I-751 notice of intent do deny based on prior sham marriage [merged threads]

[motopokep10 0]

Friend got 2-year conditional green card from first marriage, 10 years ago.  Then divorced and never got the 10-year card through first marriage.  Remarried, got another 2-year green card through 2nd marriage, was battered by US citizen husband, and filed I-751 on waiver grounds of being battered (and hardship).   USCIS started doubting her first marriage, made calls to first husband and his friends, who all said it was a sham marriage.     Now USCIS intends to deny the I-751 filed as a battered spouse waiver, on grounds that first marriage was a sham.

 

Anyone had a similar situation?   Isn't there a law that if USCIS already issued a second green card, and she has a solid waiver case (battery, and marriage terminated but was good-faith marriage), that USCIS is precluded from asserting first marriage is a sham and can't deny her based on that?  Isn't there some exception in the law to allow the I-751 to be granted (she does have a strong waiver grounds). Please help.

[SalishSea 17,837]

22 minutes ago, motopokep10 said:

Friend got 2-year conditional green card from first marriage, 10 years ago.  Then divorced and never got the 10-year card through first marriage.  Remarried, got another 2-year green card through 2nd marriage, was battered by US citizen husband, and filed I-751 on waiver grounds of being battered (and hardship).   USCIS started doubting her first marriage, made calls to first husband and his friends, who all said it was a sham marriage.     Now USCIS intends to deny the I-751 filed as a battered spouse waiver, on grounds that first marriage was a sham.

 

Anyone had a similar situation?   Isn't there a law that if USCIS already issued a second green card, and she has a solid waiver case (battery, and marriage terminated but was good-faith marriage), that USCIS is precluded from asserting first marriage is a sham and can't deny her based on that?  Isn't there some exception in the law to allow the I-751 to be granted (she does have a strong waiver grounds). Please help.

Nope.  

 

USCIS can even denaturalize US citizens who obtained immigration benefits/citizenship based on fraudulent applications.  

[millefleur 5,046]

**Moved from ROC Discussion to Effects of Major Family Changes on Immigration Benefits to be among similar threads**

[geowrian 22,337]

More specifically, in order to successfully remove conditions via the abuse waiver, one must show both 1) abuse and 2) a bona fide marriage.

If a prior marriage was a sham, this is a bar for any future marriage based benefit. Essentially, they made a material misrepresented about the validity of their marriage, and therefore are inadmissible. There is no statute of limitations on fraud or misrepresentation.

They can also review the entire immigration history of the applicant. So if they have a basis to believe they gained their current LPR status incorrectly (i.e. via a petition that should have been denied), that is basis for denial of the I-751 and starting removal proceedings.

 

See INA 204(c) for the explanation as to why the latest I-130 petition "should have" been denied if the prior marriage was a sham to obtain an immigration benefit: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1154&num=0&edition=prelim

Quote

(c) Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud

Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) 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, or (2) 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.

 

Time to lawyer up.

Regardless of what USCIS says, she will (eventually) get to make her case to an immigration judge. Find a good lawyer and heed their advice. Although I would expect it to focus on why the prior marriage was not fraudulent (which can be that it was legitimate but that they only failed to prove it's legitimacy, which is different than a determination of fraud) as that appears to be the basis for the denial now.

[user555 196]

3 hours ago, motopokep10 said:

Anyone had a similar situation?

I looked through the forums to see if there were other cases where the first marriage ended in divorce (there are many threads about this), and the spouse is now trying to remove conditions on the second marriage due to battery, but the ex-husband is now claiming "fraud." I couldn't find any. 

[Mollie09 1,543]

 

10 hours ago, motopokep10 said:

Friend got 2-year conditional green card from first marriage, 10 years ago.  Then divorced and never got the 10-year card through first marriage.  Remarried, got another 2-year green card through 2nd marriage, was battered by US citizen husband, and filed I-751 on waiver grounds of being battered (and hardship).   USCIS started doubting her first marriage, made calls to first husband and his friends, who all said it was a sham marriage.     Now USCIS intends to deny the I-751 filed as a battered spouse waiver, on grounds that first marriage was a sham.

 

Anyone had a similar situation?   Isn't there a law that if USCIS already issued a second green card, and she has a solid waiver case (battery, and marriage terminated but was good-faith marriage), that USCIS is precluded from asserting first marriage is a sham and can't deny her based on that?  Isn't there some exception in the law to allow the I-751 to be granted (she does have a strong waiver grounds). Please help.

