AWA and the Certificate of Legal Capacity to Contract Marriage

[Linus5260 0]

Has anyone here had personal experience of the AWA and the US Embassy issued Certificate of Legal Capacity to Marry?

As a requirement to obtain a marriage license in Manila, Philippines, I had to go to the US Embassy and obtain a Certificate of Legal Capacity to Contract Marriage from the US State Department. "This certification affirms that there are no legal impediments to the foreigner marrying a Filipino..." http://manila.usembassy.gov/marriage.html

I am wondering if anyone can offer a reasoned legal perspective on the implications of one branch of the US Government (State Department, Embassy) providing a legal document stating that the is no legal impediments to the marriage before we got married, and another branch of the US Government (Homeland Security, USCIS) stating that there IS a legal impediment to the marriage after we are already married?

Had we had ANY indication that there would be such a nightmare in applying for my wife's visa before we got married in June 2012, I'm sure it would have influenced many of our decisions.

We have now been waiting over 20 months for her visa.

Edited April 26, 2014 by Linus5260

[Hypnos 6,576]

Are USCIS accusing you of not being legally married, or is it just that you are subject to the AWA due to past offences, and USCIS are holding up your application?

[Darnell 8,478]

Cannot speak for AWA,

but

The DoS, Consular Branch(es ) , is great about issuing that Affadavit.

Bear in mind, that several things you did to obtain this Affadavit:

1. show all prior divorce paperwork to a Vice-Consul.

2. Be Sworn In by a Vice-Consul, to tell the truth.

3. Sign your name on a form swearing that all facts listed are complete, in front of a Vice-Consul

...were supposed to give you that Affadavit.

If there was something untoward, whilst at DoS, but you got that Affadavit anyway, I really don't know what to tell you.

[yes, I remember yer backstory and refuse further comment]

[Tahoma 2,292]

The purpose of the affidavit is to fulfill a Filipino requirement for you to get married in the Philippines. It doesn't mean that your wife will get a U.S. visa. Those are two very different issues. You have the option of living in the Philippines with your wife.

Affidavit in Lieu of a Certificate of Legal Capacity to Contract Marriage: http://manila.usembassy.gov/mobile/marriage.html

[jan22 3,056]

Has anyone here had personal experience of the AWA and the US Embassy issued Certificate of Legal Capacity to Marry?

As a requirement to obtain a marriage license in Manila, Philippines, I had to go to the US Embassy and obtain a Certificate of Legal Capacity to Contract Marriage from the US State Department. "This certification affirms that there are no legal impediments to the foreigner marrying a Filipino..." http://manila.usembassy.gov/marriage.html

I am wondering if anyone can offer a reasoned legal perspective on the implications of one branch of the US Government (State Department, Embassy) providing a legal document stating that the is no legal impediments to the marriage before we got married, and another branch of the US Government (Homeland Security, USCIS) stating that there IS a legal impediment to the marriage after we are already married?

Had we had ANY indication that there would be such a nightmare in applying for my wife's visa before we got married in June 2012, I'm sure it would have influenced many of our decisions.

We have now been waiting over 20 months for her visa.

The State Department is not saying there is no legal impediment to you getting married -- it is merely notarizing your sworn affidavit that there's no legal impediment. They provide this to assist U.S. citizens in meeting obligations under the local law of the country in which you are getting married. it has nothing to do with U.S. law or the immigration process. And, the AWA is not an impediment to marriage either, if the two parties want to get married they can; rather, when it applies to the petitioner, it is an impediment to immigration and can stop it altogether or delay it while things are investigated.

[Linus5260 0]

The State Department is not saying there is no legal impediment to you getting married -- it is merely notarizing your sworn affidavit that there's no legal impediment. They provide this to assist U.S. citizens in meeting obligations under the local law of the country in which you are getting married. it has nothing to do with U.S. law or the immigration process. And, the AWA is not an impediment to marriage either, if the two parties want to get married they can; rather, when it applies to the petitioner, it is an impediment to immigration and can stop it altogether or delay it while things are investigated.

The State Department clearly states that "This certification affirms that there are no legal impediments to the foreigner marrying a Filipino..." I'm not sure how a "reasonable person" can take this any other way. It has everything to do with US law.

The claim that the AWA is no impediment to marriage holds no water either. The manner is which the USCIS has chosen to implement the AWA (applying it to married adults with no children) is contrary to the congressional intent (to protect children) of the AWA. The AWA itself is not an impediment to marriage, but the illegal use of the AWA by the USCIS IS an impediment to marriage. Some try to claim that one can move to the foreign country to be with your spouse, but the USCIS has also implemented the practice of notifying the foreign government who then bares the US citizen from entry to the country where their spouse lives. The married couple cannot live together, or even visit, in either country.

The USCIS DOES consider the AWA an impediment to marriage. If the US Government is going to use the AWA to prevent marriages or as a basis for denial of the application, do they not have a responsibility to inform the parties through the application instructions? There is nothing about the AWA in the instructions for the I-130 application. Does the State Department not have a responsibility to at least advise the US citizen that there is something called the AWA before stating "there are no legal impediments to the foreigner marrying a Filipino..."?

