Though this does not come up very frequently, immigration practitioners should be extremely careful when submitting I-130 spousal petitions involving minors to U.S. Citizenship and Immigration Services (USCIS).
On February 15, 2019, USCIS announced that it is publishing a guidance for its officers to consider when adjudicating spousal petitions involving minors.
While there are no statutory age requirements to petition for a spouse or be sponsored as a spousal beneficiary, going forward, USCIS will consider whether the age of the beneficiary or petitioner at the time the marriage was celebrated violates the law of the place of celebration and is recognized as valid or violates the public policy of the state where the couple resides or plans to reside.
Note that in some U.S. states and in some foreign countries, marriage involving a minor might be permitted under certain circumstances, including where there is parental consent, a judicial order, emancipation of the minor, or pregnancy of the minor.
The updated guidance stresses to adjudicators that marriages involving a minor warrant special attention.
USCIS is guiding its officers to review the following when adjudicating I-130 spousal petitions involving minors:
- The marriage was lawful in the place it was celebrated;
- If the couple resides outside the place of celebration, the marriage is recognized as valid in the U.S. state where the couple currently resides or will presumably reside and does not violate the state of residence’s public policy, and;
- The marriage is bona fide, and the minor(s) provided full, free, and informed consent to enter into the marriage.
Note that prior to publishing this guidance and required Adjudicator’s Field Manual (AFM) update, USCIS created a flagging system that sends an alert in the electronic system at the time of filing if a minor spouse or fiancé is detected. After the initial flag, the petition is sent to a special unit that verifies that the age and relationship listed are correct before the petition is accepted. If the age or classification on the petition is incorrect, the petition will be returned to the petitioner for correction.