I filed an I-130 petition for my spouse that has been denied. The reason, as I understand it (See letter below), is that we had not satisfied the criteria of consummation of marriage prior to filing the petition. So, as I understand it, all I need to do is submit a new petition (which will be dated AFTER we have consummated) with the same evidence. However, the last paragraph in the letter confuses me. Is it saying that I don't have enough documentation to establish the relationship even if I file a new petition? please advise on the proper interpretation of this letter.
Here is a copy of the reason for denial letter:
The petitioner filed Form I-130, Petition for Alien Relative, for classification of the beneficiary under section 201(b)(2)(A)(i) of the Immigration and Nationality Act, as a spouse of a United States citizen.
Section 201(b)(2)(A)(i) of the Act provides for granting of immediate relative visa classification to “children, spouses and parents of citizens of the United States”
8 C.F.R. 204.2(a)(2) states, in part:
Evidence for petition for a spouse. In addition to evidence of United States citizenship or lawful permanent residence, the petitioner must also provide evidence of the claimed relationship. A petition submitted on behalf of a spouse must be accompanied by…a certificate of marriage issued by civil authorities, and proof of the legal termination of all previous marriages of both the petitioner and the beneficiary…
Section 101(a)(35) of the Act states:
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 shall have been consummated.
After initial review of the petition and supporting documentation, it was determined that the petitioner and the beneficiary were involved in a proxy marriage on January [XX],2009 in Karachi, Pakistan. It appear that the proxy marriage in question is legally valid in that Karachi, Pakistan; however, for immigration purposes, a proxy marriage must be consummated subsequent to the marriage to satisfy section 1010(a)(35) of the Act. Matter of B, 9 I&N Dec. 698 (BIA 1954).
The documentary evidence initially submitted with the petition was insufficient to establish eligibility for the benefit sought. As such, on April 20, 2010, the petitioner was sent a Request for Evidence that addressed the deficiencies. The petition was advised to submit evidence that the marriage had been, in fact, consummated subsequent to the marriage. A marriage is deemed to have been consummated when it is established that both spouses were in the same place at the same time.
The petitioner responded to our request on May 17, 2010 and submitted the following
• Signed statement between the petitioner and beneficiary;
• Photographs of the petitioner and beneficiary together;
• Signed statement by a third party;
• Copy of the petitioner’s passport and boarding passes.
The petitioner did not submit sufficient documentary evidence to establish the relationship.
The evidence does not show that the petitioner and beneficiary’s marriage is valid at the time of filing. The petitioner and beneficiary married by proxy on January [XX], 2009. The petition was filed on January 20, 2010. The signed statements are all dated May [XX], 2010 and the photographs do not indicated a date on which the petitioner and beneficiary were photographed together. Additionally, the petitioner’s passport shows entry to the beneficiary’s country of residence on May [XX], 2010. The boarding passes show that the petitioner left Houston, Texas on May [XX] and entered Karachi, Pakistan on May [XX]. There dates correspond with the stamps shown on the petitioner’s passports. However, the evidence does not demonstrate that the proxy marriage was consummated subsequent to the marriage and before the time of filing the petition.
At the time the petitioner filed this petition, the beneficiary was not fully qualified for the benefit sought. Additionally, the petitioner has not submitted sufficient documentary evidence to establish that the beneficiary qualifies as a spouse pursuant to Section 101(a)(35) of the Act. As such, it has not been shown that the beneficiary qualifies for classification under section 201(b)(2)(A)(i) of the Act. Therefore, the petition is denied.