married before entering on K-1

[sara..... 371]

I have been reading all the answers but I believe answering this question requires some understanding of what marriage is considered in religious terms (Islam, in this case) and the immigration law. There is absolutely no problem for you to make a nikah while applying for or holding a K-1 visa. In Immigration law, marriage is valid if it is valid in the place where the marriage took place. The marriage MUST be registered in the appropriate authorities in order to be deemed legal under immigration law. A nikah is not a marriage unless it is conducted by the appropriate authority AND fully registered. However, in Sharia law, anyone with knowledge of Islamic marriage law can perform the nikah - even if you pull him from the street. All the family wants is to let their daughter go with her husband (In Sharia law terms, not in family law terms). A member of her family or a sheikh from the local mosque can perform the nikah and it will not be deemed legal under the Egyptian law or US immigration law. I have seen a fellow member saying that Muslim countries recognize nikah as a legal marriage. That is not true at all. What he/she may got confused is that the authorized marriage court or registry can retroactively validate a nikah as a legal marriage if the required witnesses attest a nikah has taken place. It is very confusing to some, I know, but such marriage was not legal under the family law before it was validated by the proper authority. The fact that it was validated retroactively (back to the date when the witnesses attested the nikah took place) does not mean it was legal before the validation. This is very interesting because once a nikah is validated retroactively, you can use it to seek US immigration benefits because it is legal from that point on. If you don't want to validate your nikah retroactively, you just say so and the family court or the civil registry will just register your marriage effective that day.

These are the points:

- Under US immigration law, a marriage must be legal in the place where it took place. It must be registered in the appropriate authority as per the government of that country.

- A nikah is not a legal marriage in US (and in any country for that matter) unless it is properly performed and registered by an authority duly authorized by the local government.

Therefore, it is perfectly fine that you go ahead with the nikah arrangement with her family. You just make sure that it is neither performed by an authorized judge nor registered with the civil registry. In western society, it is like an engagement - although it weighs more when looked from the religious perspective. In Islam, two are duly married when the man accepts the nikah offer. Consulates in predominantly Muslim countries know about local traditions and therefore know what nikah is. You can tell them in the face that you have performed nikah and it won't change anything because you still need to be legally married. It is neither fraud nor lie to answer "NO" if you are asked whether you are married. They are asking whether you are legally married - not whether you are married in Islamic terms. In fact, you have to answer "NO" to such questions until your marriage is duly registered.

Proxy marriage is never advisable by the way. It is a gamble when it comes to seeking immigration.

the problem with all that you stated is that the embassy's will use the nikah as a reason to give a denial claiming that the couple is married....as far as it not being legal how many illigal marriages are there in say Pakistan and India? one of the many reasons that the embassy uses this as a way to get out of giving the visa is because so many marry and never register it for lack of money or they dont deem it as necessary after all everyone knows they did the nikah ........so while your argument might have legal points it does not hold water when it comes to immigration.....the embassy can and will ask what ever they want.

we should never give advise to someone about nikah when it has been proven so very many times to make a mess for the couples that have tried and been refused k1 visa based on the embassy's perception of nikah with out registration equals marriage....with that being said they will also refuse a marriage visa with nikah with out it being registered it is now and has always been a catch 22

sara

[fazmo 24]

the problem with all that you stated is that the embassy's will use the nikah as a reason to give a denial claiming that the couple is married....as far as it not being legal how many illigal marriages are there in say Pakistan and India? one of the many reasons that the embassy uses this as a way to get out of giving the visa is because so many marry and never register it for lack of money or they dont deem it as necessary after all everyone knows they did the nikah ........so while your argument might have legal points it does not hold water when it comes to immigration.....the embassy can and will ask what ever they want.

