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).

9 FAM 102.8-1(I)  LEGAL SEPARATIONS AND MARRIAGE TERMINATION (CT:VISA-1774;   05-24-2023) a. An applicant is a “spouse” for visa adjudication purposes, even if the parties to the marriage no longer cohabit, if the marriage was not contracted solely to qualify for immigration benefits.  If the parties are legally separated, i.e., by written agreement recognized by a court or by court order, the applicant is no longer a “spouse” for visa adjudication purposes even if the couple has not obtained a divorce. b. If an individual’s prior marriage has been terminated by a separation that is not recognized by the state in which they reside, the individual must first obtain a divorce from the prior spouse to qualify for an IV.

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

Matter of Stockwell On November 21, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it had updated its Policy Manual (PM) in a policy alert titled “Adjustment on New Basis After Termination of Conditional Permanent Residence” [PDF version]. An alien who is admitted to the United States as a conditional permanent resident is barred from pursuing adjustment of status under section 245(a) while he or she is in conditional permanent resident status. See INA 245(d). The Board of Immigration Appeals (BIA) held in 1991 that this bar does not apply to an alien who was admitted to the United States as a conditional permanent resident status but whose conditional permanent resident status was terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The USCIS’s new guidance is designed to ensure uniformity in the USCIS’s handling of adjustment applications filed by aliens who were admitted as conditional permanent residents but whose conditional permanent resident status was subsequently terminated. The Board began by noting that INA 245(d) was added to the INA as part of the Marriage Fraud Amendments of 1986, part of what it described as “a comprehensive statutory scheme to deter immigration-related marriage fraud.” Section 216 itself, the Board explained, “was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage.” The INS codified regulations to implement the section 245(d) bar at 8 CFR 245.1(b)(12) (1991). The regulation, in the pertinent part, stated that “[a]ny alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 of the Act” was barred from adjustment under INA 245(a). The Board found that it was clear that Congress intended for any alien in conditional permanent resident status to be ineligible for adjustment of status. Regarding the open question of aliens whose conditional permanent resident status was terminated, the Board agreed with the Immigration Judge’s conclusion that the bar was only intended to apply “to aliens currently holding conditional permanent resident status.” The Board agreed with the Immigration Judge’s finding the regulatory language dispositive, and noted that the INS had omitted any mention of the regulation in its arguments. The Board subsequently affirmed the Immigration Judge’s decision granting the respondent’s application for adjustment of status in the exercise of discretion. Relevant Statutes An alien who obtains permanent resident status on the basis of marriage to a U.S. citizen or lawful permanent resident, and that alien’s derivative sons or daughters, is admitted to the United States as a permanent resident on a conditional basis. INA 216(a)(1). An alien who obtains status as an alien entrepreneur (employment-based fifth preference) and his or her derivative spouse and/or children is also admitted as a permanent resident on a conditional basis. INA 216A(a)(1). Conditional permanent residents must subsequently petition to have the conditions on their status removed. The requirements for having conditions removed are different for spouses (see INA 216) and entrepreneurs (see INA 216A). A conditional permanent resident under INA 216 or INA 216A may not adjust status on an alternative basis under INA 245(a). See INA 245(d); 8 CFR 245.1(c)(5). The statutes do not address the ability of an alien who was admitted as a conditional permanent resident, but whose status was subsequently terminated, to adjust status under INA 245(a). In the next section, we will examine how the BIA resolved this question. New USCIS Guidance on Adjustment for Former Conditional Permanent Residents The new USCIS guidance on adjustment cases involving aliens who were admitted as conditional permanent residents is found at 7 USCIS-PM B.7(G) [PDF version]. The PM notes that under statutes and regulations, an alien admitted in conditional permanent resident status is not permitted to adjust status under INA 245(a) while holding such status. Instead, the alien must comply with section 216 (family cases) or 216A (entrepreneur cases) to pursue the removal of conditions from his or her permanent resident status. However, in accord with Matter of Stockwell, the PM explains that this prohibition on adjustment only applies when the alien is currently in lawful conditional permanent resident status. Under Matter of Stockwell, “the bar no longer applies if USCIS terminates the alien’s [conditional permanent resident] status.” The USCIS may terminate an alien’s conditional permanent resident status for any of the reasons stated in INA 216 (family cases) or 216A (entrepreneur cases). The USCIS generally issues a Notice to Appear upon terminating an alien’s conditional permanent resident status. The PM states that although an immigration judge may review the termination of conditional permanent resident status in an alien’s subsequent removal proceedings, the USCIS’s position is that the bar to adjustment of status found in 245(d) becomes ineffective upon the USCIS’s decision to terminate conditional permanent resident status. Therefore, “it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s [conditional permanent resident] status before the alien may file a new adjustment application.” In accord with the statutes, regulations, Matter of Stockwell, and the USCIS’s interpretation of the foregoing, an alien whose conditional permanent resident status has been terminated may adjust status under INA 245(a) if: The alien has a new basis for adjustment;The alien is otherwise eligible to adjust; andUSCIS has jurisdiction over the adjustment application. The USCIS makes clear that an alien must have a new basis for adjustment of status. That is, “the alien may not reuse the immigrant petition associated with the previous [conditional permanent resident] adjustment or admission.” An alien initially admitted as a K nonimmigrant fiancé(e) may only re-adjust status on the basis of an approved Form I-130, Petition for Alien Relative, filed by the same U.S. citizen who filed the Form I-129F Petition for Alien Fiancé(e), on his or her behalf. The PM adds that the alien must be otherwise eligible for adjustment of status, including by not being inadmissible or barred from adjustment under INA 245(c). In short, the alien must meet the generally applicable requirements for adjustment. If the USCIS grants the former conditional permanent resident’s adjustment application, it “generally considers the date of admission to be the date USCIS approved the