Heightened Scrutiny for I-130 Spousal Petitions Involving Minors06 Jun 2019
The U.S. Citizenship and Immigration Services (USCIS) has updated the Adjudicators Field Manual (AFM) with guidance regarding the processing of marriage-based green card applications that involve a U.S. sponsor or foreign national spouse under the age of eighteen (18). As of April 21, 2019, certain form I-130 spousal petitions that involve marriage to a minor will require an interview with a USCIS officer. While current U.S. immigration law does not set any minimum age requirement for a petitioner to sponsor a foreign national spouse as the beneficiary of a family-based petition, the USCIS has introduced heightened scrutiny on these cases due to the social policy interest in the protection of minors.
Additional Criteria for USCIS Officers to Evaluate
Generally, the USCIS has considered the law in the place where a marriage was formed when evaluating whether a marriage is valid for immigration purposes. However, even if a marriage is legal under the laws where it was celebrated, the I-130 petition may be denied if the marriage violates state law or offends a state’s public policy. For example, polygamous marriages are prohibited in all 50 states, and therefore are not recognized under U.S. immigration law.
Under the new guidance, USCIS adjudicators are instructed to evaluate the following three criteria in determining whether a marriage to a minor is valid for purposes of immigration:
- Whether the marriage was valid under the laws where the marriage took place
- Whether state laws of the couple’s current or intended U.S. residence recognize the marriage as legal, and whether public policy concerns exist in that state
- Whether both parties entered into the marriage with full, free, and informed consent, and the marriage is considered bona fide for immigration purposes
This means that, even if a marriage is valid where it took place, one must ensure that the laws in the state of residence or intended residence also recognize the marriage as valid. For instance, some states require parental consent for individuals under the age of 18 to marry, while others require a court decree granting special permission to minors to allow them to marry. Regardless, if an adjudicating officer believes that either of the parties did not enter into the marriage freely, the USCIS will not recognize the union as a valid marriage.
Mandatory Interview Requirement
In addition to providing guidance on how to evaluate these types of cases, the new policy instructs USCIS officers to require in-person interviews for all I-130 spousal petitions involving a petitioner or beneficiary:
- Who is under the age of sixteen (16)
- Who is sixteen (16) or seventeen (17) years of age and there is an age difference of ten (10) years or more between the spouses
Noting the special circumstances involved with interviewing minors, the new guidance also instructs officers that interviews with minors should be conducted with sensitivity and may warrant special consideration. For instance, the guidance states that in some circumstances the interviewing officer may determine that a trusted adult should be present for the interview.
The recent update to the AFM does not change the current law regarding I-130 adjudications, but rather provides additional clarification and heightened scrutiny to I-130 spousal petitions involving minors. Any individual filing an I-130 spousal petition that involves a minor should recognize that the petition is likely to undergo greater scrutiny to ensure the safety and well-being of minors.
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