 

Did she leave the US between marriages? If she didn't it looks like she's just green card shopping with marriages.

Every application can be held against the applicant forever, as @Jorgedig mentioned. You state and sign that you are being truthful under penalty of perjury with every application.

[motopokep10 0]

On 7/22/2020 at 1:22 AM, geowrian said:

More specifically, in order to successfully remove conditions via the abuse waiver, one must show both 1) abuse and 2) a bona fide marriage.

If a prior marriage was a sham, this is a bar for any future marriage based benefit. Essentially, they made a material misrepresented about the validity of their marriage, and therefore are inadmissible. There is no statute of limitations on fraud or misrepresentation.

They can also review the entire immigration history of the applicant. So if they have a basis to believe they gained their current LPR status incorrectly (i.e. via a petition that should have been denied), that is basis for denial of the I-751 and starting removal proceedings.

 

See INA 204(c) for the explanation as to why the latest I-130 petition "should have" been denied if the prior marriage was a sham to obtain an immigration benefit: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1154&num=0&edition=prelim

 

Time to lawyer up.

Regardless of what USCIS says, she will (eventually) get to make her case to an immigration judge. Find a good lawyer and heed their advice. Although I would expect it to focus on why the prior marriage was not fraudulent (which can be that it was legitimate but that they only failed to prove it's legitimacy, which is different than a determination of fraud) as that appears to be the basis for the denial now.

 

I found a way out:  Section 204(c) does not prohibit an approval of an I-360 classification of a battered spouse.  Once the I-360 is approved, she can file an I-485.  If they deny the I-485 based on section 204(c) (it will be discretionary), I-360 battered spouse classification allows her to obtain waiver of deportation through 237(a)(1)(H)(ii),  and there is a way to adjust (get green card) through 8 USC 1229b, as she's been a green card holder for over 5 years.  

[motopokep10 0]

I-751 filed on 3 waiver grounds (battered spouse, bona fide marriage that ended, and hardship) pending beyond processing times.  Time is running out to file the I-360 for battered spouse classification, because soon it will be 2 years since the divorce and after that, the battered spouse cannot file the I-360.There is a high chance the I-751 will be denied, not because of issues with proving battery or that this 2nd marriage was real, but because of difficulty of proving that the first marriage of well over a decade ago, was not a sham.   If the waiver-based I-751 will be denied after 2 years pass after divorce, the I-360 can't be filed then. The I-360 based on battery during 2nd marriage would be approved regardless of USCIS finding 1st marriage to be a sham, because even if section 204(c) attaches, it does not prohibit an approval of an I-360. USCIS may deny the I-485 that she would file based on I-360 approval, due to same section 204(c) ban, but at least she can get cancellation of removal based on I-360, through section INA § 237(a)(1)(H)(ii), and there is a chance to adjust through 8 USC 1229b.  Can an I-360 be filed by a conditional resident with a pending I-751?  

[TBoneTX 45,319]

Similar-themed threads have been merged.

[motopokep10 0]

1 minute ago, TBoneTX said:

Similar-themed threads have been merged.

hm...my 2nd thread posed a specific and different question:  Can an I-360 be filed if the I-751 is pending?

[Demise 1,289]

38 minutes ago, motopokep10 said:

hm...my 2nd thread posed a specific and different question:  Can an I-360 be filed if the I-751 is pending?

Technically nothing precludes you from having a pending immigration petition while I-751 is pending. You might just have problems when it comes to actually using it since someone who's a permanent resident (including conditional) cannot file for adjustment. You'd basically need USCIS or an immigration judge to rescind your status and then you could file for re-adjustment.

 

But honestly if you can't get the VAWA waiver for I-751 you probably can't get a VAWA petition approved either since both are looking for the same things (bona fide marriage and abuse).

[Villanelle 4,122]

Lets back up a bit. First is this for you or for a friend? If its for you please say so. There is no need to pretend its for a friend on VJ. If it is for a friend its recommended the friend makes an account and posts/joins this thread as questions are best answered directly from them. Its never a good idea to be passing questions and messages through a 3rd party. 

