Overcoming Finding of Prior Marriage Fraud

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U.S. citizens may petition for their immediate relatives to join them in the U.S. Qualified immediate relatives of a U.S. citizen include the spouse, minor unmarried children under 21, and parents as long as the petitioning US citizen child is at least 21.

 

A visa number is immediately available to the immediate relative of a U.S. citizen. This means that qualified relatives who are already in the U.S. may adjust status right away. Those who are living outside the U.S. will have to apply for an immigrant visa at a U.S. consulate abroad.

The process of sponsoring a relative for a green card is initiated by filing a Form I-130 petition with the USCIS. To sponsor a “spouse”, there must be a valid and subsisting marriage between the petitioner and the beneficiary.

U.S. immigration laws will not accept as valid polygamous or incestuous marriages. Common-law spouses may benefit depending on the laws of the country where the common-law marriage takes place. Same-sex marriage is also recognized. The validity of a marriage for immigration benefits is determined by the law of the place where the marriage took place and not the place of domicile. 

The parties must have entered into the marriage with the intent of establishing a life together as husband and wife. If the USCIS finds that the marriage was entered into solely for immigration benefits, the marriage is considered fraudulent and will not be recognized for immigration purposes.

Section 204(c) of the Immigration and Nationality Act (INA) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or LPR and the prior marriage was found to be a sham.

In a recent case, the Board of Immigration Appeals (BIA) set aside the decision of the Field Office Director of the USCIS revoking the approval of a visa petition on the ground of prior marriage fraud.

In that case, the BIA pointed out that visa petitions on behalf of aliens who have attempted or conspired to enter into marriage solely for the purpose of evading immigration laws cannot be approved. However, there must be “substantial and probative” evidence that the prior marriage was fraudulent.

The BIA noted that the USCIS officer issued the Notice of Intent to Revoke (NOIR) based on the fact that the beneficiary and the petitioner gave “radically different versions regarding their activities on the evening prior to their separate sworn testimony before an officer of the USCIS.”

However, upon review, the BIA found that the NOIR and the denial notice made no reference to any inconsistencies between their testimonies during the interview.

The record also showed that the Immigration Judge denied the beneficiary’s request for continuance of the removal proceedings pending the adjudication of her appeal of the denied petition, based in part, on the conclusion that the marriage between the beneficiary and the petitioner was not bona fide. The Immigration Judge separately asked the couple concerning their activities the night before the hearing and both provided different answers.

The BIA noted that the “radically different” testimonies were not made before a USCIS officer as alleged in the NOIR but before the Immigration Judge. It also pointed out that the evidence is insufficient to establish by clear and convincing evidence that the prior marriage of the beneficiary to the petitioner was not bona fide. A determination that the beneficiary’s prior marriage was fraudulent, according to the BIA, requires a higher standard of proof. 

The BIA therefore sustained the appeal absent substantial and probative evidence of prior marriage fraud and remanded the case to the USCIS for further consideration of the visa petition.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)