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The Standard Of Proof Necessary To Bar The Approval Of A Visa Petition Based On Marriage Fraud Under INA §204(c) Is “Substantial And Probative Evidence.” The Degree Of Proof Necessary To Constitute “Substantial And Probative Evidence” Is More Than A Preponderance Of Evidence, But Less Than Clear And Convincing Evidence; The Evidence Must Be More Than Probably True That The Marriage Is Fraudulent. The Nature, Quality, Quantity, And Credibility Of The Evidence Of Marriage Fraud Contained In The Record Should Be Considered In Its Totality In Determining If It Is “Substantial And Probative.” The Application Of This Standard Of Proof Requires The Examination Of All The Relevant Evidence And A Determination As To Whether Such Evidence When Viewed In Its Totality, Establishes With Sufficient Probability That The Marriage Is Fraudulent. Both Direct And Circumstantial Evidence May Be Considered In Determining Whether There Is “Substantial And Probative Evidence” Of Marriage Fraud Under §204(c) And Circumstantial Evidence Alone May Be Sufficient To Constitute “Substantial And Probative Evidence.

October 18, 2019 Philip Levin

On August 23, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by USCIS Field Office Director (FOD) denying a Form I-130 visa petition, which sought to accord status as the immediate relative parent of a U.S. citizen to the beneficiary, after requesting supplemental briefs from the parties.

As set forth in the opinion’s factual and procedural history, the case is fairly complex: the petitioner is the son of the beneficiary, who was married to the petitioner’s maternal grandmother in 2005. The beneficiary’s wife filed an I-103 on his behalf, which the FOD denied in 2009, finding “the marriage was entered into solely to obtain an immigration benefit for the beneficiary.” In 2012, the petitioner filed this visa petition and the FOD issued a Notice of Intent to Deny (NOID), based on the conclusion that the beneficiary married the petitioner’s maternal grandmother for the purpose of evading the immigration laws. After reviewing the petitioner’s response to the NOID, the FOD found the beneficiary’s prior marriage to have been fraudulent, which barred the approval of the current I-130 filed by his son; the petition was thus denied under INA §204(c). In her decision, the FOD specifically noted that “prior to the beneficiary’s marriage, he was involved in a long-term relationship with his spouse’s daughter, with whom he has three children. The petitioner is the oldest of the children, who were born in 1990, 1993, and 1999.”

The FOD also relied on a Fraud Detection/National Security (FD/NS) site visit report of a call paid on the marital residence. FD/NS spoke with the beneficiary’s wife, who provided conflicting statements about who lived in the home. Although she claimed to share the master bedroom with the beneficiary, the FD/NS report stated that an inspection of the room undermined that claim. The beneficiary’s wife also told the officers that her daughter sometimes stays overnight in the master bedroom and that, at those times, she sleeps in the basement. When asked if she sleeps alone on those occasions, she said did but, when asked where the beneficiary sleeps during her daughter’s visits, she said he also sleeps in the basement bedroom.  Additionally, she was unable to explain why she and the beneficiary would leave the master bedroom when her daughter sleeps over.

The report went on to state that, after being advised of the ramifications of committing marriage fraud, the beneficiary’s spouse “admitted that she married the beneficiary as a favor to her daughter to allow him to remain in the United States.” She also admitted that she misrepresented the family’s sleeping arrangements, saying that she lives in the basement while the beneficiary and her daughter share the master bedroom. The Board finally noted that as the officers left the house, they noticed a photo of the beneficiary and his wife’s daughter in an intimate pose.

In response to the NOID, the petitioner submitted an affidavit from the beneficiary’s wife denying that she admitted her marriage was a sham, a statement from the petitioner’s mother claiming she has no ongoing relationship with the beneficiary and that the mother’s marriage to the beneficiary is legitimate, along with utility bills, tax returns, and miscellaneous affidavits contending the marriage is real.

The FOD considered the petitioner’s response but concluded that the evidence was insufficient to overcome the “substantial and probative evidence” of fraud. Petitioner contested this decision on appeal, arguing that the FOD improperly found that the evidence of marriage fraud was “substantial and probative”, which should be a high standard of proof that requires the evidence to be “clear, unequivocal, and convincing”. DHS, in turn, argued that “substantial and probative evidence” is a standard of review and that the standard of proof should be substantial evidence, which requires less than a preponderance of the evidence of fraud to trigger §204(c)’s bar.

In its analysis, the Board first discussed the standard of proof, noting that in deciding if a marriage is a sham, the FOD “must examine the record to determine if there is substantial and probative evidence of fraud to warrant the denial of a visa petition” under §204(c), citing to prior BIA precedents and
8 CFR§204.2(a)(1)(ii). The decision there found held that “substantial and probative evidence” refers to the standard of proof required to prove marriage fraud, not to the standard of review.
 

Further, found the BIA, discoursing on the degree of proof required, this standard of proof refers to the “quality and quantity” of competent, credible and objective evidence. Because §204(c) enacts a permanent bar to the approval of all future visa petitions, the evidence of fraud must be “relatively high”, higher than a preponderance of the evidence, closer to clear and convincing evidence. Thus, held the Board, to qualify as “substantial and probative”, the evidence must establish that it is “more than probably true that the marriage is fraudulent.”

Factors to be considered in determining whether the required standard of proof has been met include significant inconsistencies coupled with minimum documentary evidence of a shared life; however, these factors, concluded the BIA, without more “would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud.” Other evidence of fraud includes proof the parties knowingly attempted to mislead immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage; confirmation that the parties have other romantic partners which whom they may have children; statements indicating that family members, employer or acquaintances do not know about the marriage or were told by the parties that it is not bonafide; or, if one or both parties file taxes as single during the marriage. While §204(c) applies to the beneficiary, found the Board, the acts of the petitioner may also be relevant. In sum, the nature, quality, quantity, and credibility of the evidence should be considered in its totality and this assessment “may be based on either direct or circumstantial evidence.”

In the instant matter, the record supports the FOD’s determination that the approval of the petition is barred by the INA §204(c), as the evidence creates a strong inference that the marriage is a sham. This constitutes “substantial and probative evidence” that the purpose of the marriage was to evade the immigration laws. Matter of Singh, 27 I & N Dec. 598 (BIA 2019).

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

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LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

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Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

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  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

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H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

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Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

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  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
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If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

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Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
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