Getting I 130 Approval After Previous Unsuccessful Marriage Green Card Application
Author: New York Immigration Lawyer Alena Shautsova
You filed a marriage based green card some time ago… but it was never approved. The relationship fell apart prior to approval. Maybe you guys even appeared for the first interview, and then were called for the second interview and you never showed up. Maybe, your ex partner withdrew the I 130 petition they filed for you… or maybe they appeared for the interview and after USCIS officer pressured them, they stopped talking to you and disappeared…
Now, years later you met the love of your life and are trying to get that green card again. You already know that you have to prepare very well, because that old relationship and previous filing may hurt you. In fact, it may hurt you now, even if now it is your child who is petitioning for you and not your new spouse, or even if you are being petitioned by your employer. It is all because the BIA in various cases held that previous unsuccessful filings of I 130 spousal petitions, and I 129F fiancé petitions may be used against an immigrant in the new proceedings even if previously the USCIS did not accuse the non-citizen of immigration fraud. See Matter of R.I. Ortega, 28 I&N Dec. 9 (BIA 2020), Matter of Pak, 28 I&N Dec. 113 (BIA 2020), Matter of Mensah, 28 I&N Dec. 288 (BIA 2021).
Marriage fraud occurs when an individual enters into a marriage solely to evade U.S. immigration laws and obtain immigration benefits. According to the U.S. Citizenship and Immigration Services (USCIS), this includes:
- False Representation: Providing incorrect information or documents.
- Knowledge of Falsity: Being aware that the information is false.
- Intent to Deceive: Aiming to mislead immigration officials.
- Materiality: The false information must be significant enough to influence the immigration decision.
- Obtaining a Benefit: Successfully acquiring an immigration benefit due to the deception.
Engaging in marriage fraud can lead to severe consequences, including inadmissibility to the U.S., deportation, and potential criminal charges. It's crucial to understand that even without intent to deceive, knowingly providing false information can result in willful misrepresentation, which carries similar penalties.
Implications of a Marriage Fraud Accusation
Under Section 204(c) of the Immigration and Nationality Act (INA), if USCIS determines that an individual has attempted or conspired to enter into a marriage to evade immigration laws, any subsequent visa petitions filed on their behalf will be denied. This bar applies regardless of the legitimacy of any future marriages. Therefore, a prior accusation of marriage fraud can severely hinder one's ability to obtain a green card through marriage.
Steps to Overcome a Marriage Fraud Accusation and Obtain a Green Card
1. Consult an Experienced Immigration Lawyer
Engaging with a knowledgeable immigration lawyer is essential. They can assess your case, help gather necessary evidence, and guide you through the legal complexities. An attorney experienced in handling marriage fraud allegations can develop a strategy to challenge the accusation and present a compelling case for your bona fide marriage.
2. Gather Substantial Evidence of a Bona Fide Marriage
To counter a marriage fraud allegation, it's imperative to provide comprehensive evidence demonstrating the authenticity of your marriage. This includes:
- Joint Financial Documents: Bank account statements, tax returns, insurance policies, and property deeds showing shared ownership or responsibility.
- Personal Correspondence: Emails, text messages, and letters that reflect regular communication.
- Affidavits from Friends and Family: Statements from individuals who can attest to the genuineness of your relationship.
- Photographs Together: Images from various occasions, locations, and with different groups of people to showcase the depth and duration of your relationship.
- Evidence of Cohabitation: Lease agreements, utility bills, and other documents indicating that you live together.
3. Respond Promptly to USCIS Notices
If USCIS issues a Notice of Intent to Deny (NOID) or a Request for Evidence (RFE) based on suspected marriage fraud, it's crucial to respond thoroughly and promptly. Provide all requested information and additional evidence to support the legitimacy of your marriage. Failure to adequately address these notices can result in denial of your petition.
4. Prepare for the Stokes Interview
In cases where marriage fraud is suspected, USCIS may conduct a Stokes interview, also known as a marriage fraud interview. During this process, both spouses are interviewed separately, and their answers are compared for consistency. It's essential to prepare for this interview by reviewing personal details, daily routines, and significant events in your relationship. Honesty and consistency are key, as discrepancies can raise red flags. The usual issues arise from inconsistent address and work history, applying for Federal and state benefits and misrepresenting address, family and income situations, filing separate tax returns, having children with someone other than your spouse, not being able to provide the names of immediate family members of each other, etc. you can learn more about how to prepare for the marriage based interview here: https://www.shautsova.com/law-publications/how-pass-stokes-interview.html and here: https://www.shautsova.com/law-publications/obtaining-marriage-based-green-card-comprehensive-guide.html.
5. Appeal or File a Motion to Reopen if Necessary
If your I-130 petition is denied due to a marriage fraud finding, you have the option to appeal the decision or file a motion to reopen or reconsider. An appeal involves requesting a higher authority to review the decision, while a motion to reopen presents new evidence or arguments. Your immigration lawyer can advise on the best course of action based on the specifics of your case.
Preventing Future Allegations
- Maintain Comprehensive Records: Keep detailed records of joint financial accounts, property ownership, and other shared responsibilities.
- Be Transparent and Honest: Always provide truthful information in all immigration forms and interviews.
- Seek Legal Counsel Early: Engage with an immigration lawyer at the onset of the process to ensure all requirements are met and to address potential issues proactively.
Overcoming a prior accusation of marriage fraud to obtain a green card through marriage is challenging but achievable with meticulous preparation and legal guidance. Demonstrating the authenticity of your current marriage through substantial evidence and adhering to legal protocols is paramount. Engaging with an experienced immigration lawyer can significantly enhance your chances of success, ensuring that your rights are protected throughout the process.
For personalized assistance, consider consulting with a reputable immigration lawyer who can provide tailored guidance based on your unique circumstances. Call us 917 885 2261.