Can I get a green card if I have a previous marriage petition denied based on fraud?

DEAR Attorney Tan,

I recently married a US Citizen, who is my second husband.  He has filed an immigrant visa petition and green card application for me.  My husband recently received from USCIS a Notice of Intent to Deny the petition that he filed on my behalf.  The Notice indicated that the immigrant visa petition could not be approved since the USCIS had determined that I previously entered into a fraudulent marriage to get a green card several years ago.  My ex-husband previously filed an immigrant petition on my behalf several years ago, which was denied since USCIS determined that I only married him to get a green card.  My second husband and I truly love each other.  What are my options?  — In Love but Out of Status

Dear In Love but Out of Status,

Under INA Section 204(c), a person who “attempted or conspired to enter into a marriage” in order to receive permanent resident status in the US is prohibited from obtaining USCIS approval of an immigrant visa petition.  Simply stated, Section 204(c) prohibits approval of any immigrant visa petition if there has been a finding of “marriage fraud” in a prior marriage-based petition.

Based on the above law, your case seems at first glance like an “open-and-shut” case in favor of denial.  However, you still have hope of getting a green card—a person can apply for and get his immigrant petition approved despite the prior finding of “marriage fraud” under certain circumstances.

You may ask, how is this possible?  Isn’t Section 204(c) straightforward?  Not quite.  The answer lies in the fact that USCIS must independently examine the prior finding of “marriage fraud” in considering the subsequently filed immigrant visa petition.  Before invoking the Sec. 204(c) bar to approval of a subsequent visa petition, USCIS must make an independent determination of fraud based upon the record, including but not limited to any evidence gathered during adjudication of the prior visa petition, but may not parrot or rely on the conclusions made by other adjudicators.  USCIS must have “substantial and probative” evidence of “marriage fraud.”  Matter of Tawfik, 20 I. & N. Dec. 166, 168. 

The determination is to be made by the USCIS district director while adjudicating the subsequent visa petition. Matter of Samsen, 15 I. & N. Dec. 28, 1974 WL 29995 (B.I.A. 1974).  The district director should not give conclusive effect to the determinations made in the prior proceedings, but should reach his own independent conclusion based on the evidence actually before him. Matter of F-, 9 I. & N. Dec. 684 (BIA 1962).

Therefore, in cases such as yours in which the USCIS has indicated it intends to deny the subsequent immigrant visa petition due to the prior finding of “marriage fraud,” new evidence can be submitted that demonstrates that the prior finding of “marriage fraud” was incorrect—i.e., evidence that shows that the prior marriage petition was based on a bona fide marriage, or that explains that the prior denial was based on an incomplete or inaccurate assessment of the facts.  In cases in which the subsequent immigrant visa petition has already been denied, this new evidence should be submitted as part of a motion to reconsider.  I recommend that you seek an experienced attorney to assist you in properly presenting the law and facts to the USCIS adjudicator to address the Section 204(c) bar.

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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada.  Mr. Tan is a graduate of UCLA and Southwestern University School of Law.  He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.

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