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(a)(15)(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 8 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(a)(15)(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 |