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 thereafter 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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Interim Decision #2117 

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 husband based on allegations of fraud, misrepresentation, and nonconsummation of the marriage. The action was dismissed on June 

25, 1971 inasmuch as the allegation of fraud had not been sustained. 

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 approxi2 
Interim. Decision #2117 

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 satisfactory 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 insistence 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 dismissed. 

IT IS ORDERED that the appeal be and same is hereby 

dismissed. 3