02 Jun What USCIS consider as a Marriage Fraud
By Atty. Chris Caday Lozano
If you are applying for green card based on petition by spouse, the number one issue that USCIS consider is whether the marriage is fraudulent. It is important to know how USCIS determines a marriage to be fraudulent and what is the required evidence to reach that determination. If the USCIS determines a marriage to be fraudulent under INA Sec. 204(c) no future petition will be approved for the alien involved. A good point of reference is the case decided by BIA on August 23, 2019.
In the BIA case Matter of P. SINGH, the board issued a ruling about the evidence required to deny a petition for an alien who was previously charged an INA 204 (c) violation for marriage fraud.
The BIA enumerated the following are the legal standards to follow:
(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.”
In this case the beneficiary married the maternal grandmother of the petitioner. After an investigation by the USCIS Fraud unit they determined that the marriage was made to evade the immigration law.
Section 204(c) of the Act states, in pertinent part:
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 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.
The BIA upheld the decision of USCIS determination of marriage fraud.
Note: This is not a legal advice. Our firm has handled many appeals on cases where USCIS has issue of marriage fraud.
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For the month of April 2022, we received approvals from USCIS six naturalization applications, three Fiancée visa petition, five removals of condition on residence and four adjustment of status applications.
Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. He practices immigration law, bankruptcy, personal injury and income tax problems since June 1999. His contact phone is 1-877-456-9266, email: info@CCLlaw.net Website: www.crispinlozanolaw.com/