that the law establishing this procedure explicitly states that the relationship is dissolved if one part is married, proves that this agreement does not prevent one from marrying.

 

I think what I may do is combine both approaches.  One one hand dissolve the relationship, and provide proof of that. I can additionally include a copy of the law which states that this does not prevent me from marrying to show that despite the fact that I did dissolve the relationship, it never prevented me from marrying  in the first place.

 

At the same time, I have noticed that many here seem to agree that K1 is not the way to go generally if you do not have to (for reasons of separation).  I did look into the aspect of the green card coming later in time and also not being able to work for a period upon entering the country.  Additionally, the increased cost was a fact.  But the reason we chose K! is that we wanted to move to the US as soon as possible, even if it meant my wife having to be there for a short time without the ability to work.  

 

I think people misunderstood when I said marriage in Spain would take 6 months.  The probelm is not that taking 6 months is such a big deal, it is that the 6 months to get married plus the additional time CR1 would take combined created an extra 1 year delat compared to K1.  Additionally, understand this was pre-covid so there was no way of knowing that k1 would be suspended and cr1 would not be etc.

 

One poster here stated something to the effect that if I dissolve the relationship, that may show that I was unable to marry at the time I sent the I-129F, therefore disqualifying me.  This makes me nervous, despite the fact that dissolving the relationship according to their request does not in fact prove that I was unable to marry a the time the application was filed.

 

At this point I am now starting to question if I should still go with K1 despite the fact that I am very close to having this complete.  The idea of starting from scratch and taking another 1-2 years for the process to be completed, when I see it as being very close at this point through K1 seems daunting.  If not for this RFE I feel like we would soon be arranging a visa interview and therefore we would be almost home free.  Another added factor is the suspension of K1 visas due to covid.  So I wil need to research ths before making a final decision.

 

Thanks for the feedback and sorry for the long winded post.  Hopefully someone at some point can gain something from the discussion.

 

 

 

[geowrian 22,335]

12 minutes ago, KLL said:

The problem is that I somehow need to prove this to them.  Luckily I found out that I can dissolve the partnership via an online portal, which I think I will try and do tomorrow.  It is much easier to get into/out of this type of an agreement than a marriage, another fact that shows that this is not recognized as marriage.  The very fact that the law establishing this procedure explicitly states that the relationship is dissolved if one part is married, proves that this agreement does not prevent one from marrying.

 

I think what I may do is combine both approaches.  One one hand dissolve the relationship, and provide proof of that. I can additionally include a copy of the law which states that this does not prevent me from marrying to show that despite the fact that I did dissolve the relationship, it never prevented me from marrying  in the first place.

I get what you're saying, but be aware anything that you do now won't impact the petition already filed. You must have been considered free to marry at the time of filing all the way through entry on the visa.

 

So no harm in doing what you plan...just be fully aware that the only argument that may satisfy USCIS to approve the petition is that it was never an impediment to getting married in the first place. Personally, I'd focus my efforts entirely on that.

 

That said, if you are going to argue statements of law with USCIS, I highly suggest doing so with the assistance of a qualified attorney. The information as presented in your comment is likely not going to convince legal counsel at USCIS of anything. Heck, if there is a legitimate dispute of legal fact, policy would be to submit it for an advisory opinion. My concern is this may just delay the decision and still not be a favorable decision. A qualified attorney would be better suited to address questions of law and present clarification of it, IMO.

 

Quote

One poster here stated something to the effect that if I dissolve the relationship, that may show that I was unable to marry at the time I sent the I-129F, therefore disqualifying me.  This makes me nervous, despite the fact that dissolving the relationship according to their request does not in fact prove that I was unable to marry a the time the application was filed.

They are correct. As noted above, you must be considered free to marry from the date of filing the I-129F all the way through entering on the K-1 visa. So the only viable path is showing that you were free to marry, not that you have since become free to marry under their interpretation.

Edited July 27, 2020 by geowrian

[KLL 7]

@geowrian Thanks for this advice, this makes sense to me.  Of course now I regret having submitted this form in the first place, but I honestly do believe that this was no impediment to marriage, and the notary agrees, I spoke with them today.  I just need a way to show that.

 

 

 

[Pinkrlion 2,610]

USCIS recognizes Common Law Marriage as being Married. 

[KLL 7]

@Pinkrlion  You say this, but I pasted a direct quote from travel.state.gov that says the USCIS that says that it is determined by how it is viewed in the country where it was executed.  Do you have a source for this ?  I am genuinely interested in seeing that because I looked everywhere before I filed and the only thing I saw is :

 

"At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes."

 

Or on USCIS website:

 

"USCIS does not recognize the following relationships as marriages, even if valid in the place of celebration:

 

"Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration"

 

How could I think any different if this is what their own website?