Successful online wedding before K1 visa issued, now waiting for AOS (split topic)

[Dashinka 26,114]

3 minutes ago, S2N said:

Honestly it’d make a fascinating BIA case to read, but there’s no one who wants their journey to be a precedent case…

This is a great point!  I know I prefer a much lower profile!   

[S2N 424]

1 minute ago, Dashinka said:

This is a great point!  I know I prefer a much lower profile!   

The only way to get there is if USCIS and an immigration judge rule against you… interesting as it might be for us nerds who like this stuff to read, I’d never suggest anyone try to make it through with edge cases. Sounds pretty unenjoyable even if you win.

[whackytech 2]

Looks like some information was lost when this was split into it's own topic. I'll try and post what we did. 

 

This was not something we did on purpose and was not our intended path when we first met. We intended to get married when I was in the Philippines, but time and red tape prevented that from happening. When I got back to the US we decided to get married online, not realizing the ramifications. At first we thought we could just file an I-130. I started my research and realized we were wrong. I stumbled on a post that got me started on the K-1 visa journey. The post is old so I did more research confirming if this process was still valid. 

 

 

 

First, we see the definition of spouse as written in immigration law. 

 

“The term ‘spouse’… does not include a spouse… by reason of any marriage ceremony where the contracting parties… are not physically present… unless the marriage shall have been consummated.”
— INA § 101(a)(35), 8 U.S.C. § 1101(a)(35)

 

Next we find in the FAM:

 

“A proxy marriage that has not been consummated does not create or confer the status of ‘spouse’ pursuant to INA 101(a)(35). For IV [immigrant visa] cases, a party to an unconsummated proxy marriage may be processed as a nonimmigrant fiancé(e).”
— 9 FAM 102.8-1(D), Proxy Marriages (official FAM link)

 

The wording in the FAM is what I based my whole process on. There were other things I read that confirmed what I was doing was the best way forward for us.  Attached is the letter I included with my filing. I filed the I-129F explicitly telling them we got married online and included the marriage certificate. We didn't lie or hide anything during this process. I don't believe the AOS will be affected. I'm using a rule they wrote. 

 

I hope this clears things up.

 

Thanks,

 

 

 

ProxyLetter.pdf

[Boiler 47,920]

Consumating the marriage would have been a more obvious option 

[S2N 424]

The FAM language makes it safer, but it’s worth pointing out that FAM is non-binding on CBP or USCIS as they aren’t under the jurisdiction of the Secretary of State. Especially as K-1s are non-immigrant visas, CBP could refuse to honor it if the port of entry doesn’t think it’s a valid use of that class of admission.

 

I’d classify this with the non-existent “90-day rule” of FAM procedures that you shouldn’t assume DHS will automatically agree with. Especially in the current environment.
 

Hopefully/probably it’ll be fine, but wouldn’t be something I’d recommend to anyone. Spousal/Fiancee immigration has three or four steps:

1) proving entitlement to sponsor an intending immigrant (USCIS, I-130/I-129F, non-discretionary)

 

2) applying for the visa and proving the relationship and no bars to admissibility (Department of State, discretionary)

 

3) Seeking admission to the U.S. under a specific class of admission (CBP, discretionary)

 

4) K-1 only: Adjustment of Status (USCIS, discretionary except for specific refugee cases)

 

The government can say no at any of the stages so it’s usually best not to give any of the agencies reason to second guess what the one before it did. Like I mentioned before, the risk isn’t with AOS since AOS cures any defect upon procedurally correct admission into the US even if the admission was in error on the part of CBP.

 

The risk is that CBP has a different interpretation of the law than the State Department does. That might be a low risk, but it’s also not one I’d be comfortable advising anyone to take, especially in the current climate.

Edited August 19 by S2N