Introduction

On June 19, 2020, the Board of Immigration Appeals (BIA) tackled an interesting question in the Matter of R.I. Ortega, 28 I&N Dec. 9 (BIA 2020) [PDF version]. Is an individual who entered into a sham engagement to procure a K1 visa [see article] subsequently subject to the fraudulent marriage bar in section 204(c) [see section] of the Immigration and Nationality Act (INA)? Section 204(c) bars aliens who are determined to have “attempted or conspired to enter into a marriage for the purpose of evading the marriage laws” from subsequently having a petition under INA 204 approved on their behalf. The Board concluded in Matter of R.I. Ortega that conspiring to enter into a sham engagement for a K1 visa does trigger INA 204(c). We will examine the Board’s reasoning and what its decision means going forward.

Factual and Procedural History

The petitioner was a U.S. citizen. The beneficiary, her son, was a native and citizen of the Dominican Republic.

Prior Beneficiary of Not Bona Fide K1 Petition

On November 17, 2004, the beneficiary’s then-fiancée filed a Form I-129F, Petition for Alien Fiancé(e) on his behalf, seeking to accord him K1 status. The USCIS initially approved the Form I-129F. The beneficiary appeared for his K1 interview at the U.S. Consulate in Santo Domingo, Dominican Republic, on July 7, 2005. The Consulate referred the case for a dual interview with the beneficiary and his then-fiancée.

The beneficiary and his then-fiancée offered inconsistent answers at the joint-interview, leading to fraud concerns. The United States Citizenship and Immigration Services (USCIS) notified the beneficiary’s fiancée of its intent to revoke the approved Form I-129F because it determined that the beneficiary had attempted or conspired to enter into a marriage for the purpose of evading U.S. immigration laws. The beneficiary’s fiancée did not respond to the notice. The Form I-129F was revoked on February 13, 2007. In the instant matter, the beneficiary does not dispute that his engagement to his former fiancée was not bona fide.

Current Petition

On June 12, 2018, the petitioner (the beneficiary’s mother) filed a Form I-130, Petition for Alien Relative, on the beneficiary’s behalf. The Form I-130 sought to accord status to the beneficiary as the unmarried son of a U.S. citizen under INA 203(a)(1). The USCIS approved the petition on August 11, 2008.

The USCIS notified the petitioner on September 12, 2017, of its intent to revoke the approval of the Form I-130 on the grounds that the approval of the Form I-130 was barred by INA 204(c), triggered by the beneficiary’s prior attempt to enter into a sham marriage for purpose of evading the immigration laws. In this case, the petitioner filed a timely response to the notice of intent to revoke.

After considering the response to the notice of intent to revoke, the USCIS revoked the approval of the Form I-130, finding that the beneficiary was subject to INA 204(c). The petitioner appealed to the BIA.

Issues Presented

The Board summarized the main issue presented as follows: “[W]hether an alien who has entered into a fictitious or ‘sham’ engagement that served as the basis for a K-1 nonimmigrant fiancé(e) visa petition has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws and is therefore subject to the bar at section 204(c) of the Act.”

Board Concludes that Sham Engagement Underlying K1 Petition Triggered 204(c)

The Board held that the beneficiary’s conduct with respect to his previously having been the beneficiary of a K1 petition “supports the Director’s determination that he conspired to enter into a marriage for the purpose of evading the immigration laws.” Below, we will examine the Board’s decision and why it concluded that the beneficiary’s sham engagement triggered the 204(c) marriage fraud bar.

Standard for Revoking an Approved Visa Petition

Section 205 of the INA permits the USCIS to revoke the approval of an immigrant visa petition for “good and sufficient cause.” “Good and sufficient cause” exists if the record at the time of the decision to revoke, including the petitioner’s explanation in response to the proposed revocation grounds, warrants denial of the petition for failure of the petitioner to sustain his or her burden of proof. Matter of Estime, 19 I&N Dec. 450, 451-52 (BIA 1987) [PDF version].

Under current rules and procedures, the USCIS Director must send a notice of intent to revoke a petition and offer the petitioner an opportunity to rebut the derogatory evidence presented in the notice before revoking an approved petition. 8 CFR 103.2(b)(16)(i)-(ii); Matter of Obaigbena, 18 I&N Dec. 533, 536 (BIA 1988) [see article]. The petitioner bears the burden of proof to overcome the derogatory evidence in the notice of intent to revoke. Matter of Ho, 19 I&N Dec. at 589.

Section 204(c), Generally

The Board excerpted the pertinent portion of INA 204(c):

[N]o petition shall be approved if the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws…

Visa petitions filed under INA 204 will be denied, or revoked if they were previously approved, where there is substantial and probative evidence that the beneficiary either entered into or attempted or conspired to enter into a fraudulent marriage.

The Board noted that the INA does not expressly define the terms “attempted” or “conspired.” The Board has held that an alien need not have actually received benefits from an attempt or conspiracy in order to be subject to INA 204(c). Matter of P. Singh, 27 I&N Dec. 598, 602 (BIA 2019) [PDF version]. The Board has also held that where an alien agreed to pay a U.S. citizen to enter into a sham marriage, the alien had attempted or conspired to enter into a marriage for the purpose of evading immigration laws at the moment they reached an agreement. Matter of Kahy, 19 I&N Dec. 803, 807 n.3 (BIA 1988) [PDF version].

