BALODIS

Interim Decision #2805




                                MATTER OF BALODIS
                          In Visa Petition Proceedings

                                      A-22171332
         Decided by Regional Commissioner February                      12, 1980

(1) Classification under section 101(a)(15)(K) of the Act, 8 U.S.C. 1101(a)(15)(K), may be
  granted an alien beneficiary if it is established that: (1) The petitioner is a citizen of
  the United States; (2) is free to marry; (3) is able and intends to enter into a lawful
  marriage with the beneficiary within ninety days after arrival in the United States;
  and (4) the beneficiary is similarly able and intends to marry the petitioner within the
  specified time.
(2) Although Michigan law prohibits marriage between first cousins (Mich. Comp. Laws
  Anne. I 551.3), the prohibition does not apply to a marriage solemnized elsewhere.
(3) A marriage which is valid where contracted is recognized as valid in the state of
  Michigan despite the fact that it would be invalid if contracted in Michigan.
ON BEHALF OF PETrriONER: Paul J. Sullivan, Esquire
                                211-K Waters Building
                                Grand Rapids, Michigan 49503


  This matter is before the Regional Commissioner on appeal from the
District Director's decision of November 2, 1979, denying the petition
to classify the beneficiary as the fiancee of a United States citizen
under section 101(a)(15)(K) of the Immigration and Nationality Act, 8
U.S.C. 1101(a)(15)(K), as amended.
   The petitioner is a 55-year-old native of Latvia and a naturalized
citizen of the United States. The beneficiary is a 47-year old native and
citizen of Latvia. The two have met, and are related to each other as
first cousins. The petitioner is, a resident of Michigan and the couple
intend to reside there after they are married.
   Classification under section 101(a)(15)(K) of the Act may only be
accorded the alien beneficiary if it is established that: (1) the petitioner
is a citizen of the United States; (2) is free to marry; (3) is able and
intends to enter into a lawful marriage with the beneficiary within
ninety days after her arrival in the United States; and (4) the beneficiary is similarly able and intends to marry the petitioner within the
specified time.
                                            428
                                                   Interim Decision #2805
  The District Director noted that Michigan law precludes marriage
between first cousins (

). Therefore, the
District Director concluded that the petitioner and beneficiary are
unable to conclude a valid marriage and the petition was denied.
  On appeal the petitioner, through counsel, convincingly argues that
the petition must be approved since the petitioner and the beneficiary
are free to conclude a valid marriage, although admittedly they are
unable to do so in Michigan. Over one-fourth of the states do recognize
as valid a marriage between first cousins. Nevertheless, the District
Director contends that because the couple will reside in Michigan their
prospective marriage will not be recognized as valid in Michigan. The
applicable case law clearly rejects the District Director's position.
   The statutory prohibition, of marriage between first cousins applies
only to those marriages solemnized in Michigan, Toth v. Toth, 

, 

 (1973), and does not apply to marriages
solemnized elsewhere. In re Miller's Estate, 

, 

(1927). Accordingly, a marriage which is valid where contracted is
recognized as valid in Michigan despite the fact that it would be invalid
if contracted in Michigan. Noble v. Noble, 

, 

(1941); In re Miller's Estate, supra.
   We need not concern ourselves with the law regarding incest
between first cousins, 

, because this
prohibition does not apply where the first cousins have entered into a
marriage valid where solemnized. In re Miller's Estate, supra. Neither
need we be concerned with the situation where a marriage validly
contracted in another state solely to evade the statutory prohibitions
in the parties' state of residence may be held invalid where the law of
the parties' state of residence so specifies. See, e.g., Matter of Zappia,

 (BIA 1967). Here, Michigan does permit the first cousins
to leave the state solely to contract a lawful marriage in a state which
recognizes marriages between first cousins, and such marriage shall be
held good upon their return to Michigan. 1939-40 Op. Mich. Atty. Gen.
177.
   In view of the foregoing, I find that the petitioner and the beneficiary
will be able to enter into a valid marriage outside of Michigan and to
have that marriage recognized as valid upon their return to reside in
Michigan. The record establishes that the parties do intend to enter
into a lawful marriage within the specified time. Accordingly, the
provisions of section 101(a)(15)(K) of the Act have been satisfied. The
District Director's decision will be reversed and the petition approved.
  ORDER' The appeal is sustained and the petition is approved.