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Consequences of a Fraudulent Marriage – Immigration Lawyer New York
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Consequences of a Fraudulent Marriage

By Michael H. Markovitch, Esq. on February, 10, 2015

I have had several clients during my 30 year plus practice ask me what can be done if there has been a decision made by the Department of Homeland Security  that they have entered into a marriage for the sole purpose of getting a green card.   The immigration authorities considers marriage fraud a very serious immigration violation with lasting consequences. An     I-130 marriage petition based on a fraudulent marriage would be denied. Additionally, under INA 204(c), no petition shall be approved if (1) the alien has been accorded, or has sought to be accorded, immediate relative status as the spouse of a U.S. citizen (USC) or preference status as the spouse of a lawful permanent resident (LPR), by reason of a marriage determined to have been entered into for the purpose of evading immigration laws; or (2) the alien has attempted or conspired to enter into a marriage for the purpose of evading immigration laws.


For example, an alien married spouse A, who is an American citizen. In 2011, spouse A filed an I-130 petition for alien. The Department of Homeland Security denied this I-130 because it determined that the marriage was fraudulent. Alien divorced spouse A and married spouse B, who is also an American. In 2014, spouse B filed an I-130 for alien. This second marriage to spouse B is not fraudulent. It is a real marriage. However, the Department of Homeland Security will deny this second I-130 based on INA 204(c) because the finding of marriage fraud in the first I-130 is a bar to the approval of a subsequent I-130. Such is the lasting effect of a finding of marriage fraud. There are very serious consequences indeed.

 

What if the alien did not marry spouse B but instead the alien’s American parent filed an I-130 for him? This I-130 cannot be approved because the prohibition under INA 204(c) covers any type of petition, whether family based or employment based. The alien cannot avoid the effects of INA 204(c) by immigrating through another petitioner under a different preference category. The alien cannot even benefit from an I-140 petition filed an employer because the reach of INA 204(c) extends this far.

 

What actions would trigger the application of INA 204(c)? An application for an immigrant benefit based on a fraudulent marriage would trigger INA 204(c) if the Department of Homeland Security makes a finding of marriage fraud. If an I-130 based on a fraudulent marriage is approved but the Department of Homeland Security later discovers the fraud, this approved I-130 will be revoked and INA 204(c) would bar any subsequent petitions. If an alien never filed an I-130 but the Department of Homeland Security determined that the alien has attempted to enter into a fraudulent marriage, any subsequent petitions for this alien would likewise be barred.

 

INA 204(c) would apply even if the alien has not been convicted of or prosecuted for marriage fraud or any attempt or conspiracy to commit marriage fraud. However, there must be evidence of such fraud or attempt or conspiracy documented in the alien’s file. Such evidence must be substantial.

 

In Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990), the Board of Immigration Appeals (BIA) ruled that in determining whether a prior marriage would bar a subsequent petition under INA 204(c), the adjudicator in the second petition should not give conclusive effect to determinations made in the first petition but should reach an independent conclusion based on any relevant evidence which may include evidence originating in the first petition. In Matter of Tawfik, the evidence in the first petition showed that it could “reasonably be inferred” that the beneficiary entered into a marriage for the primary purpose of obtaining immigration benefits. It was held that such reasonable inference does not rise to the level of substantial evidence. There has to be an affirmative finding that the marriage was entered into for the purpose of evading immigration laws. In this case, there was no evidence either in the first or second petition that the first marriage was fraudulent. Hence, INA 204(c) did not apply.

 

INA 204(c) does not prevent the approval of a second petition filed by the same petitioner for the same beneficiary. In Matter of Isber, 20 I&N Dec. 676 (BIA 1993), the BIA recognized that there might be cases where a petitioner files an I-130 for a spouse but fails for some reason to establish a bona fide marriage and later files a second I-130 with more evidence that convinces USCIS that the marriage is bona fide. This second petition should not be denied based on INA 204(c). However, this exception recognized in Matter of Isber is difficult to establish. If there was evidence of marriage fraud in the first I-130, the petitioner and the beneficiary have a heavy burden in the second I-130 of proving that the marriage is bona fide.

 

A finding of marriage fraud is a permanent obstacle to any future immigrant petition. Under certain circumstances, a waiver might be available but for the most part, there is no relief for an alien who has engaged in marriage fraud. The lesson is obvious. It’s not worth the risk to engage in marriage fraud. However, a finding that a marriage is not bona fide due to lack of sufficient evidence is not the same as a fraudulent marriage, which requires substantial evidence and an affirmative finding. Thus, you should devote sufficient efforts in any marriage based       I-130 to avoid an INA 204(c) bar that could arise due to lack of preparation.

 

For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.

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