K1 - RFE - Civil Union

[KLL 7]

Additionally, I saw statments here that: you can't expect the officer to be an expert in civil  law i countries around the world.  but their own policy manual says otherwise (emphasis mine):

 

https://www.uscis.gov/policy-manual/volume-12-part-g-chapter-2

 

B. Common Law Marriage

The concept of common law marriage presupposes an honest good-faith intention on the part of two persons, free to marry, to live together as husband and wife from the inception of the relationship. Some states recognize common law marriages and consider the parties to be married. ^[16] In order for a common law marriage to be valid for immigration purposes:

• The parties must live in that jurisdiction; and

• The parties must meet the qualifications for common law marriage for that jurisdiction.

Other states may recognize a common law marriage contracted in another state even if the recognizing state does not accept common law marriage as a means for its own residents to contract marriage.

USCIS recognizes common law marriages for purposes of naturalization if the marriage was valid and recognized by the state in which the marriage was established. ^[17] This applies even if the naturalization application is filed in a jurisdiction that does not recognize or has never recognized the principle of common law marriage.

The officer should review the laws of the relevant jurisdiction on common law marriages to determine whether the applicant and spouse should be considered to be married for purposes of naturalization and when the marriage commenced.

[Boiler 45,947]

With a K1 it is up to the applicant to show that they are free to marry.

[KLL 7]

Additionally (USCIS POLICY MANUAL) https://www.uscis.gov/policy-manual/volume-2 :

 

"In order to be valid for immigration purposes, a same-sex marriage must meet all of the same requirements as an opposite-sex marriage. As with opposite-sex relationships, a civil union, domestic partnership, or other relationship that is not recognized as a legal marriage in the place of celebration is not considered a marriage for immigration purposes."

 

I also just found another poster on this forum who had the exact same situation as us (also spain, also pareja de hecho) and they were approved for the K1 and are now in the US.  They did not receive a RFE.  SO is there no standard/consistency?  It just depends on the consular officer?  I keep encountering advice that pareja de hecho is not marriage and therefore you cn not get CR1 with it.  Well if thats the case then it logically can not disqualify you from K1.  This is awfully confusing.

[powerpuff 6,747]

Yeah it really depends on the immigration officer... if he/she’s having a bad day, well that’s just that, it might result in RFE 🤷🏻‍♀️ 

[SalishSea 18,082]

1 hour ago, KLL said:

@Pinkrlion  You say this, but I pasted a direct quote from travel.state.gov that says the USCIS that says that it is determined by how it is viewed in the country where it was executed.  Do you have a source for this ?  I am genuinely interested in seeing that because I looked everywhere before I filed and the only thing I saw is :

 

"At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes."

 

Or on USCIS website:

 

"USCIS does not recognize the following relationships as marriages, even if valid in the place of celebration:

 

"Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration"

 

How could I think any different if this is what their own website?  

All the same, here at VJ we have indeed seen denials due to common-law marriages.

[Pinkrlion 2,724]

3 hours ago, KLL said:

@Pinkrlion  You say this, but I pasted a direct quote from travel.state.gov that says the USCIS that says that it is determined by how it is viewed in the country where it was executed.  Do you have a source for this ?  I am genuinely interested in seeing that because I looked everywhere before I filed and the only thing I saw is :

 

"At this time, only a relationship legally considered to be a marriage in the jurisdiction where it took place establishes eligibility as a spouse for immigration purposes."

 

Or on USCIS website:

 

"USCIS does not recognize the following relationships as marriages, even if valid in the place of celebration:

 

"Civil unions, domestic partnerships, or other such relationships not recognized as marriages in the place of celebration"

 

How could I think any different if this is what their own website?  

I have read from others that have faced the same issue with whatever they did USCIS considered it common law, so they denied K-1. Or the couple got a lawyer and they handled the issue.  Majority of them ended up just getting married. 

[AJ2019 58]

On 7/27/2020 at 10:14 AM, Melc said:

The law itself Ley 11/2001, de 19 de diciembre, de Uniones de Hecho de la Comunidad de Madrid:

https://www.boe.es/buscar/doc.php?id=BOE-A-2002-4374

Article 2.1.b. only states that married people who are not in a 'legal separation' are not allowed to be in a Pareja de hecho. 

