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MARRIAGE OF A MINOR

Can an individual under the age of 18 be married for immigration purposes?

Yes. It will primarily depend on whether the marriage was legal in the place where the marriage took place but there are also public policy concerns.

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).

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