Administrative Review Brief to AAO on Marriage Fraud Bar to Petition Approval

by Joseph P. Whalen


UNITED STATES DEPARTMENT OF HOMELAND SECURITY (DHS)

UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES (USCIS)

ADMINISTRATIVE APPEALS OFFICE (AAO)

WASHINGTON, DC

 

 ADMINISTRATIVE REVIEW BRIEF

 

 ON MARRIAGE FRAUD BAR TO PETITION APPROVAL

 

 

I. Introduction

The Immigration and Nationality Act (INA) [8 USC § 1101 et seq.] embodies the primary Immigration Law of the United States. It describes benefits and penalties

II. Recent Precedent Decisions

On October 8, 2020, the BIA issued the Precedent Decision Matter of Pak, 28 I&N Dec 113 (BIA 2020)[1] which held:

  Where there is substantial and probative evidence that a beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading the immigration laws, a subsequent visa petition filed on the beneficiary’s behalf is properly denied pursuant to section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2018), even if the first visa petition was denied because of insufficient evidence of a bona fide marital relationship.

          Another significant recent BIA precedent is Matter of P. Singh, , 27 I&N Dec. 598 (BIA 2019),[2] decided on August 23, 2019, and 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."

III. AAO Non-Precedent Partial Search Results for “204(c)”

The issue of the marriage bar crosses multiple visa categories. The following items are a mere sample of what is available for study.

May 16 2022 - Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National Interest Waiver)

            In Re: 07375564 (AAO May 16, 2022)

www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2022/MAY162022_01B5203.pdf

May 13 2022 - Immigrant Petition by Alien Entrepreneur

               In Re: 5484989 (AAO May 13, 2022)

www.uscis.gov/sites/default/files/err/B7%20-%20Immigrant%20Petition%20by%20Alien%20Entrepreneur,%20Sec.%20203(b)(5)%20of%20the%20INA/Decisions_Issued_in_2022/MAY132022_01B7203.pdf

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.

Apr 04 2022 - Petition for Battered or Abused Spouse or Child under VAWA

In Re: 17536062  (AAO April 4, 2022)

www.uscis.gov/sites/default/files/err/B9%20-%20Battered%20Spouse%20or%20Child/Decisions_Issued_in_2022/APR042022_03B9204.pdf 

The Petitioner contends that "the derogatory evidence in this case does not truly rise to the 'substantial and probative' standard of proof required" for section 204(c) of the Act, 8 U.S.C § 1154(c), to bar the approval of his petition. She argues that we gave undue weight to her ex-husband's statement that he had received $2,000 to marry the Petitioner and was to be paid another $2,000 after successfully completing the immigration interview. According to the Petitioner, due process principles should apply here and she did not have the opportunity to rebut her ex-husband's statement. She also claims that although we discussed the Petitioner's psychological evaluation, we did not consider all of the medical evidence in the record, including the psychologist's finding that the Petitioner married her ex-husband in good faith.

            Id. at p. 1

Mar 21 2022 - Immigrant Petition for Alien Worker (Professionals and Other Workers)

            In Re: 19418448 (AAO March 21, 2022) 

www.uscis.gov/sites/default/files/err/B6%20-%20Skilled%20Workers,%20Professionals,%20and%20Other%20Workers/Decisions_Issued_in_2022/MAR212022_02B6203.pdf

On April 6, 2021, the Director issued a notice of intent to revoke (NOIR) the approval. In the NOIR the Director stated that it appeared the Petitioner did not provide complete, true, and correct information on the Form I-140 regarding the previous applications and petitions filed by, and on behalf of, the Beneficiary - in particular, a couple of Forms I-130, Petition for Alien Relative, filed by the Beneficiary's wife, and several adjustment of status applications (Forms I-485) filed by the Beneficiary - and that these proceedings led to determinations by U.S. Citizenship and Immigration Services (USCIS), affirmed by the Board of Immigration Appeals (BIA), that the Beneficiary failed to establish that he had entered into a bona fide marriage, rather than a sham marriage for the purpose of evading immigration laws. Under section 204(c) of the Act, therefore, the Beneficiary's I-140 petition would not be approvable.

Id. at p. 2

IV. The Statutory Bar

            INA § 204 [8 U.S.C § 1154] 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.

V. Pertinent Regulation Implementing the Marriage Bar

            8 CFR § 204.2 Petitions for relatives, widows and widowers, and abused spouses and children.

(a) Petition for a spouse -

(1) Eligibility. A United States citizen or alien admitted for lawful permanent residence may file a petition on behalf of a spouse.

(i) Marriage within five years of petitioner's obtaining lawful permanent resident status.

(A) A visa petition filed on behalf of an alien by a lawful permanent resident spouse may not be approved if the marriage occurred within five years of the petitioner being accorded the status of lawful permanent resident based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, unless:

(1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purposes of evading the immigration laws; or

(2) The marriage through which the petitioner obtained permanent residence was terminated through death.

(B) Documentation. The petitioner should submit documents which cover the period of the prior marriage. The types of documents which may establish that the prior marriage was not entered into for the purpose of evading the immigration laws include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) A lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

(5) Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship. (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer about the information contained in the affidavit. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

(6) Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States.

(C) The petitioner must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws. Failure to meet the “clear and convincing evidence” standard will result in the denial of the petition. Such a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence. The director may choose to initiate deportation proceedings based upon information gained through the adjudication of the petition; however, failure to initiate such proceedings shall not establish that the petitioner's prior marriage was not entered into for the purpose of evading the immigration laws. Unless the petition is approved, the beneficiary shall not be accorded a filing date within the meaning of section 203(c) of the Act based upon any spousal second preference petition.