Legal separation, also known as judicial separation, is a legal process by which married people can formalise a separation while remaining legally married. 

 

I do notice you seem to be using mostly secondary, English sources, rather than the law & governmental sources itself. They appear to be simplifications that don't quite address the legal nuances. 

Within Spain, a Pareja de Hecho is very similar to international civil partnerships. However, abroad they are rarely recognised. In that sense it is similar to common law marriages and other unions of the sort. 

 

OP can disband the Pareja de Hecho, or get married—which will automatically dissolve the union. If OP needs a document, they will have to apply to disband it. Otherwise you can get married and switch to CR1. 

Spanish isn't my primary language, and I didn't have any reason to believe that the other websites provided misinformation, and I posted it just in case you were under a misconception. I also was generally curious since I have never heard of this before.

 

Anyway, from Google rough translation from the link you provided:

Article 2. Personal requirements.

1. They may not constitute a de facto union in accordance with the rules of this Law:

(a) Non-emancipated minors and persons affected by a mental deficiency or anomaly who do not allow them to give their consent to the union validly.

b) Persons bound by the marriage bond not judicially separated.

c) People who form a stable union with another person.

d) Relatives in a straight line by inbreeding or adoption.

(e) Collateral relatives for inbreeding or adoption within the third degree.

2. The establishment of a stable, temporary couple may not be agreed or subject to condition.

 

I translate this to mean:

 

You can only get a de facto union (aka Paraja de Hecho) if you meet the following criteria:

 

1) You are not a minor, mentally deficient, or otherwise cannot consent.

2) You are not married, or if you are married, you must be judicially separated.

3) You are able to form a stable union with another person

4) You are not blood relatives

 

Hence, the Paraja de Hecho is akin to "union" that can be inferred as marriage, with some minor differences.

 

I'm not sure you can reason with the USCIS or show that the Paraja de Hecho is not a marriage; i.e., you are not free to marry when this "union" is premised upon you being single per se (as requirements above).

 

Also, I believe the requirements for a Paraja de Hecho is akin to requirements for marriage in I think almost all states. 

[Melc 138]

20 minutes ago, AJ2019 said:

Spanish isn't my primary language, and I didn't have any reason to believe that the other websites provided misinformation, and I posted it just in case you were under a misconception. I also was generally curious since I have never heard of this before.

 

Anyway, from Google rough translation from the link you provided:

Article 2. Personal requirements.

1. They may not constitute a de facto union in accordance with the rules of this Law:

(a) Non-emancipated minors and persons affected by a mental deficiency or anomaly who do not allow them to give their consent to the union validly.

b) Persons bound by the marriage bond not judicially separated.

c) People who form a stable union with another person.

d) Relatives in a straight line by inbreeding or adoption.

(e) Collateral relatives for inbreeding or adoption within the third degree.

2. The establishment of a stable, temporary couple may not be agreed or subject to condition.

 

I translate this to mean:

 

You can only get a de facto union (aka Paraja de Hecho) if you meet the following criteria:

 

1) You are not a minor, mentally deficient, or otherwise cannot consent.

2) You are not married, or if you are married, you must be judicially separated.

3) You are able to form a stable union with another person

4) You are not blood relatives

 

Hence, the Paraja de Hecho is akin to "union" that can be inferred as marriage, with some minor differences.

 

I'm not sure you can reason with the USCIS or show that the Paraja de Hecho is not a marriage; i.e., you are not free to marry when this "union" is premised upon you being single per se (as requirements above).

 

Also, I believe the requirements for a Paraja de Hecho is akin to requirements for marriage in I think almost all states. 

No problem, I didn’t mean to cause offence. I ran into the issue personally with our Pareja de Hecho not being recognised as equivalent in other countries. 
 

For the most part it is a quirky legal concept that exists in the context of people who, potentially for religious reasons, are unwilling to get divorced. It also pre-dates gay marriage in Spain, and provided a legal partnership option before 2005 when they legalised it. 
 

