When A U.S. citizen or a permanent resident marries a noncitizen, the couple may want to live in the U.S. The initial step in the process begins with the couple filing a marriage-based I-130 case. For divorced persons beginning a second marriage, a previous I-130 denial may impact a new I-130 case. For example, USCIS may deny a second I-130 case after determining that fraud occurred in a prior marriage.
Prohibition on Entering a Marriage to Evade U.S. Immigration Law
U.S. law prohibits USCIS from approving an I-130 Form if a noncitizen entered into a marriage to evade the immigration laws. Similarly, USCIS may deny an I-130 Form if a noncitizen “attempted or conspired to enter into a marriage” to evade immigration laws. 8 U.S.C. § 1154(c) (emphasis added). Importantly, section 1154(c) prohibits USCIS from approving an I-130 petition if a foreign national previously received or applied for status as an immediate relative or a preference category. Id.
Matter of Pak Decision Issued by the Board of Immigration Appeals
On 30 October 2020, the Board of Immigration Appeals (“BIA”) published its ruling in Matter of Pak, 28 I & N Dec. 113 (BIA 2020). The BIA reaffirmed that misrepresentation may lead USCIS to conclude that a couple did not enter into a marriage for legitimate reasons. In Pak, a U.S. citizen filed an I-130 petition on her husband’s behalf in marriage number 2. Her husband had previously been married to a different spouse (“marriage number 1”).
About 6 months after filing the I-130 Form, USCIS interviewed the couple. During the interview, USCIS questioned the husband about marriage number 1. The agency issued a request for evidence regarding marriage number 1’s legitimacy. Ultimately, USCIS agreed that marriage number 2 was a legitimate marriage but denied the petition associated with marriage number 2. USCIS denied marriage number 2’s I-130 Form because evidence showed that marriage number 1 “was fraudulent.” The BIA affirmed that the husband’s “prior marriage was fraudulent” and commenced to evade the immigration laws. Denying the I-130 Form as to marriage number 1 justified denying the petition filed in marriage number 2.
What Does Matter of Pak Mean for a Couple Where One or Both Partners Had a Prior Marriage?
The Pak case suggests that a foreign national should avoid entering into a marriage only for immigration purposes. Pak reveals that USCIS carefully examines evidence submitted for marriage-based I-130 cases. We learn from Pak that USCIS conducts site visits and may consider a record from a previous marriage. Authorizing USCIS to consider evidence from a previous marriage illustrates the risks in entering a marriage for illegitimate purposes. As an I-130 denial may impact a new I-130 case, enter into a marriage with good faith.