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No Marriage Fraud Without a Marriage

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By Susan Schreiber

When you read the words "marriage fraud,” you probably think of a marriage entered into for purposes of obtaining an immigration benefit.  Such marriages, among other things, trigger  INA § 204(c) consequences,  i.e. a bar against petition approval where the  beneficiary has previously sought status  based on a fraudulent marriage or "has attempted  or conspired to enter into a marriage for the purpose of evading immigration laws."

What is the reach of this second clause of 204(c), which covers attempts or conspiracy to engage in marriage fraud?   That was the question at issue before the Administrative Appeals Office in a case involving an I-140 petition denied, in part, because of 204(c).  Matter of Christos, 26 I&N Dec.  537 (AAO 2015).  In Christos, the beneficiary of an I-140 petition had also filed for adjustment of status based on a completely fictitious marriage.  Although the I-130  was supported by a marriage certificate, the beneficiary later acknowledged that he had never met or married the petitioner.  When the petitioner's I-140 approval was revoked due to failure to demonstrate the requisite experience required for his labor certification, he appealed to the AAO.   In dismissing his appeal, the AAO affirmed the finding of insufficient evidence of experience.  But it also determined that the revocation was required because the beneficiary was subject to the 204(c) penalty.

In reopened proceedings, the beneficiary cured the evidentiary problems related to his I-140 petition and the AAO revisited its analysis of 204(c) as it applied to the facts of his case.  Taking a second look at the "attempt or conspiracy" language of the statute, the AAO concluded that, while an actual marriage is not required, there must be an attempt or conspiracy to enter into a marriage.  "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 law, but is not, by such act alone, considered to have "entered into" or "attempted or conspired to enter into" a marriage for purposes of 204(c) of the Act"  Christo at 540.

As the AAO noted, the beneficiary still has to contend with immigration consequences flowing from his actions, which here indicate inadmissibility under INA § 212(a)(6)(C)(i) for a willful material misrepresentation in connection with seeking an immigration benefit.  This issue, however, will impact on the beneficiary when he seeks to apply for an immigrant visa or adjustment of status; it does not bar the approval of the I-140 petition.