we should never give advise to someone about nikah when it has been proven so very many times to make a mess for the couples that have tried and been refused k1 visa based on the embassy's perception of nikah with out registration equals marriage....with that being said they will also refuse a marriage visa with nikah with out it being registered it is now and has always been a catch 22

sara

No embassy denies a visa without having a basis for denial in the immigration law. A CO must cite his legal basis in every visa decision - whether approval or denial. You have used a strong phrase saying that it has been "proved so very many times" that a naked nikah (when that is not performed by the legal authority and registered) has made a mess for K-1 applicants. Could you please provide some sources to that? I would be happy to learn from it. The only way, a naked nikah (I will use naked to differentiate it from a nikah performed by the legal court or one that was validated by such) can create a mess if and only if the applicant gives the CO the impression that they are married. If the CO asks one "Are you married?" and they answer "Yes" to that question, the CO is not required to seek further evidence and can deny the visa by the applicant's admission. I do not give advise of something I am not familiar with - especially when it costs time and money and perhaps a life time chance to a person. I said it before and will say again a nikah that is not performed in the legal way IS NOT a marriage in immigration law because I know it. You can find plenty of people who did nikah and had a successful K1 visa. You can even find people who have done other religious rituals for marriage and yet successfully completed their K1 visa process. Anyway, I would be happy to see your sources. I would completely understand other members who took the question as the PO is in fact getting married (As any CO may also do so by the applicant's admission), but it will be interesting if there is someone who has knowledge in this matter and say the embassy can deny (or approve) a visa because of a naked nikah is viewed as a legal marriage.

[sara..... 371]

No embassy denies a visa without having a basis for denial in the immigration law. A CO must cite his legal basis in every visa decision - whether approval or denial. You have used a strong phrase saying that it has been "proved so very many times" that a naked nikah (when that is not performed by the legal authority and registered) has made a mess for K-1 applicants. Could you please provide some sources to that? I would be happy to learn from it. The only way, a naked nikah (I will use naked to differentiate it from a nikah performed by the legal court or one that was validated by such) can create a mess if and only if the applicant gives the CO the impression that they are married. If the CO asks one "Are you married?" and they answer "Yes" to that question, the CO is not required to seek further evidence and can deny the visa by the applicant's admission. I do not give advise of something I am not familiar with - especially when it costs time and money and perhaps a life time chance to a person. I said it before and will say again a nikah that is not performed in the legal way IS NOT a marriage in immigration law because I know it. You can find plenty of people who did nikah and had a successful K1 visa. You can even find people who have done other religious rituals for marriage and yet successfully completed their K1 visa process. Anyway, I would be happy to see your sources. I would completely understand other members who took the question as the PO is in fact getting married (As any CO may also do so by the applicant's admission), but it will be interesting if there is someone who has knowledge in this matter and say the embassy can deny (or approve) a visa because of a naked nikah is viewed as a legal marriage.

you should look back into the forum for India for a starter on how many times people have been denied visa because they had nikah or even a engagement that the embassy viewed as marriage.....many times if they don't just out and out refuse the visa they wait until the petition has expired and send it back to the states as expired petition....not all embassy's from every country work on the same level as others....im sorry to say but unless you had first hand experiences with at least dealing with the embassy in Pakistan or India its really hard for you to grasp the lengths that some of the embassy's go to. Are you an attorney that has had clients with these embassy's? We did and just about everything he told us turned out to be a joke and cost us two years of just dealing with the service center...i could give you the reasons why what he did cost us that length of time but its lengthy...in the end our case was played with until it had expired....why because my fiance had NO LEGAL marriage from a girl once before that did nikah with out it being signed it was viewed as a legal marriage in the state of Texas she pulled the fiance visa got a annulment and married another man.....so when he went for interview he did take the annulment papers and his nikah papers to prove there was NO marriage ever the embassy decided that he had been married so he went to get proof from where ever the powers that be hold the legal proof of the marriage received statements from them that no legal marriage had been entered into the embassy still saw it as a legal marriage

others that have done nikah and not had the problems we had still get their petition played with until it expires or they go to great length to prove there was no legal marriage.

on one hand you are correct that it should never be seen as a legal marriage at the embassy level.....with that being said it is still a catch 22 that the embassy in at least India and Pakistan use even if they see pics of a engagement they many times force the visa applicant to prove it was not a wedding.

we could debate this all day long based on legality of what is right and wrong i dont disagree with your knowledge of what a legal marriage is.....i disagree with telling a applicant to do nikah to get past the problem of the couple not being married and the family allowing the girl to travel to her fiance.....it is could be opening them up to a world of problems....

sara

[Ramsis 1]

Hey everyone...i am the OP

1st of all i like to thank each one for every advice or suggestion, i couldn't believe the amount of effort you guys put in this post to help with my case. (we who about to die "aka wait forever for a visa", salute you)

ok here is whats going on so far.

