Anytime an I-130 marriage petition is denied, it is critical to read the decision carefully and understand the basis for denial. It is one thing to be denied for marriage fraud, and another to be denied for failing to provide sufficient evidence of the marital relationship. Unfortunately, these matters are not as black and white as one would normally think. In fact, a recent case out of the Board of Immigration Appeals only underscores how amorphous these categorizations can be. Instead of drawing sharp distinctions between 204c marriage fraud cases and other cases where the grounds for denial are not as explicit, the decision appears to allow DHS to essentially relabel and rebrand “insufficient evidence of bona fides” as fraud cases. The ramifications are very significant given that 204c findings prohibit approval of any subsequent petitions.
Under 204c of the Immigration and Nationality Act, “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 to be the Attorney General to have been entered into for the purpose of evading the immigration laws, or 2) the Attorney General has determined that the alien has attempted or conspired to enter into the marriage for the purpose of evading the immigration laws.
In most cases, an adjudicating officer will include very plain language alleging fraud in the denial. In the case before the Board, however, the marriage petition was denied but not specifically due to marriage fraud, although there were apparently many significant discrepancies that would lead one to question the marriage. When the individual tried to file a new case based on a new marriage, USCIS examined the previous denial and determined that the previous marriage was fraudulent and denied the second petition. The court in Matter of Pak, 28 I & N Dec. 113 (BIA 2020) agreed with the government and upheld the denial, ruling that there was sufficient and probative evidence of fraud in the record warranting a 204c finding even though the case was initially denied for insufficient evidence.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.