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Fictitious Marriage Certificate and the Marriage Fraud Bar

A “sham marriage” has been described as one entered into for the primary purpose of evading immigration laws where the husband and wife have no intent of establishing a life together. Although they may have had a real marriage ceremony, if they did not intend a real marital relationship and establish a life together as husband and wife, their marriage is a sham.

Entering into a sham marriage only for the purpose of obtaining immigration benefits is a serious matter that could have many consequences. Marriage fraud gives rise to potential criminal violations for both spouses, the penalties for which include imprisonment and fine. It could also lead to the deportation of the alien spouse as well as a bar on the approval of future immigrant visa petitions.

Section 204(c) of the Immigration and Nationality Act (INA) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or LPR and the prior marriage was found to have been entered for the purpose of evading immigration laws. It also bars the approval of visa petitions on behalf of aliens who have attempted or conspired to enter into a sham marriage.

In a recent case, the Administrative Appeals Office (AAO) reinstated the approval of a visa petition revoked on the ground of prior marriage fraud.

In that case, the petitioner is a restaurant which filed an I-140 petition on behalf of the alien beneficiary under the employment-based third preference for skilled workers as a cook. As required by law, the petition was filed with an approved labor certification.

Although the I-140 petition was approved, it was subsequently revoked by the Service Director for the petitioner’s failure to demonstrate that that the alien beneficiary met the minimum experience required by the labor certification.

The Administrative Appeals Office (AAO) affirmed the finding of the Service Director regarding the beneficiary’s qualification and further concluded that the revocation of the I-140 petition was required under Section 204(c).

The record showed that the beneficiary was previously named a beneficiary of a marriage-based petition. During his initial adjustment of status interview, the beneficiary indicated that the marriage certificate was fictitious and he never met or married the petitioner. The AAO considered this substantial and probative evidence which supported a reasonable inference that the beneficiary conspired to enter into a sham marriage.

The AAO, however, reopened the matter and upon review reached a different conclusion. It pointed out that submitting false documents showing nonexistent or fictitious marriage but never actually having entered into or attempted or conspired to enter into a sham marriage does not subject the alien to the marriage fraud bar. The alien, however, may be considered inadmissible due to fraud or misrepresentation but such determination would be made during the I-485 adjudication, not at the visa petition stage.

The AAO concluded that the marriage fraud bar under Section 204(c) was inapplicable in this case. As regards to the beneficiary’s eligibility, it allowed the petitioner to submit additional evidence and found that it had met its burden.

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