1- Talked with her family, they do not approve of her traveling without being married with a K1 visa (which is what was expected by me and everyone here that is Muslim or know how things work in a Muslim family). it does not look good on her and the family to travel with a non-family member.

2- Talked with her family, they do no approve of us getting a Nikah (which is a religious traditional deal that does not get legalized or documented with the government at all). However, Nikah does not reserve her any rights as wife what so ever in case of a divorce or something else god forbid. so that is why the family do not feel there is a good reason to put their daughter in that position.

3- Someone here suggested that we marry and divorce while on K1 so when she enters she is not married, that will not work either because a divorce is like a very shameful thing in Egypt that makes the woman and her family look very bad. plus USCIS can give us a headache later on or feel we are playing games.

------------------------

So, here is what i did so far i made a power of attorney to her Uncle. i know "some" of you are against proxy marriage. But do not forget that i am still going there on September 22nd and we are having a wedding ceremony on the 23rd and a honeymoon ,,,etc.

I will include a copy of the plane ticket and the hotel reservationns when i send the CR1 packet from Egypt to USCIS in the US. The only thing that wont be included in the CR1 packet is photos of the wedding. but we have many photos for us and with family from 2009 and 2010 and from the Engagement party and many outings, phone call logs, emails.. etc

So any day now they will receive the power of attorney via FedEx and they will get the marriage certificate made and translated etc and mail it back to me asap. so i can file for CR1 and waste any more time.

What you guys think? anyone think there is something that they can deny my wife the CR1?

[Harpa Timsah 13,258]

You cannot file for I-130 until you meet her in person after the proxy marriage. You cannot file it directly after the proxy marriage, because as stated, a proxy marriage is not a valid marriage for USCIS. Once it is consummated, then you can file a petition based on your proxy marriage and subsequent meeting in person. You have to have a petitionable marriage at the time you mail in the petition, not only at the time the visa is approved. If you read the instructions for the I-130, it very clearly says that you cannot petition for a husband or wife if you were not both present at the marriage and you have not since then consummated the marriage. You can file the I-130 when you arrive in Egypt, but not before.

Please understand this: If you file a I-130 after the proxy marriage and before you see her in person your petition will be denied.

Edit: Sorry, after reading again it seems you plan to file "from Egypt to the US" which is good, but then you say "So any day now they will receive the power of attorney via FedEx and they will get the marriage certificate made and translated etc and mail it back to me asap. so i can file for CR1 and waste any more time." so I am not sure which plan you are doing.

Edited August 10, 2011 by Harpa Timsah

[Ramsis 1]

You cannot file for I-130 until you meet her in person after the proxy marriage. You cannot file it directly after the proxy marriage, because as stated, a proxy marriage is not a valid marriage for USCIS. Once it is consummated, then you can file a petition based on your proxy marriage and subsequent meeting in person. You have to have a petitionable marriage at the time you mail in the petition, not only at the time the visa is approved. If you read the instructions for the I-130, it very clearly says that you cannot petition for a husband or wife if you were not both present at the marriage and you have not since then consummated the marriage. You can file the I-130 when you arrive in Egypt, but not before.

Please understand this: If you file a I-130 after the proxy marriage and before you see her in person your petition will be denied.

Edit: Sorry, after reading again it seems you plan to file "from Egypt to the US" which is good, but then you say "So any day now they will receive the power of attorney via FedEx and they will get the marriage certificate made and translated etc and mail it back to me asap. so i can file for CR1 and waste any more time." so I am not sure which plan you are doing.

Seriously..!!

Seriously.....!!!

i just want to say that i have been going through some major ####### with her family now, 1st i suggested her traveling without marriage they denied, and to do nikah and they denied. and i begged their uncle to a power of attorney so we can get started and i made a big fuss and i rushed everyone so they can get the marriage certificate done fast. everyone has been on their toes......>>>>> so you can come NOW and tell me ..oh you cant apply until you go to Egypt!!!!! now I'm going to look like a total #@&@#@** when i tell them oh wait all what we did was for nothing.....we cant file until i go to Egypt.

