Fictitious Marriage not a Bar to I-140
Lying about a marriage is not fatal to green card aspirations, as long as there was no marriage to begin with...
The reasons for the revocation included the claim that the beneficiary was the named beneficiary in a Form I-130 (marriage-based petition), but the beneficiary admitted that the marriage certificate filed with the I-130 was fake, that he had never married or even met the I-130 petitioner.
Section 204(c) of the Immigration and Nationality Act states:
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 theUnited States or the spouse of an alien lawfully admitted for permanent residence,
by reason of a marriage determined by 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 a marriage
for the purpose of evading the immigration laws.
As the I-140 would have given the beneficiary a green card through employment, the government viewed the marriage fraud bar as applying to the I-140 as well.
Which it likely would have had the beneficiary actually married or even tried to marry the I-130 petitioner. But in reversing the revocation, the AAO noted that:
By its plain language, section 204(c) applies only to an alien who
“entered into,” or “attempted or conspired” to enter into, a marriage. See
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“It is well established
that, when the statutory language is plain, we must enforce it according to
its terms.”). An alien who submits false documents representing a
nonexistent or fictitious marriage, but who never either entered into or
attempted or conspired to enter into a marriage, may intend to evade the
immigration laws, but is not, by such act alone, considered to have “entered
into” or “attempted or conspired to enter into” a marriage for purposes of
section 204(c) of the Act.
Now the beneficiary may still have problems with willfully misrepresenting a material fact, a violation of INA 212(a)(6)(C)(I), but that was not at issue for the I-140. Rather, that will come up during the adjudication of the I-485 and may require a hardship waiver.
While the case above is an employment-based visa case, it sheds light on the connection to marriage visa cases, and the necessity of being honest, careful, and diligent in the preparation of your case. The marriage visa process is intricate and multifaceted. An immigration attorney can help you decipher the difference between a marriage visa, fiancé(e) visa, and the procedures surrounding each. Making an error in your application or not understanding the eligibility criteria can lead to delays or denials, potentially jeopardizing the union of loved ones.
Marriage-related immigration often requires extensive documentation to prove the legitimacy of the union. This might include evidence of a shared life, like joint bank accounts, property, or even personal correspondence. An experienced immigration attorney knows precisely what documentation will strengthen a case, minimizing the chances of suspicion or rejection due to perceived fraud.
Should complications arise, such as a previous divorce in a foreign country, it becomes crucial to validate that divorce to U.S. standards. An immigration attorney can guide you through this, ensuring that your case is is undisputed.
Marriage interviews are a standard part of the process. These can be nerve-wracking and often entail detailed questions about your relationship’s history. Preparing for this interview is vital. An immigration attorney can provide invaluable advice on what to expect, the kind of questions likely to be asked, and the best way to present your case.
Laws and regulations concerning immigration are constantly evolving. An attorney stays updated with these changes, ensuring that your application aligns with the latest requirements.