SOUZA

Interim Decision #2117

MATTER OF SOUZA
In Visa Petition Proceedings

A-18550615

Decided by Regional Commissioner January 3, 1972
Where the visa petition to accord beneficiary nonimmigrant classification under
section 101(aX15)(K) of the Immigration and Nationality Act, as amended, as
the alien fiancee of the U.S. citizen petitioner, was filed between the date
beneficiary obtained a decree nisi in divorce proceedings against her first
husband and the date that decree became final, the visa petition is denied
since beneficiary's divorce was not absolute and was open to legal challenge
until the latter date; further, instructions on Form I-129F, which, pursuant to
S CFR 103.2, are incorporated into the regulations, require that both the
petitioner and beneficiary must be unmarried at the time the petition is filed.
IN BEHALF OF PETITIONER: Martin T. Camacho, Esquire
31 State Street
Boston, Massachusetts 02109

This matter is before the Regional Commissioner on appeal from
the denial of the petition to accord the beneficiary nonimmigrant
classification as the fiancee of a United States citizen under
section 101(015)(K) of the Immigration and Nationality Act, as
amended.
The beneficiary is a 23-year-old Portuguese citizen, born in the
Azores, who was admitted to the United States on August 25, 1969
as a temporary visitor for pleasure until December 21, 1969. She
was married on November 27, 1969 to Ronald Souza, a 32-year-old
native-born United States citizen, who filed an immediate relative
petition in her behalf on December 22, 1969. The petition was
approved by this Service on December 30, 1969 and, on February 2,
1970, the alien applied for permanent residence. Her husband
subsequently withdrew his petition on August 8, 1970, stating that
his wife has refused to live with him and had gone to reside with
relatives. The beneficiary's application for adjustment was there-
after denied August 24, 1970 on the ground that an immigrant
visa number was not immediately available to her, and she was
given until September 8, 1970 to depart from the United States.
Her failure to leave resulted in the institution of deportation
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proceedings on February 5, 1971. On May 4, 1971, she was granted
the privilege of voluntary departure, with an alternate order of
deportation being entered in the event she failed to leave when
and as required.
The record in this matter further discloses that the beneficiary
subsequently initiated annulment proceedings against her hus-
band based on allegations of fraud, misrepresentation, and non-
consummation of the marriage. The action was dismissed on June
25, 1971 inasmuch as the allegation of fraud had not been sus-
tained.
A libel for divorce was thereafter filed in behalf of the alien in
the Bristol County Probate Court, Bristol, Massachusetts and was
heard on September 14, 1971. A decree nisi was entered in her
favor that date on the ground of cruel and abusive treatment, the
decree to become absolute upon the expiration of six months. The
alien subsequently departed from the United States on October 9,
1971. The instant petition was filed in her behalf on November 10,
1971 by Michael J. Flint, a 20-year-old native-born United States
citizen. The District Director denied this petition on the ground
that the beneficiary is not unmarried and, therefore, is not free to
conclude a valid marriage within ninety days after entry into the
United States.
In connection with the appeal from the District Director's
decision, oral argument was heard at Burlington, Vermont on
December 1'7, 1971. It has been stated by counsel that the statute
merely requires the petitioner and beneficiary be free to conclude
a valid marriage within ninety days after the alien's admission;
that, in the instant case, the petitioner requests the issuance of a
nonimmigrant visa as of January 14, 1972, which will be exactly
four months after the decree nisi was entered in the beneficiary's
favor; that if she is admitted to this country subsequent to
January 14, 1972, she will be free to marry on or after March 14,
1972 when the decree becomes absolute; that such marriage will
be contracted within thirty days thereafter, thus complying with
the ninety-day period specified in the statute; that in the unlikely
event the divorce does not become final and the ,marriage cannot
occur, the law will require the alien to depart from the United
States. It has been asserted that since the beneficiary was the one
who brought the divorce action and the 21-day appeal time has
run out for her former husband, the chances are practically nil
that the decree nisi will be set aside. Counsel has further stated
that the petitioner and beneficiary have met and seen each other;
that, to the hest of his knowledge, they became acquainted after
the divorce action was initiated and knew each other for approxi-
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mately two months prior to the filing of the petition; that they are
about the same age and very sincere in their desire to marry.
The entire record in this case has been very carefully reviewed
in the light of the representations made on appeal. Section 214(d)
of the Act, as amended, provides in part:
A visa shall not be issued under the provisions of section 1D1(a)(15XK) until the
consular officer has received a petition filed in the United States by the fiancee
or fiance of the applying alien and approved by the Attorney General. The
petition shall be in such form and contain such information as the Attorney
General shall, by regulation, prescribe. It shall be approved only after satisfac-
tory evidence is submitted by the petitioner to establish that the parties have a
bona fide intention to marry and are legally able and actually willing to anwludo
a valid marriage in the United States within a period of ninety days after the
alien's arrival. In the event the marriage with the petitioner does not occur
within three months after the entry of the said alien and minor children, they
shall be required to depart from the United States and upon failure to do so shall
be deported in accordance with sections 242 and 243.... (Emphasis supplied.)
In the matter at hand, the divorce decree nisi dated September
14, 1971 states that "upon and after the expiration of six months
from the entry of this decree it shall become and be absolute
unless, upon the application of any person interested within such
period, the Court shall otherwise order." Deapite counsel's insist-
ence that the chances are extremely remote that the decree will be
set aside, the fact remains that the divorce could be challenged
legally within the six-month period and, if set aside, the alien
would not be free to marry. Moreover, the statute contemplates
that the peitioner and beneficiary be free to marry during all, and
not merely part, of the ninety-day period following the alien's
admission to the United States. This position is supported by the
instructions in Form I-129F which states in pertinent part:
1. Eligibility. A petition may be filed only by an unmarried citizen of the
United _States to classify the status of the alien beneficiary as a
nonimmigrant fiancee or fiance who seeks to enter the United States
solely to conclude a valid marriage with the petitioner within ninety
days after entry into the United States. The beneficiary must also be
unmarried and free to validly marry the petitioner. (Emphasis supplied.)
In accordance with the above instructions, both the petitioner
and the beneficiary must be unmarried and free to validly marry
at the time the petition is filed. It is provided in 8 CPR, 103.2 that
the instructions on applications, petitions and other documents on
prescribed forms are incorporated into the particular section of the
regulations requiring their submission. Under the circumstances
the instant beneficiary, whose divorce is not yet final, does not
meet the regulatory requirement for classification as the fiancee
of a United States citizen. Accordingly, this appeal will be dis-
missed.
IT IS ORDERED that the appeal be and same is hereby
dismissed.
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