Introduction: Second-Preference Spousal Petitions by LPR Who Obtained LPR Status Through Marriage

Under statute, an alien who obtained lawful permanent residence through marriage may not have approved a second-preference petition for a spouse within 5 years of obtaining permanent residency. However, a separate provision in the statute allows such a petition to be approved if the alien demonstrates by “clear and convincing evidence” that the previous marriage was bona fide, that is that it was not entered into for the purpose of circumventing the immigration laws. In the precedent decision in the Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989) [PDF version], the Board of Immigration Appeals (BIA) held by a 2-1 majority that where more than 5 years have elapsed, the petitioning LPR need not show that his or her previous marriage was bona fide by clear and convincing evidence in order for the petition to be approvable.

However, regulations promulgated subsequent to the Matter of Pazandeh suggest that the “clear and convincing evidence” standard will be applied so long as the original marriage ended within 5 years, notwithstanding whether the petitioner has him or herself been a permanent resident for 5 years. In this article, we will look at the statutes, the Matter of Pazandeh decision, and the regulations and their effect on both the statute and the BIA precedent.

Applicable Statue

Section 204(a)(2)(A) of the Immigration and Nationality Act INA states as follows:

  • A. The Attorney General may not approve a spousal second preference petition for the classification of the spouse of an alien if the alien, by virtue of a prior marriage, has been accorded the status of an alien lawfully admitted for permanent residence as the spouse of a citizen of the United States or as the spouse of an alien lawfully admitted for permanent residence, unless-
    • i. a period of 5 years has elapsed after the date the alien acquired the status of an alien lawfully admitted for permanent residence, or
    • ii. the alien establishes to the satisfaction of the Attorney General by clear and convincing evidence that the prior marriage (on the basis of which the alien obtained the status of an alien lawfully admitted for permanent residence) was not entered into for the purpose of evading any provision of the immigration laws.
  • B. Subparagraph (A) shall not apply to a petition filed for the classification of the spouse of an alien if the prior marriage of the alien was terminated by the death of his or her spouse.

This provision concerns a situation where a person who obtains LPR status through marriage subsequently files a second-preference immigrant visa petition (under section 203(a)(2) of the INA) for an alien spouse. If the original marriage was terminated because of the death of the petitioner’s spouse, then section 204(a)(2)(B) states that the restrictions in section 204(a)(2)(A) do not apply to a subsequent second-preference petition. However, under section 204(a)(2)(A), the subsequent second-preference petition will be denied unless five years elapsed since the petitioner became an LPR or unless the alien demonstrates with clear and convincing evidence that his or her previous marriage was bona fide.

In the next section, we will look at the major administrative precedent regarding section 204(a)(2)(A).

Precedent Decision: Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989)

The following are the facts of the case in the Matter of Pazandeh:

The petitioner, then an alien, married a U.S. citizen on June 24, 1982;
The petitioner obtained her LPR status based upon a petition filed on her behalf by her U.S. citizen spouse on February 4, 1983;
She obtained a divorce from her U.S. citizen spouse on June 17, 1985;
The petitioner married the beneficiary on April 25, 1986, within five years of her obtaining LPR status;
The petitioner filed a second-preference immigrant visa petition on behalf of the beneficiary on January 15, 1987;
On May 12, 1987, the Immigration and Nationality Service (INS) sent the petitioner a notice requesting evidence that her previous marriage “was not entered into for the purpose of evading the immigration laws”;
The evidence was reviewed under section 204(a)(2)(A)(ii) of the INA, and it was held that the petitioner failed to establish by “clear and convincing evidence” that she had entered into her previous marriage in good faith;
Accordingly, the petition was denied.

The Board was faced with an interesting question regarding the proper interpretation of section 204(a)(2)(A)(i). First, let us recall that if “a period of five years [] elapsed after the date” the petitioner became an LPR, the petitioner should not have been required to demonstrate that her previous marriage was bona fide by “clear and convincing evidence.” This is because the five-year requirement in 204(a)(2)(A)(i) and the “clear and convincing evidence” requirement in 204(a)(2)(A)(ii) are presented in the alternative.

In the instant case, the petitioner filed the second-preference petition just within five years of having become an LPR based upon an immigrant visa petition filed on her behalf by her previous spouse. INS requested evidence regarding the bona fides of her previous marriage within five years of the petitioner’s becoming an LPR as well. However, five years elapsed from the date the petitioner became an LPR during the pendency of her appeals from the denial of the petition.