The fact that the unions automatically dissolve when you marry either your partner, or someone else, or in some cases even just move out of the autonomous region, mean that it’s no legal impediment to marriage. However, the specific interpretations differ from autonomous region to autonomous region, and certainly within Spain it confers almost all the benefits of marriage. So I can see how one might be considered “too married” by USCIS. 
 

Lastly, it does function as proof of an important concept within EU immigration law of “a stable and durable relationship analogous to marriage.” Giving full immigration benefits to unmarried couples. 

 

In our case, we simply got married after our Pareja de Hecho and applied for a spousal visa. 

Edited July 28, 2020 by Melc

[KLL 7]

@Melc  Thanks for the input.  Yes I looked up the law specific to catalunya and it very clearly states that not only does this union dissolve when one or both members get married, but also that someone already in another marriage but separated can enter into a civil partnership (both of which directly contradict the idea that the partnership prevents one from marrying)/  Additionally I read the law and it states that if you cohabitate with an individual for 2 years or for any period of time with a common child, you automatically gain civil partnership status.  It also does not provide the ability to file income taxes jointly, nor does it automatically give financial a widow the assets of the deceased inless a will has been drawn up in advance.  Essentially it is just clearly not a marriage, which is why I included the documentation with my application.

 

I am jsut going to have a translation of the law along with a statement from my lawyer explaining that this is not a marriage and why and I will explain why I included the document in my submission.  I hope this does the trick.  If not then it will be back to square one and I will most likely start from scratch with CR1.  I wish I had heard more perspectives on this board before making the decision to file K1, but at this point it seems to me that we are so close that it makes no sense to start over.

 

Again thanks for the advice.

[SteveInBostonI130 3,482]

On 8/4/2020 at 10:23 AM, KLL said:

@Melc  Thanks for the input.  Yes I looked up the law specific to catalunya and it very clearly states that not only does this union dissolve when one or both members get married, but also that someone already in another marriage but separated can enter into a civil partnership (both of which directly contradict the idea that the partnership prevents one from marrying)/  Additionally I read the law and it states that if you cohabitate with an individual for 2 years or for any period of time with a common child, you automatically gain civil partnership status.  It also does not provide the ability to file income taxes jointly, nor does it automatically give financial a widow the assets of the deceased inless a will has been drawn up in advance.  Essentially it is just clearly not a marriage, which is why I included the documentation with my application.

 

I am jsut going to have a translation of the law along with a statement from my lawyer explaining that this is not a marriage and why and I will explain why I included the document in my submission.  I hope this does the trick.  If not then it will be back to square one and I will most likely start from scratch with CR1.  I wish I had heard more perspectives on this board before making the decision to file K1, but at this point it seems to me that we are so close that it makes no sense to start over.

 

Again thanks for the advice.

KLL,

 

Please let us know the result/response from USCIS.  It may help other couples that face a similar situation in the future.

 

Good luck!

[Newhawaiki 20]

@KLL do you have any updates that you are willing to share?

 

This issue is terribly interesting, my fiance and I are here in Australia where I filed an I-129F for her in March. When things took a massive delay due to COVID we began looking at doing an Australian partner visa for me to stay in Australia. We hired an immigration lawyer who advised us to register our relationship ASAP, which we did in Queensland. In Queensland they call it a "civil partnership". We had to read a law statement concerning the legal effects of a civil partnership which said that a civil partnership IS NOT a marriage, and that "a person who is already married or in a civil union is not allowed to enter a civil union but someone in a civil union is allowed to be married." On that legal statement is says that marriage terminates a civil partnership.

 

We left the I-129F alone to see what would happen and we should be getting a response any day now. We were both on board with me staying here but then my fiance had a change of heart a week ago and wants to go to the U.S. on the I-129F, after reading your story I'm biting my teeth! 

 

Our difference to your story is that we didn't include any paperwork of our registered relationship in our packet because we did that way after we filed our I-129F. I can comprehend your scenario and I am compassionate with your issue: do you terminate the civill partnership and thus prove USCIS' point or do you risk leaving it alone but get rejected? Just wow, that is so unreal and mind boggling. 

Edited October 16, 2020 by Newhawaiki