I appreciate your opinion, but am really looking for factual information.

[Linus5260 0]

The purpose of the affidavit is to fulfill a Filipino requirement for you to get married in the Philippines. It doesn't mean that your wife will get a U.S. visa. Those are two very different issues. You have the option of living in the Philippines with your wife.

Affidavit in Lieu of a Certificate of Legal Capacity to Contract Marriage: http://manila.usembassy.gov/mobile/marriage.html

I am aware of the purpose of the Certificate of Legal Capacity to Contract Marriage. It IS a legal document issued by the US State Department.

The USCIS and the US State Department both represent the US Government. A document issued by any branch of the US Government cannot be ignored by other branches of the Government when they find it inconvenient. No one has implied that the Certificate of Legal Capacity to Contract Marriage carries any assurance of a visa approval.

As to your suggestion that one has the option of living together in the Philippines, that USCIS has also implemented the practice of notifying the foreign government who often bares the US citizen from entry to the country where their spouse lives. The married couple cannot live together, or even visit, in either country.

Although I appreciate every person's opinion, I am really looking for factual information here.

[NikLR 13,227]

If AWA is your issue, you need a very good lawyer, this DIY site will not be of much, if any, help to you.

[Linus5260 0]

If AWA is your issue, you need a very good lawyer, this DIY site will not be of much, if any, help to you.

We have secured the services of a lawyer.

Part of my purpose is also to prevent some other poor unsuspecting couple from blundering into the same situation. I visited this site for information prior to us getting married to look for any suggestions and problems we may encounter. We researched the process extensively. We had absolutely no clue about the AWA until we received the NOID 14 months after applying.

I believe it is unethical to mislead people by implementing their current AWA practices in the dark, without any advisory in any of the application instructions. Why not be honest in the implementation? Why not let people know this is a potential obstacle? Is it because they know it is illegal to use the AWA in this manner?

[Hypnos 6,576]

I don't think you're going to get anywhere with those arguments, but you are, of course, welcome to try, and IANAL.

If you believe the AWA is being applied in a capricious manner, or is even unconstitutional, you should hire (another) lawyer and challenge it in federal court. Otherwise, what you state is beyond the scope of this DIY forum.

[belinda63 3,038]

When you applied for the non-impediment to marriage you weren't apply for an immigrant visa for your wife. All they did was say you were legally able to marry. Immigration is a whole different issue. Sort of like Octomom being implanted with 12 embryos. Not their responsibility to find out if she could support them, they just did what their specific job was.

[NikLR 13,227]

It's not my fault you're within the scope of AWA, that's on your shoulders.

Not everyone gets the same privileges as everyone else. It's a privilege, not a right, to visit a spouse in a foreign country, and a privilege, not a right, to get a foreign spouse into this one.

Beyond telling you that you need a lawyer, that is all you will get out of me.

<EOM>

[jan22 3,056]

Although I appreciate every person's opinion, I am really looking for factual information here.

The following information, on the U.S. Embassy Manila's website (http://manila.usembassy.gov/marriage.html), clearly shows that what I said about the Embassy action merely being a notarization of your affidavit was, in fact, factual:

DISCLAIMER: Philippine Law requires non-Filipino citizens to obtain a Certificate of Legal Capacity to Marry if they wish to marry in the Philippines. U.S. Consular Officers cannot make any official certification about the status or eligibility to marry of persons residing in the United States who propose to be married abroad, or about the laws of the United States or of any of the fifty States or Territories about eligibility for marriage or the solemnization of a marriage. Instead, the U.S. Embassy provides an Affidavit In Lieu of Certificate of Legal Capacity to Marry. The affidavit is the only document the U.S. Embassy is able to provide. If the local registrar refuses to accept the affidavit, there is nothing that the U.S. Embassy in Manila can do. It is the applicant’s responsibility to verify directly with the local registrar their requirements.

It is also clear that AWA is not an impediment to marriage, since you are now married. It does present an impediment to immigration, as you are experiencing. Your argument is with USCIS over their interpretation of the law -- perhaps a lawyer can help you find an interpretation that will convince USCIS and help you.

As it seems your definition of factual information is only that information that agrees with your opinion, I suspect you're not going to get much here that you consider "factual".

Edited April 28, 2014 by jan22

[Tahoma 2,292]

All they did was say you were legally able to marry.

^^^ This.

It is also clear that AWA is not an impediment to marriage, since you are now married.

^^^ And this.

[pushbrk 12,892]

The AWA doesn't prevent marriage. It didn't prevent you from legally marrying. It's preventing your spouse from immigrating to the USA.

The only blunder I see is confusing impediment to marriage with impediment to successful immigration of the foreign spouse to the USA. Your issue is not with any affidavit required by the Philippines, how it's used or how it is interpreted, except your own misinterpretation. Your issue is the Adam Walsh Act's impact on your ability to successfully complete an immigration process for your foreign spouse.

Legal marriage and legal immigration are as different as apples and mosquitoes. If somebody needs a warning, let that be the warning. Don't confuse marriage and immigration.

Edited April 29, 2014 by pushbrk