BONA FIDE MARRIAGE EXCEPTION TO FRAUDULENT MARRIAGE PROHIBITION

 

By:   Roman P. Mosqueda, Esq.

 

 

            A United States citizen or alien admitted for lawful permanent residence (green card holder) may file an immigrant visa petition on behalf of a spouse.

 

            Indeed, a spouse of a U.S. citizen is an immediate relative, not subject to a numerical limit, but deducted from the overall cap of 480,000.  The alien spouse becomes a lawful permanent resident upon first admission to the United States with an immigrant visa or upon adjustment of status in the United States.

 

            The spouse of a lawful permanent resident falls under Family-Sponsored Second Preference, 2A, and is subject to a numerical limit.   The Department of State Visa Bulletin for February 2006 states that 2A numbers are available to applicants chargeable to the Philippines with priority dates earlier than February 8, 2002.

 

            But an immigrant visa petition (Form I-130) filed for an alien spouse by a lawful permanent resident spouse may not be approved, if the marriage occurred within five (5) years of the petitioner being accorded the status of lawful permanent resident, based upon a prior marriage to a United States citizen or alien lawfully admitted for permanent residence, under 8 CFR 204.2(a)(1)(i)(A).

 

Exceptions To Fraudulent

Marriage Prohibition:

 

            Section 204(c) of the Immigration and Nationality Act (INA) prohibits the approval of an immigrant visa petition for an alien spouse, if the petitioner spouse “has previously been accorded … an immediate relative or preference status as 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 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.”

 

            There are two exceptions to the fraudulent marriage prohibition, to wit: “(1) The petitioner establishes by clear and convincing evidence that the marriage through which the petitioner gained permanent residence was not entered into for the purpose of evading the immigration laws” (the bona fide marriage exemption); or (2) The marriage through which the petitioner obtained permanent residence was terminated through death,” under 8 CFR 204.2(a)(1)(i)(A)(1) and (2).

 

 

 

 

Required Documents To

Show Bona Fide Marriage:

 

            “The petitioner (spouse) should submit documents which cover the period of the prior marriage.  The types of documents which may establish that the prior marriage was not entered into for the purpose of evading the immigration laws include, but are not limited to:

 

 (1)   Documentation showing joint ownership of property;

             (2)   A lease showing joint tenancy of a common residence;

             (3)   Documentation showing commingling of financial resources;

             (4)   Birth certificate(s) of child(ren) born to the petitioner and prior spouse;

             (5)   Affidavits sworn to or affirmed by third parties having personal knowledge of the bona fides of the prior marital relationship.  (Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit; his or her relationship, if any, to the petitioner, beneficiary or prior spouse; and complete information and details explaining how the person acquired his or her knowledge of the prior marriage. The affiant may be required to testify before an immigration officer about the information contained in the affidavit.    Affidavit  should be supported, if possible, by one or more types of documentary evidence listed in this paragraph.); or

 

(6)   Any other documentation which is relevant to establish that the prior marriage was not entered into in order to evade the immigration laws of the United States,” pursuant to 8 CFR 204.2(a)(1)(i)(B).

 

Effect of Failure To Prove

Bona Fide Marriage:

 

            “The petitioner (spouse) must establish by clear and convincing evidence that the prior marriage was not entered into for the purpose of evading the immigration laws.  Failure to meet the ‘clear and convincing evidence’ standard will result in the denial of the petition” (Form I-130), pursuant to 8 CFR 204.2(a)(1)(i)(C).

 

            But “(s)uch a denial shall be without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence.  The director (of the Citizenship and Immigration Services) may choose to initiate deportation (removal) proceedings based upon information gained through the adjudication of the petition . . .,” pursuant to 8 CFR 204.2(a)(1)(i)(C).

 

            Moreover, “(a) visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto,” per 8 CFR 204.2(a)(1)(iii). 

 

 

Request For Bona Fide

Marriage Exemption:

 

            Under 8 CFR 204.2(a)(1)(iii)(A), no application or fee is required to request for a bona fide marriage exemption, but it must be made in writing and submitted with the Form I-130 (Petition For Alien Relative, $190 filing fee).  And “the request must state the reason for seeking the exemption and must be supported by documentary evidence establishing eligibility for the exemption.”

 

            The same documents required to establish that the prior marriage was not entered into for the purpose of evading the immigration laws, listed above, can be used to establish that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien’s entry as an immigrant, per 8 CFR 204.2(a)(1)(iii)(B).

 

            This Author has a client who is in the process of adjusting to lawful permanent residence with the Los Angeles CIS, but the Immigration Officer is requiring bona fide marriage exemption documentation.

 

            This is so, because her lawful permanent resident (LPR) husband petitioned her (Form I-130) on December 23, 1996, based upon their marriage on July 27, 1996, which marriage was within five years of the petitioner husband  being accorded LPR status in 1993, based upon a prior marriage to a United States citizen  in 1991, which was dissolved only in 1995.

 

            This is a classic case requiring a bona fide marriage exemption.

  

            (The Author, Roman P. Mosqueda, has handled adjustment of status petitions with request for bona fide marriage exemption).