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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 2363
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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As it pertains to US Immigration, what is the legal definition

Customer Question

As it pertains to US Immigration, what is the legal definition of marriage (qualifying someone as spouse)? - my husband is incarcerated. We were originally married by proxy then remarried by ordained minister in a brief ceremony in the prison. In our state congical visits are not allowed. My husband is American citizen born and raised. I am Canadian. Field agent is stating that since we can't consumate marriage it is not valid.
Submitted: 6 years ago.
Category: Family Law
Expert:  Guillermo J. Senmartin, Esq. replied 6 years ago.
What state did you marry in?
Customer: replied 6 years ago.
Our proxy marriage was in Montana. Our re-marriage was in Dallas County, Texas
Expert:  Guillermo J. Senmartin, Esq. replied 6 years ago.
The field agent for USCIS is stating that your marriage is not valid because you cannot conjugate it?
Customer: replied 6 years ago.
Yes, she acknowledges we were also married in the prison hand in hand however due to Texas visitation laws we can not have consumated the relationship therefore I am not defined as a spouse and states she will revoke my husband's sponsorship of me in the I130
Expert:  Guillermo J. Senmartin, Esq. replied 6 years ago.
I am going to Opt Out and transfer your question to the Family Law forum. You need an expert on Montana Proxy marriages and/or Texas marriages. As long as it is legal in either state, USCIS is supposed to recognize it. Good luck to you.
Expert:  Steven K. replied 6 years ago.
Thank you for allowing me to assist you.

There is a special rule for proxy marriages only:
If spouses are not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35). Did you provide proof of your Texas marriage? If so, it should be valid for immigration purposes.

While this rule does not apply to marriages that are not done by proxy, an immigration petition may not be granted if fraud is suspected. The fact that the marriage cannot be consummated and the parties cannot live together may cause ICE to suspect fraud.

Is there any other information I can provide for you?

It may be best
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 2363
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
Steven K. and other Family Law Specialists are ready to help you
Customer: replied 6 years ago.

Hello;

 

My husband is currently incarcerated, he had a split vote last year and looks good for release this year. When I attended the interview I was told that we would not be penalized because of his incarceration and the file was put on hold awaiting his review. Then suddenly we received a notice to revoke his sponsorship of me as not qualifying as spouse. Originally Texas Dept of Criminal Justice stated only proxy marriage was available which is what we did. We were blessed to be re-married by ordained minister in the visitation room with a Texas license and filed marriage also last year.

Field officer that interviewed stated she did not feel it was fraud but field officer reviewing filing recognizes non proxy marriage in her assessment but is stressing about consummation. Prison visitation has had couples "consumate" their relationship sometimes getting caught and getting punishment sometimes not but in no way can we provide any "proof" one way or the other, the first request was Marriage Ceremony where we were both present OR consumation - we provided marriage ceremony but now are being told to prove consumation despite letters from clergy, attending marriage seminar 3 days inside prison run by ministry, parole lawyer etc. We just want to be living as close as we can until his release when he can parole out to our home.

Expert:  Steven K. replied 6 years ago.
Well, you could appeal or re-file. Refiling would probably be simpler, but you may ultimately have to appeal if you get the same decision again (unless, of course, he is released in the meantime.)

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