K1 Visa 129-F Denial -- Next Steps?

[SalishSea 17,801]

1 hour ago, Boiler said:

Also begs the question how you break such a relationship legally.

This is the primary issue for common-law "marriages" when it comes to US immigration.

Edited November 8, 2019 by Jorgedig

[Illiria 980]

1 hour ago, JAC&MEH said:

Apparently due to the expense involved, it is very common for people to live together as husband and wife without ever legally getting married.  As our attorney explained it, if two people, that are legally able to be married, live together continuously for at least 2 years, they are considered to be "married" under Mexican law. 

So if immigration wasn’t involved and this was just two people from Mexico who live together continuously for two years and therefore considered married in Mexico law what would they do if they split up and wanted to marry other people - would they have to do something before they could get formally married to someone else? 
 

There is something similar in Canada - but you don’t have to get divorced unless you lived together more than 7 years and had applied to have it formally recognized. So if you split up even if you had been getting tax benefits as a cohabiting couple you didn’t have to get any formal separation unless the 7 years and formal recognition had happened. 

[JAC&MEH 34]

1 minute ago, Illiria said:

So if immigration wasn’t involved and this was just two people from Mexico who live together continuously for two years and therefore considered married in Mexico law what would they do if they split up and wanted to marry other people - would they have to do something before they could get formally married to someone else? 
 

There is something similar in Canada - but you don’t have to get divorced unless you lived together more than 7 years and had applied to have it formally recognized. So if you split up even if you had been getting tax benefits as a cohabiting couple you didn’t have to get any formal separation unless the 7 years and formal recognition had happened. 

I will preface this by saying this is what I understand to be the case after consulting with my Mexico attorney.... 

 

When two people want to get legally married, they are required to go the the Civil Registry and obtain a Single Status Certificate.  This Certificate proves that the person is unmarried and eligible to be married.  If the two people had been living together but never legally married, there would be no record in the Civil Registry so when they would go to obtain the Single Status Certificate, they would be given one and be free to marry.  Here in lies the problem.  The USCIS wants a divorce decree but she cannot obtain a Mexican divorce without first producing a marriage certificate.  The purpose of the RFE was to determine whether or not she is eligible to marry.  If we were to get married in Mexico, she would have to obtain the very same Single Status Certificate that I sent to them in response to their RFE.

[SalishSea 17,801]

7 minutes ago, JAC&MEH said:

I will preface this by saying this is what I understand to be the case after consulting with my Mexico attorney.... 

 

When two people want to get legally married, they are required to go the the Civil Registry and obtain a Single Status Certificate.  This Certificate proves that the person is unmarried and eligible to be married.  If the two people had been living together but never legally married, there would be no record in the Civil Registry so when they would go to obtain the Single Status Certificate, they would be given one and be free to marry.  Here in lies the problem.  The USCIS wants a divorce decree but she cannot obtain a Mexican divorce without first producing a marriage certificate.  The purpose of the RFE was to determine whether or not she is eligible to marry.  If we were to get married in Mexico, she would have to obtain the very same Single Status Certificate that I sent to them in response to their RFE.

Unfortunately, "Single Status Certificate" in no way "proves" that someone is unmarried.  It only serves as evidence that someone did not legally marry in that jurisdiction.  You could get married on a remote beach in Thailand, and still get a Mexican "Single Status Certificate."  The main issue here is the incongruence between the lie on the previous B visa application, and the inability to show a divorce decree.

[GP1977 288]

3 hours ago, Jorgedig said:

Even if it’s not a material misrep per se, providing false marital status info on ANY US visa application is obviously not smart, as evidenced here.  One of the few criteria for I-129f approval is evidence that both parties are free to conclude a legal marriage, and in this case the beneficiary was unable to do that due to a previous lie.

Yes, lying on a visa application is not smart for many reasons but to say the beneficiary lied on their previous visa application is over-reaching.

 

Although not legally binding - they were holding themselves out as being common law married.  Again - not legally binding but it is recognized in many countries and many different states and they may or may not have realized at the time whether or not their marriage was legally binding.  So instead of referring to it as a "Lie" - it could have been a misunderstanding. 

 

[geowrian 22,337]

23 minutes ago, JAC&MEH said:

When two people want to get legally married, they are required to go the the Civil Registry and obtain a Single Status Certificate.  This Certificate proves that the person is unmarried and eligible to be married

Nope, it certainly does not. It's just one basic check to satisfy local marriage law requirements. It is still very simple for somebody to commit bigamy by marrying outside of the jurisdiction of that issuing authority first.

[SalishSea 17,801]

8 minutes ago, GP1977 said:

Yes, lying on a visa application is not smart for many reasons but to say the beneficiary lied on their previous visa application is over-reaching.

 

Although not legally binding - they were holding themselves out as being common law married.  Again - not legally binding but it is recognized in many countries and many different states and they may or may not have realized at the time whether or not their marriage was legally binding.  So instead of referring to it as a "Lie" - it could have been a misunderstanding. 

 

I disagree.  The person in question chose "married" for marital status on the B-visa app.  That was incorrect, and the USCIS has rightly requested evidence that the "marriage" claimed by the applicant was legally terminated.  

