In an interesting and well-written opinion, the Board on June 4th clarified its view of the statutory provision at 204(c) which bars those previously found to have engaged in marriage fraud from obtaining a visa in the future, even in a different marriage. The scenario is unfortunately common. In these cases, sometimes the first marriage is a hoax, designed to get a visa, and the government catches on. But after that denial and a subsequent divorce, the immigrant actually falls in love with their soulmate and wants to obtain permanent residence through this legitimate marriage. INA 204(c) says that’s not possible, and it’s a rule that never goes away. Some courts have even said this prevents your adult child from filing for you, over 20 years later, as long as you previously were found to have engaged in marriage fraud. Ikenokwalu White v. Gonzalez.
Matter of Otiende involved a position the Department of Homeland Security has taken that stretched 204(c) far beyond its language. Although the statute was designed to punish those who had been found to have engaged in marriage fraud, the visa in Otiende was filed by a step-father for his step child. Still, USCIS said that because the child’s mother had previously engaged in marriage fraud, the visa must be denied. Thankfully, the Board disagreed, ruling that the statute applies only to spousal petitions and that a visa petition filed for a child should be decided on its merits.