K1 Petitions, Generally

The K1 visa category is established by INA 101(a)(15)(K)(i). It is available to aliens who seek the United States to conclude a valid marriage with the U.S. citizen petitioner within 90 days of admission. Under INA 214(d)(1), the petition must be supported by evidence that the parties met in person within two years prior to the date the petition was filed, that they have a bona fide intention marry, and that they are legally able and willing to conclude a valid marriage in the United States within 90 days of the alien’s arrival.

The Board explained that the “bona fide intention to marry” is central to establishing K1 visa eligibility. This is because the sole purpose of the K1 category is to allow an alien fiancé(e) to enter the United States to marry.

The Board added that because the K1 visa offers beneficiaries a direct path to permanent resident status in the United States, “K-1 visa holders have always been treated as the functional equivalents of immediate relatives for purpose of immigrant visa eligibility and availability. “There is no requirement for a Form I-130 immigrant visa petition to be filed for a K-1 visa holder because the adjustment of status application is predicated on the nonimmigrant Form I-129F visa petition itself.” See also Matter of Sesay, 25 I&N Dec. 431, 439 (BIA 2011) [PDF version].

Board’s Analysis and Conclusions

Following principles of statutory construction, the Board explained that “[f]or purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.” Section 204(c) is triggered when the Attorney General makes the “determination” that the alien undertook an overt act in furtherance of entering into a sham marriage to evade the immigration laws. The Board has held that the filing of a visa petition based on the sham marriage does constitute an “overt act,” but a mere agreement without any further action does not.

Beneficiary Entered Into Sham Marriage Agreement for K1 Petition

In the instant matter, the petitioner (the beneficiary’s mother) did not meaningfully dispute that the beneficiary had entered into a sham agreement with his former fiancée for the purpose of evading U.S. immigration laws. Instead of disputing that point, the petitioner asserted that there was no evidence that the beneficiary had intended to enter into a fraudulent marriage while he was in the Dominican Republic. The Board found this argument unpersuasive, concluding that the pertinent issue was that the beneficiary had intended to enter into a fraudulent marriage after being admitted to the United States with a K1 visa.

When the USCIS initially approved the Form I-129F, it determined, based on the representations made by the beneficiary and his former fiancée, that he intended to marry his former fiancée within 90 days of being admitted into the United States. The Board added that by the former fiancée’s filing the Form I-129F and by the beneficiary and former fiancée appearing for their interviews in support of the Form I-129F, they had represented to the USCIS that they had a bona fide intention to marry within 90 days of the beneficiary’s arrival in the United States. “Both the filing of the visa petition and their conduct during the interviews constitute overt acts in furtherance of this agreement.”

Regarding the current petitioner’s brief, the Board observed that she had not identified what the beneficiary had intended to do in the United States if he had been granted a K1 visa, other than to marry the petitioner. The Board noted that K1 visa holders cannot adjust status on a basis other than marriage to the K1 petitioner. In light of the evidence, the Board “agree[d] [with the Director] that the beneficiary conspired to enter into a marriage for the purpose of evading the immigration laws.”

Section 204(c) Applies to Agreements to Enter into Sham Marriages for K1 Petitions

The petitioner argued in the alternative that 204(c) should not apply because the beneficiary had sought a nonimmigrant visa, and section 204(c) only applies to immigrant visa petitions under INA 204. The Board was unpersuaded.

The Board explained that INA 204(c)(2) is triggered when “the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.” It found no support for the petitioner’s position that INA 204(c)(2) only applies to attempts to obtain immigrant visas. “Under the plain language of the statute, an alien who has conspired to enter into a marriage for the purpose of evading the immigration laws by seeking to secure a K-1 fiancé(e) nonimmigrant visa is subject to the bar under section 204(c)(2) of the Act.”

The Board distinguished the instant case from the Administrative Appeals Office (AAO) precedent decision in Matter of Christo’s, Inc., 26 I&N Dec. 537 (AAO 2015), which we have previously discussed on site [see article]. In Matter of Christo’s Inc., the AAO held that section 204(c) did not apply in a case where the alien submitted documents based on a fictitious marriage to a U.S. citizen. The Board explained that in that case, the beneficiary had never met or married the petitioner and had only realized that he was the named beneficiary of a marriage-based petition when he was asked about the marriage at his interview for a different petition. The Board explained that Matter of Christo’s, Inc., applies only in situations where the beneficiary “never met or married” the petitioner. Matter of Christo’s, Inc., 26 I&N Dec. at 541 n.4.

For the foregoing reasons, the Board dismissed the petitioner’s appeal in the instant matter, finding that the revocation of the Form I-130 was justified by INA 204(c).

Conclusion

The central holding in Matter of R.I. Ortega is that using a fraudulent engagement to seek a K1 visa triggers the INA 204(c) marriage fraud bar. Because the sole purpose of a K1 petition is to enter the United States to marry the petitioner, and K1 beneficiaries have no other path to status while in the United States on K1 status apart from that marriage to the petitioner, using a sham engagement as the basis for a K1 petition will generally lead to a finding that the alien conspired to enter a sham marriage to circumvent the immigration laws.

It should go without saying that noncitizens should never enter into or conspire to enter into a sham marriage for immigration benefits. In addition to being illegal, INA 204(c) presents a severe punishment [see article] for those who are caught, as Matter of R.I. Ortega illustrates.

In the event that the USCIS raises marriage fraud concerns about a marriage or engagement that is not fraudulent, the noncitizen should seek immigration counsel immediately for guidance on how to rebut the government’s concerns.