 

This whole situation is a reminder that any info provided on any US visa or immigration application stays with the applicant.....

[GP1977 288]

12 minutes ago, Jorgedig said:

I disagree.  The person in question chose "married" for marital status on the B-visa app.  That was incorrect, and the USCIS has rightly requested evidence that the "marriage" claimed by the applicant was legally terminated.  

 

This whole situation is a reminder that any info provided on any US visa or immigration application stays with the applicant.....

False. There is a difference between a misunderstanding and deliberate deception or lie.

 

If the beneficiary thought they were common law married and that they believed it was legally binding at the time - then they were unintentionally confused. That is a mistake, it is not a lie.  Huge difference.

 

Lying requires that a person make an untruthful statement, that is, make a statement that she or he believes to be false.

 

Edited November 8, 2019 by GP1977

[JAC&MEH 34]

Wow!  It's getting heated in here.....

 

While I can appreciate everyone's opinions about whether or not my fiancee is a liar, I offer the following.  I have been married before.  My marriage lasted a total of 18 months.  I was legally married in the US and paid dearly to get out of it via a divorce.  She lived with this man for 5 years in a husband and wife relationship in a country where it is considered a common-law marriage if you stay with the same person for more than 2 years.  Ok; so she does not have a marriage certificate or a divorce decree as a souvenir as I have.  Does it really make my 18 month marriage more legitimate than her 5 year "marriage"?   That being said, she went to a Visa preparation firm in Morelia to fill out her application.  They interview you and fill out the forms for you.  Before you start in on me.... Yes; I know.  She signed it.  I'm not making excuses.  During the interview, they ask her "are you single"?  To which she responds "no; I've been living with my boyfriend for 5 years."  They select "married" and the interview continues.  To her way of thinking, she was definitely not single and the "experts" that she hired to fill out the forms for her presumably selected "married" with a working knowledge of common-law marriage customs there in Mexico.

[geowrian 22,337]

35 minutes ago, GP1977 said:

False. There is a difference between a misunderstanding and deliberate deception or lie.

Yes that is a major difference, but I would note that who makes that judgement call is the key component. It is not a fact but a decision based upon one's circumstances and the person interpreting them. Intent is not something provable. In this case, it's the CO's call. The only recourse would be their supervisor (or higher) to overrule them, or via a court (although the doctrine of consular non-reviewability makes that nearly impossible).

 

Is it a misrepresentation? Yes.

Was it material? Judgement call.

Was it willful? Judgement call.

 

I personally don't think they would determine she is inadmissible based on a material misrep. That said, that is the least of the issues here. The issue here is that the US will require evidence that the marriage was dissolved...which appears that no evidence to that fact exists.

[JAC&MEH 34]

54 minutes ago, geowrian said:

Nope, it certainly does not. It's just one basic check to satisfy local marriage law requirements. It is still very simple for somebody to commit bigamy by marrying outside of the jurisdiction of that issuing authority first.

I was simply trying to answer his question.  He asked me about two people in Mexico and I was relaying to him what I was told by our Mexican attorney. 

[SalishSea 17,801]

43 minutes ago, GP1977 said:

False. There is a difference between a misunderstanding and deliberate deception or lie.

 

If the beneficiary thought they were common law married and that they believed it was legally binding at the time - then they were unintentionally confused. That is a mistake, it is not a lie.  Huge difference.

 

Lying requires that a person make an untruthful statement, that is, make a statement that she or he believes to be false.

 

LOL, well whatever.  You believe what you will, and USCIS will ask for a document that does not exist because it was based on false information.

1 minute ago, geowrian said:

I personally don't think they would determine she is inadmissible based on a material misrep. That said, that is the least of the issues here. The issue here is that the US will require evidence that the marriage was dissolved...which appears that no evidence to that fact exists.

I agree.  

[HRQX 4,145]

21 minutes ago, JAC&MEH said:

To her way of thinking, she was definitely not single and the "experts" that she hired to fill out the forms for her presumably selected "married" with a working knowledge of common-law marriage customs there in Mexico.

I thought the DS-160 had a "Common Law Marriage" option for marital status?

[geowrian 22,337]

6 minutes ago, HRQX said:

I thought the DS-160 had a "Common Law Marriage" option for marital status?

It does. Page 1:

[Villanelle 4,122]

7 hours ago, JAC&MEH said:

.  I was not aware but in Mexico if two people (who are otherwise legally able to marry) live together as husband and wife for over 2 years, they are considered to be in a common-law marriage.  I had this corroborated by the Mexican attorney in her letter that was submitted with the RFE response package as I am by no means an expert in Mexican law.  

 

 

Lets back up a second. You posted the quote above and repeated it several times now. Am I reading this right? As part of your response to the RFE you sent a letter from a Mexican Attny stating very clearly that she was in a valid legally recognized common law marriage? And are wondering why they want a divorce decree? And this Mexican Attny provided you with a statement explaining how it was a valid common law marriage and advised you what? That a certificate of single was the answer? Im just trying to sort this all out. ..