(ii) Fraudulent marriage prohibition. Section 204(c) of the Act prohibits the approval of a visa petition filed on behalf of an alien who has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The director will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence of such an attempt or conspiracy, regardless of whether that alien received a benefit through the attempt or conspiracy. Although it is not necessary that the alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the evidence of the attempt or conspiracy must be contained in the alien's file.

(iii) Marriage during proceedings - general prohibition against approval of visa petition. A visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto. Determination of commencement and termination of proceedings and exemptions shall be in accordance with § 245.1(c)(9) of this chapter, except that the burden in visa petition proceedings to establish eligibility for the exemption in § 245.1(c)(9)(iii)(F) of this chapter shall rest with the petitioner.

(A) Request for exemption. No application or fee is required to request an exemption. The request must be made in writing and submitted with the Form I-130. The request must state the reason for seeking the exemption and must be supported by documentary evidence establishing eligibility for the exemption.

(B) Evidence to establish eligibility for the bona fide marriage exemption. The petitioner should submit documents which establish that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien's entry as an immigrant. The types of documents the petitioner may submit include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) Lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and beneficiary;

(5) Affidavits of third parties having knowledge of the bona fides of the marital relationship (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit. Affidavits must be sworn to or affirmed by people who have personal knowledge of the marital relationship. Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship to the spouses, if any. The affidavit must contain complete information and details explaining how the person acquired his or her knowledge of the marriage. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph); or

(6) Any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States.

(C) Decision. Any petition filed during the prohibited period shall be denied, unless the petitioner establishes eligibility for an exemption from the general prohibition. The petitioner shall be notified in writing of the decision of the director.

(D) Denials. The denial of a petition because the marriage took place during the prohibited period shall be without prejudice to the filing of a new petition after the beneficiary has resided outside the United States for the required period of two years following the marriage. The denial shall also be without prejudice to the consideration of a new petition or a motion to reopen the visa petition proceedings if deportation or exclusion proceedings are terminated after the denial other than by the beneficiary's departure from the United States. Furthermore, the denial shall be without prejudice to the consideration of a new petition or motion to reopen the visa petition proceedings, if the petitioner establishes eligibility for the bona fide marriage exemption contained in this part: Provided, That no motion to reopen visa petition proceedings may be accepted if the approval of the motion would result in the beneficiary being accorded a priority date within the meaning of section 203(c) of the Act earlier than November 29, 1990.

(E) Appeals.## The decision of the Board of Immigration Appeals concerning the denial of a relative visa petition because the petitioner failed to establish eligibility for the bona fide marriage exemption contained in this part will constitute the single level of appellate review established by statute.

(F) Priority date. A preference beneficiary shall not be accorded a priority date within the meaning of section 203(c) of the Act based upon any relative petition filed during the prohibited period, unless an exemption contained in this part has been granted. Furthermore, a preference beneficiary shall not be accorded a priority date prior to November 29, 1990, based upon the approval of a request for consideration for the bona fide marriage exemption contained in this part.

##Although the regulation has not been updated to reflect changes made since they were written, administrative appellate authority shifted from the BIA to AAO when Homeland Security was created.

VI. Immigration Marriage Fraud Amendments[3]

A note below 8 USC § 1154 reads, in part:

Pub. L. 100–525, §7(d), Oct. 24, 1988, 102 Stat. 2617 , provided that: "The amendments made by this section [amending this section, sections 1186a and 1255 of this title, and provisions set out as a note below] shall be effective as if they were included in the enactment of the Immigration Marriage Fraud Amendments of 1986 [Pub. L. 99–639]."

Congress made marriage fraud a crime punishable with jail time and heavy fines. Also, you could get taken advantage of by the phony spouse. Maybe your phony spouse wants to collect on your life insurance? Maybe they will beat and rape you? Maybe they will get you arrested on some trumped up charge? Only a fool would be involved in a sham marriage!

VII. Conclusion

Congress took serious enough notice of the problem of marriage fraud or as popularly known “greencard marriages” or sham marriages to enact legislation to punish it.  That punishment can come as an administrative denial of immigrant visa petitions or as criminal prosecution, or both.

ICE has a brochure to warn people away from participating in sham marriages. Here is some information quoted from that brochure:[4]

“Types of Marriage Fraud

  • A U.S. citizen is paid, or asked to perform a favor, to marry a foreign national already residing in the United States;
  • “Mail-order” marriage where either the U.S. citizen or alien knows it is a fraud; and,
  • A foreign national defrauds a U.S. citizen who believes the marriage is legitimate.

Penalties

An individual will be charged with marriage fraud if they entered into a marriage for the purpose of evading U.S. immigration law. This felony offense carries a prison sentence of up to five years and a fine of up to $250,000, and applies to both foreign nationals and U.S. citizens who perpetrate this crime.

Those charged with marriage fraud may also be charged with visa fraud, harboring an alien, conspiracy and making false statements; each charge carries additional prison sentences and financial penalties.”

 

[1] https://www.justice.gov/eoir/page/file/1332671/download

[2] https://www.justice.gov/eoir/page/file/1197521/download

[3] https://uscode.house.gov/statviewer.htm?volume=102&page=2617

[4] https://www.ice.gov/sites/default/files/documents/Document/2016/marriageFraudBrochure.pdf


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.