The Marriage Fraud Bar to Petition Approval

by Joseph P. Whalen

In Re: 18000204 (AAO June 16, 2022)[1] is a non-precedent AAO remand of an alien investor’s I-526 immigrant visa petition denial that was based on the marriage fraud bar found in INA § 204(c); 8 USC § 1154(c). The remand was based on the IPO Chief’s failure to discuss the evidence in the record and properly articulate how it meets the appropriate standard of proof. The standard to be applied to such a finding was quite recently discussed in Matter of P. Singh, 27 I&N Dec. 598 (BIA 2019) which clarified that the "central question in determining whether a sham [or fraudulent] marriage exists is whether the parties intended to establish a life together at the time they were married." Id. at p. 601.

AAO further noted and explained “Matter of P. Singh clarifies that substantial and probative evidence of marriage fraud, which triggers the bar to a petition's approval under Section 204(c) of the Act, means evidence establishing "that it is more than probably true that the marriage [was] fraudulent." Id., 2 7 I&N Dec. at 607. The requisite degree of proof is lower than clear and convincing evidence, but higher than a preponderance of evidence, the normal standard of proof in petition proceedings. Id. Because Matter of P. Singh is a precedent decision, all USCIS officers must follow it in proceedings involving the marriage fraud bar under Section 204(c) of the Act. See 8 C.F.R. § 103 .1 0(b). However, in this case, the Chief did not include a discussion on Matter of P. Singh or the substantial and probative nature of the evidence of marriage fraud.” In Re: 18000204 (AAO June 16, 2022) at p. 2. Due to the nature of the evidence that was mentioned but not thoroughly discussed in the AAO remand decision, the final decision could have gone either way.

Matter of P. Singh held:

(1) The standard of proof necessary to bar the approval of a visa petition based on marriage fraud under section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2012), is “substantial and probative evidence.”

(2) The degree of proof necessary to constitute “substantial and probative evidence” is more than a preponderance of evidence, but less than clear and convincing evidence; that is, the evidence has to be more than probably true that the marriage is fraudulent.

(3) The nature, quality, quantity, and credibility of the evidence of marriage fraud contained in the record should be considered in its totality in determining if it is “substantial and probative.”

(4) The application of the “substantial and probative evidence” standard requires the examination of all of the relevant evidence and a determination as to whether such evidence, when viewed in its totality, establishes, with sufficient probability, that the marriage is fraudulent.

(5) Both direct and circumstantial evidence may be considered in determining whether there is “substantial and probative evidence” of marriage fraud under section 204(c) of the Act, and circumstantial evidence alone may be sufficient to constitute “substantial and probative evidence.”

Id. at p. 1 [Emphasis added.]  The consequences of being found to have committed marriage fraud are substantial. An administrative finding of marriage fraud is sufficient by itself. There is no legal mandate that it be prosecuted criminally but that option remains available for the government to pursue. Afterall, fraud against the government involves moral turpitude but to add the consequences of a CIMT may be viewed as “overkill” when one is blocked from petition approval already without the need to go further.   

Footnote 4 from Matter of P. Singh reads as follows:

“Section 204 of the Act was amended in 1965 to add the marriage fraud provision at section 204(c). Act of October 3, 1965, Pub. L. No. 89-236, §4, 79 Stat. 911, 915. Section 204(c) has subsequently been amended twice. Immigration and Technical Corrections Act of 1988, Pub. L. No. 100-525, § 9(g), 102 Stat. 2609, 2620; Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, § 4(a), 100 Stat. 3537, 3543. The legislative history of section 204(c) does not indicate what evidentiary standard Congress intended to apply; nor does it explain why Congress did not specify a standard.”

Since Congress did not specify a particular standard, one had to be crafted through adjudications. In its June 16, 2022, remand decision, AAO explicitly directed the Chief to be more thorough in the analysis and explanation if the new decision is still to deny the I-526.

“On remand, the Chief should review the record in its entirety and conduct a proper independent analysis of the applicability of Section 204(c) of the Act. This should include reviewing:

(1) evidence discussed in the November 2004 decision denying the Petitioner's Petition to Remove Conditions on Residence (Form I-751);

(2) evidence discussed in the June 2014 decision denying the Petition for Alien Relative (Form I-130) filed by the Petitioner's current spouse;

(3) documents associated with the Petitioner's 2015 expedited removal from the United States upon a finding that he was inadmissible under Section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for “appear[ing] to have engaged in marriage fraud";

(4) two Forms G-166C, Memorandum of Investigation, memorializing statements that the Petitioner and building supervisor made to immigration officers in November 2004; and

(5) al 12004 Forml-213, Record of Deportable/Inadmissible Alien, concerning the Petitioner.2 If, pursuant to Matter of P. Singh, the Chief concludes that the evidence establishes the Petitioner "more than probably" engaged in marriage fraud, the Chief should deny the petition under Section 204(c) of the Act, and notify the Petitioner and explain how the evidence meets the standard of proof.3 **

2 On appeal, the Petitioner alleges that an immigration judge had deemed the two Forms G-l 66C and the Form 1-213 inadmissible in immigration court. The Petitioner, however, has not submitted evidence specifically confirming such a finding by the immigration judge. Regardless, the Petitioner has not shown that an alleged evidentiary finding by an immigration judge is binding on USCIS in its adjudication of the petition.

