This practice advisory provides background and analysis on recent decisions issued by the BIA regarding immigrating through a marriage-based petition.

For immigration purposes, the legality of a marriage celebrated in the United States subsequent to a foreign divorce depends on whether the foreign divorce is recognized as valid by the state where the subsequent marriage has taken place. In this context, a federal appellate court interpreting Virginia law held that Virginia would recognize a divorce in Ghana between two Ghanaian citizens even though neither party was domiciled or residing in Ghana at the time of the divorce.

The Board of Immigration Appeals (BIA) held that immigration judges may inquire into the bona fides of a marriage when adjudicating an application for adjustment of status, even though the underlying I-130 petition had been approved by USCIS. The BIA also held that a complete and accurate transcript of proceedings is essential in order to adjudicate an appeal that turns on the credibility of witness testimony.

The Board of Immigration Appeals has issued three decisions in the past year relating to marriage fraud and INA § 204(c). The BIA has affirmed the far-reaching power of the marriage fraud bar, which can impede a client’s ability to ever obtain permanent resident status.

Section 204(c) of the Immigration and Nationality Act bars a petition from being approved where the petition beneficiary previously participated in a fraudulent marriage. This significant penalty applies even if the individual never actually received an immigration benefit through the fraudulent marriage. But what if an I-130 filed by your client’s previous spouse was denied due to insufficient evidence? When your client now seeks to immigrate through an I-130 filed by a new U.S. citizen spouse, can USCIS re-examine the first marriage and now determine it was fraudulent?

U.S. Citizenship and Immigration Services (USCIS) recently amended its Policy Manual to confirm that conditional resident status “terminates” when the agency issues a formal notice to that effect. This resource offers needed clarifications on the change.

The USCIS issued a memo recently that gives nationwide application to a court decision regarding widow(er) benefits.  Under current law, when a U.S. citizen spouse dies, the surviving spouse can self-petition for permanent resident status.  See INA § INA 201(b)(2)(A)(i). The limitations are that the widow(er) must file the Form I-360 petition within two years of the U.S. citizen spouse’s death and the widow(er) must not have re-married.