You know what they are going to tell me? why didn't you check before you made us run around like chicken with no heads for 2 days. ....and you know what i am going to say??? This girl from Israel did not mention that in her previous posts!!!! Thanks so much ..you are a wonderful human being ..

on a side note...can anyone else aside from "Harpa Timsah" confirm this ....can i file when i get the translated marriage certificate in the mail or i have to wait to go to Egypt and waste more time? some of you guys said a proxy marriage is accepted. and i do have a ticket paid for and hotel reservations for honeymoon and we have meet twice already in the last 2 years.

[fazmo 24]

She is right. You cannot file for I-130 until you personally met her and get married. Only when you have lived as a legal wife and husband together can you file for spousal visa. Proxy marriage will not work for you. You have two choices. Go to Egypt, get married, come back to the US and file for an IR visa. Or file for a fiancee visa before you go there (but you must have met her before). Don't rush to decisions because you may regret so much later. Do it the right way. Seeing how you are flip flopping (perhaps due to her family being unflexible), I would suggest that you do nothing until you go there and get married legally. Go for the spousal visa, and leave everything else behind. The family should be ok with their daughter staying with them a little longer since they refused you make unofficial nikah and bring her home with K1 visa.

[Ramsis 1]

This is incorrect. If you search threads you will find lots of stories of denials with proxy marriages. Even with consummation later it can be very tricky. Without consummation it is not valid for USCIS at all. Please see here on the I-130 instructions themselves.

Under "Who May NOT File I-130" you will see

"4. A husband or wife, if you or your spouse were not both physically present at the marriage, and the marriage was not consummated."

http://www.uscis.gov/files/form/i-130instr.pdf

see page 2

Ok well the "WEDDING CEREMONY" is not happening until i get there for sure. what they are doing is the marriage certificate signing...thats it. AND it will be consummated. ...so what is the problem?

[VanessaTony 3,567]

Seriously..!!

Seriously.....!!!

i just want to say that i have been going through some major ####### with her family now, 1st i suggested her traveling without marriage they denied, and to do nikah and they denied. and i begged their uncle to a power of attorney so we can get started and i made a big fuss and i rushed everyone so they can get the marriage certificate done fast. everyone has been on their toes......>>>>> so you can come NOW and tell me ..oh you cant apply until you go to Egypt!!!!! now I'm going to look like a total #@&@#@** when i tell them oh wait all what we did was for nothing.....we cant file until i go to Egypt.

You know what they are going to tell me? why didn't you check before you made us run around like chicken with no heads for 2 days. ....and you know what i am going to say??? This girl from Israel did not mention that in her previous posts!!!! Thanks so much ..you are a wonderful human being ..

on a side note...can anyone else aside from "Harpa Timsah" confirm this ....can i file when i get the translated marriage certificate in the mail or i have to wait to go to Egypt and waste more time? some of you guys said a proxy marriage is accepted. and i do have a ticket paid for and hotel reservations for honeymoon and we have meet twice already in the last 2 years.

Actually we've been saying it for several pages. It was first mentioned when you said the Power of Attorney thing but you obviously didn't log on until now... Here: http://www.visajourney.com/forums/topic/323736-married-before-entering-on-k-1/page__view__findpost__p__4834991 was where she first said it (11.46am yesterday according to my timestamps). Scroll up 2 posts and that's where you wrote "we're thinking of 2 options" (11.35am yesterday.. so you'll see she posted TWELVE minutes after you posted) and we've been saying do the one where you marry and file it after the honeymoon. Here's my post about it: http://www.visajourney.com/forums/topic/323736-married-before-entering-on-k-1/page__view__findpost__p__4835617

Edited August 11, 2011 by Vanessa&Tony

[Ramsis 1]

Actually we've been saying it for several pages. It was first mentioned when you said the Power of Attorney thing but you obviously didn't log on until now...

well i read them but was too late...i apologize to timsah

[VanessaTony 3,567]

Ok well the "WEDDING CEREMONY" is not happening until i get there for sure. what they are doing is the marriage certificate signing...thats it. AND it will be consummated. ...so what is the problem?

the problem will be that at the time of FILING the wedding needs to be legal. Seeing you're not going to consummate until after your actual wedding then you may as well file based on your "in person" wedding instead of proxy wedding.