3 Pages 5 and 6 of the Chiefs decision discuss waivers of inadmissibility that the Petitioner must request to gain admission to the United States. These waivers, or the Petitioner's need for them, however, are not relevant to whether he is eligible for the Form 1-526 petition or whether he is barred from being approved the petition under Section 204(c) of the Act.”

Supra at p. 2 [**Reformatting added.] It seems that the Chief had a lot to consider in the revised analysis in that two full blown analyses already underlie the current petition adjudication and appear to be supported by further documentary evidence. AAO has returned to this theme numerous times in the past.

Here is a blurb that pops up in AAO and BIA decisions very frequently.

Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)).

The above is a valid statement but only addresses one side of the story. As AAO has pointed out innumerable times the adjudicator has a legal responsibility to analyze the evidence and explain how it supports their adjudicative actions whether in a request for evidence (RFE), a notice of intent to deny, revoke, or terminate (NOID, NOIR, or NOIT), and their final adverse decision.

“… When denying a petition, a director has an affirmative duty to explain the specific reasons for the denial; this duty includes informing a petitioner why the evidence failed to satisfy its burden of proof pursuant to section 291 of the Act, 8 U.S.C. § 1361. See 8 C.F.R. § 103.3(a)(1)(i). …”

Matter of BW-M-, LLC, ID# 13933 (AAO Oct. 16, 2015) at 12. OCT162015_01B4203.pdf  Beyond the citations relied upon by AAO, such procedures underpin all of government adjudications as has been the law since June 11, 1946, with the passage of the Administrative Procedures Act (APA), 5 USC § 500 et seq as follows.

§555. Ancillary matters

(a) This section applies, according to the provisions thereof, except as otherwise provided by this subchapter.


(e) Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 385 .)

§557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record


(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit for the consideration of the employees participating in the decisions-

(1) proposed findings and conclusions; or

(2) exceptions to the decisions or recommended decisions of subordinate employees or to tentative agency decisions; and

(3) supporting reasons for the exceptions or proposed findings or conclusions.

    The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of-

(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and

(B) the appropriate rule, order, sanction, relief, or denial thereof.

          When there is a right of appeal or to challenge an adverse decision in court the reviewing body tend to look at similar issues.  The APA spells out the standard for judicial review which can be readily applied to administrative review as well.

5 USC §706. Scope of review

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

( Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 393 .)

            The penalty that attaches to a finding of marriage fraud is that no immigration benefits can be bestowed for which one needs a petition to be approved. Which petitions? Every petition unless the other provision contains and exemption from this prohibition or the alien may be granted a waiver. That does not mean only relative petitions or employment-based, and it is not limited to immigrant petitions but includes nonimmigrant petitions, unless excepted. It is sometimes difficulty to determine if a waiver is available. Sometimes an alien appears prima facie eligible for a waiver but would still be inadmissible because their petition cannot be granted or was inadvertently granted before a fraudulent marriage was detected and is not revokable.

8 USC §1154 (INA §204(c)] Procedure for granting immigrant status

(c) Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud

Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General [Secretary of Homeland Security] to have been entered into for the purpose of evading the immigration laws, or (2) the Attorney General [Secretary of Homeland Security] has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

8 USC §1182 (INA §212) Inadmissible aliens

(a) Classes of aliens ineligible for visas or admission

Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(6) Illegal entrants and immigration violators

    (C) Misrepresentation

(i) In general

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.

(ii) Falsely claiming citizenship

(I) In general

Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.

(II) Exception

In the case of an alien making a representation described in subclause (I), if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making such representation that he or she was a citizen, the alien shall not be considered to be inadmissible under any provision of this subsection based on such representation.

(iii) Waiver authorized

For provision authorizing waiver of clause (i), see subsection (i).

For the vast majority of aliens who are determined to have entered or tried to enter a marriage in order to evade the immigration laws, they’re screwed and its their own damn fault. Unless that person is eligible for asylum, withholding of removal under the INA or CAT, deferred enforced departure (DED), or temporary protected status (TPS), they will be ordered removed. If and when said removal ever happens is a separate issue deserving of deeper discussion.

[1] See:

About The Author

Joseph P. Whalen is an independent EB-5 consultant, advocate, trainer and advisor.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.