 

Now reading through what was posted. She was married and got a 2yr card and then divorced. Ok. Then what? Did she leave the US? She was suppose to file a 751 if she stayed or otherwise surrender her GC. You then say she married a second time and got a 2yr card and is now trying to ROC under abuse waiver and hardship and divorce right?  Also hardship is very hard to get approved under and is rarely an option. Did she file under hardship herself or use an attny? Im assuming she did it by herself. Hardship is kinda like claiming asylum. Its a very high bar and she probably doesnt qualify for it. If the issue they were having with her ROC was the hardship claim she could fix it by requesting to remove the hardship waiver from her ROC.

 

But you didnt mention anything about that aspect. You are stating they have an issue with her needing to prove 1st was bonafide. VAWA 360 does not apply here. VAWA 360 is to get a GC. She already has one. VAWA laws allow for her to file the abuse waiver for the GC she has.

 

Its very strange that she was able to get the second 2yr GC. When she applied for it they wouldve reviewed her file and if they felt the first marriage was not bonafide she wouldnt have gotten the card from the second marriage.   So its strange that they approved the 2yr card and are now having an issue with the first marriage. Im also not sure why you think you can get a 360 approved if they have a finding of a fraud marriage in the records? https://www.uscis.gov/sites/default/files/err/B9 - Battered Spouse or Child/Decisions_Issued_in_2015/OCT212015_01B9204.pdf

 

What is the specific issue they are having? If an RFE was sent it would be helpful for it be posted with personal info blacked out. Also information is needed about the first marriage like why ROC was never filed, if she left the US, how long between marriages, if any ROC documents were sent for it and if they were denied, etc etc. She must resolve the issue by proving the 1st marriage was bonafide.

[geowrian 22,337]

11 hours ago, motopokep10 said:

I found a way out:  Section 204(c) does not prohibit an approval of an I-360 classification of a battered spouse.  Once the I-360 is approved, she can file an I-485.  If they deny the I-485 based on section 204(c) (it will be discretionary), I-360 battered spouse classification allows her to obtain waiver of deportation through 237(a)(1)(H)(ii),  and there is a way to adjust (get green card) through 8 USC 1229b, as she's been a green card holder for over 5 years.  

I don't believe that is accurate, re: getting the I-360 approved with a prior sham marriage finding.

She would not qualify to file an I-485 with an existing green card.

 

In the end, she will need to demonstrate that the prior marriage was bona fide. There's just not going to be a way around that.

This is beyond DIY....she needs professional assistance.

[retheem 566]

On ‎7‎/‎22‎/‎2020 at 12:07 AM, motopokep10 said:

Friend got 2-year conditional green card from first marriage, 10 years ago.  Then divorced and never got the 10-year card through first marriage.  Remarried, got another 2-year green card through 2nd marriage, was battered by US citizen husband, and filed I-751 on waiver grounds of being battered (and hardship).   USCIS started doubting her first marriage, made calls to first husband and his friends, who all said it was a sham marriage.     Now USCIS intends to deny the I-751 filed as a battered spouse waiver, on grounds that first marriage was a sham.

 

Anyone had a similar situation?   Isn't there a law that if USCIS already issued a second green card, and she has a solid waiver case (battery, and marriage terminated but was good-faith marriage), that USCIS is precluded from asserting first marriage is a sham and can't deny her based on that?  Isn't there some exception in the law to allow the I-751 to be granted (she does have a strong waiver grounds). Please help.

The burden of proof is on her to prove it wasn't a sham, unfortunately.

[Pinkrlion 2,724]

14 hours ago, motopokep10 said:

I-751 filed on 3 waiver grounds (battered spouse, bona fide marriage that ended, and hardship) pending beyond processing times.  Time is running out to file the I-360 for battered spouse classification, because soon it will be 2 years since the divorce and after that, the battered spouse cannot file the I-360.There is a high chance the I-751 will be denied, not because of issues with proving battery or that this 2nd marriage was real, but because of difficulty of proving that the first marriage of well over a decade ago, was not a sham.   If the waiver-based I-751 will be denied after 2 years pass after divorce, the I-360 can't be filed then. The I-360 based on battery during 2nd marriage would be approved regardless of USCIS finding 1st marriage to be a sham, because even if section 204(c) attaches, it does not prohibit an approval of an I-360. USCIS may deny the I-485 that she would file based on I-360 approval, due to same section 204(c) ban, but at least she can get cancellation of removal based on I-360, through section INA § 237(a)(1)(H)(ii), and there is a chance to adjust through 8 USC 1229b.  Can an I-360 be filed by a conditional resident with a pending I-751?  

No, you cannot Remove conditions with a I-360.