Accordingly, the question is whether a petition that is filed within five years of the petitioner obtaining LPR status based upon a previous marriage is subject to 204(a)(2)(A)(ii) for the entirety of the adjudication, or whether 204(a)(2)(A)(i) is satisfied if five years elapses during the adjudication of the petition.

The majority decision of the Board held that “[b]ecause 5 years have elapsed since the petitioner became a lawful permanent resident, the visa petition which she filed on behalf of the beneficiary may now be approved irrespective of the issue of whether the petitioner has established by “clear and convincing evidence” that her previous marriage was not fraudulent.” Thus, the effect of this BIA precedent is that even if the petition is filed within five years of the petitioner having become an LPR on the basis of a spousal petition, the petition becomes approvable at the moment five years from the date that petitioner became an LPR elapses. Accordingly, the majority held that the INS was incorrect in its application of 204(a)(2)(A)(ii) to this case.

The majority distinguished the situation in the Matter of Pazandeh from a serious of precedent decisions regarding second-preference petitions that stemmed from the Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) [PDF version]. The Matter of Bardouille line of cases held, as described by the Board, that “a petition would not be approved unless the beneficiary was qualified for preference status at the time the petition was filed…” However, the majority noted that the line of cases stemming from the Matter of Bardouille concerned situations where the beneficiaries were “indisputably ineligible for preference status when the petitions were filed on their behalf.” In contrast, the Board stated with regard to the situation in the Matter of Pazandeh, that “where the petition was initially approvable subject to the petitioner’s meeting a burden which had lapsed with the passage of time, we do not find the rational expressed in the Bardouille line of cases to be applicable.”

However, the majority was careful to note that this decision does not mean that such a petition could not be denied on account of the petitioner’s previous marriage having been being fraudulent. The Board noted that, if immigration authorities have reason to believe that a petitioner’s previous marriage was a sham after five years have elapsed, it may initiate the “appropriate proceedings against the alien” (citing legacy INS regulations). Indeed, in the instant case, the Board remanded the record for further proceedings to give the INS the opportunity to “inquire as to the good faith of the petitioner’s existing marriage.”

Implementing Regulations and Effect of the Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989)

The regulations implementing 204(a)(2)(A) are found in 8 C.F.R. 204.2(a).

First, 8 C.F.R. 204.2(a)(1)(i) states that a second-preference spousal petition filed by an LPR who obtained his or her status through marriage to a U.S. citizen or LPR may not be approved if the subsequent marriage occurred within five years of the petitioner being accorded LPR status unless, as explained in 8 C.F.R. 204.2(a)(1)(i)(1), the petitioner establishes by clear and convincing evidence that the previous marriage through which he or she obtained LPR status was not entered into for purposes of circumventing the immigration laws. Under 8 C.F.R. 204.2(a)(1)(i)(2), this prohibition is waived if the petitioner’s previous marriage ended due to the death of his or her spouse.

Differences Between Statute and Regulations: Effect on the Matter of Pazandeh

8 C.F.R. 204.2(a)(1) specifically references the marriage occurring within five years of the petitioner becoming an LPR. On one hand, this seems aligned with section 204(a)(2)(A) of the INA, for in order for section 204(a)(2)(A)(ii) (clear and convincing evidence]) to apply, the marriage in question would have had to occur within five years of the petitioner becoming an LPR. However, the wording of the regulations suggests that, regardless of when the petition is filed, so long as the marriage itself occurred within five years of the petitioner becoming an LPR, the petitioner must establish by clear and convincing evidence that his or her previous marriage was bona fide. In this sense, the regulations go further than section 204(a)(2)(A)(i) of the INA, which allows for the petitioner to not have to meet the “clear and convincing evidence” requirement if more than five years have elapsed since he or she obtained LPR status.

These regulations were promulgated subsequent to the issuance of the Matter of Pazandeh. USCIS has read the regulations to require “clear and convincing evidence” so long as the original marriage was terminated for reason other than death within five years. For example, in multiple non-precedent decisions, the BIA has ruled that the regulations have the force of law so long as they are in effect, and that the submission of “clear and convincing” evidence is required where the subsequent marriage occurred within five years of the petitioner obtaining LPR status from his or her previous marriage.1 The rationale behind the BIA’s position in these non-precedent decisions was that the language of the regulation superseded the BIA’s precedent in the Matter of Pazandeh. However, on February 29, 2016, the U.S. District Court for the Southern District of New York held in Chen v. Board of Immigration Appeals, 15-cv-01269 [PDF version], that 8 C.F.R. 204.2(a)(1)(i)(A) is unlawful because it impermissibly conflicts with the explicit language of section 204(a)(2)(A) of the INA.2 Accordingly, the District Court set aside a decision by the BIA which upheld the denial of a subsequent second-preference petition filed beyond five years on the basis that the petitioner did not establish by clear and convincing evidence the bona fides of his original marriage.