[Ramsis 1]

the problem will be that at the time of FILING the wedding needs to be legal. Seeing you're not going to consummate until after your actual wedding then you may as well file based on your "in person" wedding instead of proxy wedding.

Ok ... please answer this final 2 questions.

1- If they do the marriage certificate via proxy (power of attorney) in the next few days, for the purpose of getting it issued and translated & certified. and ready for me by the time i get there >>>>>>>>>>>> Is it OKAY to file/mail out the CR1 on the DAY OF THE WEDDING CEREMONY which is 09/23 ?????? (and yes i will include boarding pass, hotel reservations, and me & her are working on trying to get joint bills and bank accounts so we can include it as well).

2- My Fiancee is very mad right now, she wants to know what is so bad about filing before the ceremony if it is already set that i am going there next month and i have the ticket booked already. Isn't that proof enough that the marriage WILL BE consummated?!!!!!!

Edited August 11, 2011 by Ramsis

[Rufus2012 175]

I think you first should remember that this is a website where people provide free feedback. The advice is worth what you've paid for it. I've read a lot of interesting stuff here, it's been helpful, but ultimately, you have to do your homework and verify what someone is telling you is correct. And if you have issues about someone's country of origin, keep it to yourself, or just ignore their posts.

[VanessaTony 3,567]

Ok ... please answer this final 2 questions.

1- If they do the marriage certificate via proxy (power of attorney) in the next few days, for the purpose of getting it issued and translated & certified. and ready for me by the time i get there >>>>>>>>>>>> Is it OKAY to file/mail out the CR1 on the DAY OF THE WEDDING CEREMONY which is 09/23 ?????? (and yes i will include boarding pass, hotel reservations, and me & her are working on trying to get joint bills and bank accounts so we can include it as well).

2- My Fiancee is very mad right now, she wants to know what is so bad about filing before the ceremony if it is already set that i am going there next month and i have the ticket booked already. Isn't that proof enough that the marriage WILL BE consummated?!!!!!!

1. Well you could in theory do that but some proxy weddings, even with proof or what not of consummation, don't work. Why risk it when you'll be LEGALLY and in person married at the same time? USCIS might find that odd as well. Why bother with the proxy wedding, then send it after the real wedding unless you're trying to make it look like your consummated when you might not have (not saying you won't but look at it from USCIS's point of view).

2. You need to be able to prove the marriage WAS consummated.. not that it "will be".

[JimVaPhuong 4,863]

Ok ... please answer this final 2 questions.

1- If they do the marriage certificate via proxy (power of attorney) in the next few days, for the purpose of getting it issued and translated & certified. and ready for me by the time i get there >>>>>>>>>>>> Is it OKAY to file/mail out the CR1 on the DAY OF THE WEDDING CEREMONY which is 09/23 ?????? (and yes i will include boarding pass, hotel reservations, and me & her are working on trying to get joint bills and bank accounts so we can include it as well).

Yes, as long as you can prove you were physically in each other's presence after the date on the marriage certificate. You'll have to explain that the initial marriage was by proxy since you won't have any documents to prove you were together when the marriage occurred.

It would be substantially less complicated to just get married in person and get a proper marriage certificate.

2- My Fiancee is very mad right now, she wants to know what is so bad about filing before the ceremony if it is already set that i am going there next month and i have the ticket booked already. Isn't that proof enough that the marriage WILL BE consummated?!!!!!!

It has nothing to do with being "bad". Until you have a legal wedding you don't have a petitionable relationship. It's really that simple.

From the USCIS Adjudicator's Field Manual, chapter 21.3:

(A) Proxy Marriages .

Section 101(a)(35) of the Act provides that the term "spouse", "wife", or "husband" does 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 has been consummated. (Note: Consummation of a marriage can only occur after the ceremony, there is no such thing as “pre-consummation” of a marriage.)

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3429/0-0-0-4407.html