Jersey City, New Jersey – Marriage fraud is one of the most serious offenses a person can commit under immigration law. A person found to have committed marriage fraud is forever and irrevocably ineligible for any visa, immigrant or non-immigrant. Marriage fraud is also a criminal offense. This has always meant that a person found to have committed marriage fraud cannot later obtain lawful permanent residence even through a subsequent bona fide marriage to a US citizen.

On October 30, 2020, in Matter of Jongbum Pak, the Board of Immigration Appeals (“BIA”), definitively confirmed that the finding of marriage fraud need not be made during the adjudication of the marriage-based petition based on the fraudulent marriage. The finding may be made during a subsequent petition for marriage-based adjustment of status, even if the subsequent marriage is a legitimate one.

In Matter of Pak, Mr. Pak applied for marriage-based adjustment of status based on his second marriage to a US citizen. Despite concluding the marriage was legitimate, the BIA denied the adjustment of status because, during its review of his first marriage while considering his second petition, USCIS concluded Mr. Pak committed marriage fraud in his first petition. The fact USCIS denied the first petition for lack of evidence rather than due to marriage fraud did not prevent USCIS from reaching this conclusion during the second petition.

While Matter of Pak is a Precedential decision, meaning mandatory policy nationwide, it did not establish any new rule or law. USCIS has always been able to review a petitioner’s prior petitions and complete file when adjudicating subsequent petitions. This has always been a risk. This is the reason why when a client seeking to submit a subsequent petition s/he must complete a full review of the prior petition or risk being found responsible for marriage fraud even when having previously avoided such a finding.

The real question in such a situation, where a first petition was denied for insufficient evidence or failure to appear at the interview, is whether USCIS can meet its burden of proof to make a finding of fraud based on what’s in the file. In Matter of Pak, USCIS based its finding on its previous investigation that revealed the couple was not living together where they said they were living and gave inconsistent answers about residence and employment. Such facts are a common basis for a fraud finding so submitting a second petition was a risky, and perhaps foolish, endeavor.

It is essential that anyone who has  unsuccessfully applied for marriage based status hire a lawyer and review the entire USCIS file before submitting any subsequent petitions. Even if the petitioner is not aware of negative information in the USCIS file, such information may exist. Preparation, due diligence and caution, while time-consuming and burdensome, are mandatory for anyone in such a situation.

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