A Denied I-130 Petition from an Earlier Marriage May Lead to Problems When Filing Petitions in a Later Marriage

When A U.S. citizen or a U.S. permanent resident marries a foreign national, the couple may want to live together in the United States. The initial step in the immigration process begins with the couple filing petitions for USCIS to determine the marital relationship. This critical step in the process can become complicated if USCIS determines that the couple did not enter into the marriage for good faith reasons.

When couples apply for marriage-based permanent residency, USCIS may not approve a petition if the agency determines that a foreign national entered into a marriage “for the purpose of evading the immigration laws” or “attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c) (emphasis added). Importantly, section 1154(c) prohibits USCIS from approving a petition if a foreign national previously received or applied for status as “an immediate relative” or a “preference” category. Id.    

On 30 October 2020, the Board of Immigration Appeals (“BIA”) published its ruling in Matter of Pak, 28 I & N Dec. 113 (BIA 2020), and reaffirmed that misrepresentation may lead USCIS to conclude that a couple did not enter into a marriage for legitimate reasons. In the Pak case, a U.S. citizen spouse 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 petition, USCIS interviewed the couple. During the interview, USCIS began to question the husband about marriage number 1 and ultimately decided to issue a request for evidence regarding marriage number 1’s legitimacy. The USCIS District Director agreed that marriage number 2 is a legitimate marriage but still denied the petitions associated with marriage number 2. The Director denied marriage number 2’s petitions because the immigration record included “substantial and probative evidence” that marriage number 1 “was fraudulent.” The BIA affirmed the District Director’s conclusion that the husband’s “prior marriage was fraudulent and entered into for the purpose of evading the immigration laws.” The BIA also concluded that USCIS’s decision to deny the petition as to marriage number 1 could serve as a reason for USCIS to deny the petition filed in marriage number 2.

From a general perspective, Matter of Pak suggests that a foreign national should avoid entering into a marriage to obtain an immigration benefit. What does Matter of Pak mean for a couple where one or both partners had a prior marriage? The BIA’s decision in PAK reveals that USCIS carefully examines the evidence submitted for marriage-based petitions (I-130 and I-130A Petitions), conducts site visits, and USCIS also may consider a foreign national’s immigration record from a previous marriage. Authorizing USCIS to consider evidence from a previous marriage when reviewing the petitions filed in a later marriage illustrates the risks associated with entering into a marriage for illegitimate purposes. Although Matter of Pak seems to shine a negative light on marriage-based permanent residency, a couple likely will not encounter these immigration issues as long as they truly build a life together. So . . . get married and enjoy life together!