Unfortunately, the correct interpretation of the conflict between the language of the statue and the regulation has yet to be resolved. As we noted, the BIA has not issued a precedent decision regarding the continuing applicability of the Matter of Pazandeh in light of 8 C.F.R. 204.2(a)(1)(i)(A)(1). However, the decision in Chen v. Board of Immigration Appeals is one of the first federal court decisions to address the conflict. The issue bears watching in subsequent litigation to see if the holding in Chen — that the regulations are invalid in light of the explicit language of the statute — gains acceptance.

Clear and Convincing Evidence

Clear and convincing evidence of the bona fides of the previous marriage may include (but is not limited to), as listed in 8 C.F.R. 204.2(a)(1)(i)(B):

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 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. Affidavits 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.

Under 8 C.F.R. 204.2(a)(1)(i)(C), the petitioner is required to demonstrate that the previous marriage was not entered into in order to circumvent the immigration laws by “clear and convincing evidence.” If the petitioner fails to meet the “clear and convincing evidence” standard, the petition will be denied “without prejudice to the filing of a new petition once the petitioner has acquired five years of lawful permanent residence.” Accordingly, if a petition is denied within 5 years of the petitioner becoming an LPR, the petitioner may file a new petition after he or she has acquired 5 years of LPR status. The regulations suggest that the “clear and convincing evidence” standard applies to a subsequent petition, whereas the statute and the Matter of Pazandeh suggest that it should not. Notwithstanding denial “without prejudice,” USCIS may initiate deportation proceedings if information it gains through the adjudication of the petition suggests that the petitioner’s previous marriage was a sham. If the petition is denied but USCIS does not bring proceedings against the petitioner, it shall not be established that the petitioner’s previous marriage was a sham.

Relationship to the Subsequent Marriage Provision in Section 204(c)

Section 204(c)(1) of the INA requires the USCIS to deny a spousal petition filed on behalf of an alien who “has previously been accorded, or has sought to be accorded, an [immigrant visa] as the spouse of [a U.S. citizen or LPR] by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws. Section 204(c)(2) requires that such petition be denied if the beneficiary had previously conspired to obtain immigration benefits by virtue of entering into a sham marriage with a U.S. citizen or LPR. This is distinguished from section 204(a)(2)(A) in that it concerns the beneficiary of an immigrant visa petition for an alien spouse rather than a petitioner who previously gained permanent resident status as the beneficiary of such a petition.

To learn more about section 204(c), please read our full article [see article].

Conclusion: Second-Preference Spousal Petitions by LPR Who Obtained LPR Status Through Marriage

The apparent conflict between the statute and the Board’s precedent in the Matter of Pazandeh and the regulations creates an uncertain situation for a petitioner filing a second-preference spousal petition more than 5 years after obtaining LPR status as the beneficiary of a spousal petition. It is certainly possible that the decision in Chen v. United States — that 8 C.F.R. 204.2(a)(1)(i)(A)(1) impermissibly conflicts with the statute it implements — will gain broad acceptance. For the time being, given the limited scope of Chen and current USCIS practices, petitioners should be prepared to meet the “clear and convincing” evidence standard outside of the 5-year window. If such a petition is denied, an experienced immigration attorney will be able to determine if a path exists for appeal. It is important to remember that even the Matter of Pazandeh made clear that there is no bar on considering evidence that a previous marriage was fraudulent.

A petitioner filing a petition for an alien spouse should always consult with an experienced immigration attorney. This is especially important where the petitioner is an LPR who obtained his or her status through a previous marriage because, as we discuss in the article, numerous complications may arise from the specific facts of the given case.

  1. See: 2006 WL 2183582 (BIA); 2007 WL 2299604 (BIA); 2015 WL 4503966 (BIA)
  2. Case PDF from: Hamblett, Mark, “Immigration Residency Rule Found Unfair in Remarriages, New York Law Journal, (Mar. 3, 2016), available at http://www.newyorklawjournal.com/id=1202751205524/Immigration-Residency-Rule-Found-Unfair-in-Remarriages?mcode=0&curindex=0&curpage­ALL