Second application for AOS based on marriage to a USC

[Orchid47 2]

Hello everyone! I am in the process of filing Adjustment of Status for my husband, who I met locally in May of 2023. We dated nine months prior to getting married in February of this year. While we were dating, I learned that he had only recently separated from his wife of almost 7 years. To reassure me that they were in the process of getting a divorce and nothing funny was going on, he introduced me to her. She confirmed that they had grown apart and were no longer living together. Since it seemed they were on good terms and she had nothing bad to say about his character, I proceeded with the relationship. My husband did explain to me that he was not a green card holder and had only received an EAD, which he had been renewing annually. Apparently, his initial request for AOS through his previous marriage was denied due to insufficient evidence to prove a bona fide marriage and his case was just sitting in appeals. To date, his ex-wife has not contacted USCIS to withdraw her petition. We are expecting our first child together next month and wishing to put his immigration issues behind us. Any advice on how to proceed?

 

Timeline of events:

09/19/2016 - Legally entered US on B2 visa

02/13/2017 - Married former USC wife

10/31/2017 - First I-485 application

03/15/2019 - First interview

09/12/2019 - Second interview

05/21/2021 - USCIS denied I-130

08/23/2021 - Second I-485 application

05/12/2022 - Another interview

??/??/2023 - Second denial

05/01/2023 - Appeal by EOIR-29

05/21/2023 - We met

05/31/2023 - Moved out of marital home

12/27/2023 - Divorce finalized

02/16/2024 - We married

 

Thank you all in advance.

[Crazy Cat 41,806]

He cannot erase the issues of the past.  I assume he has a very good attorney.  Personally, I would be very wary.  

Edited October 12 by Crazy Cat

[Family 3,988]

4 hours ago, Orchid47 said:

We are expecting our first child together next month and wishing to put his immigration issues behind us. Any advice on how to proceed?

Congratulations on your baby news. 
his ‘ immigration issues ‘ won’t get easily solved , so prepare yourself mentally for the challenge. ..and budget for the legal help he will need. ..after BIA , in EOIR. 
 

It’s good he is on good terms w ex…but very odd that he introduced you to her as “ character reference “, so to speak.

 

He has no choice but to apply for another adjustment/new petition…even though USCIS will definitely deny it. End of the road here is immigration court.

 

https://www.cliniclegal.org/resources/family-based-immigration-law/spousal-petitions/five-things-know-about-fraud-and-marriage

1. Section 204(c) May Apply Even if the First Petition Is Denied for Insufficient Evidence Rather than for 204(c)

   In another case decided last year, Matter of Pak, 28 I&N Dec. 113 (BIA 2020), the BIA rejected the theory that the section 204(c) bar should not apply where the prior petition was denied based on insufficient evidence and not on a formal finding of marriage fraud. The BIA determined that the bar to approval of a subsequent petition may apply regardless of whether the agency had explicitly made a finding of marriage fraud when it denied the first petition. The BIA found that “the broad phrasing and the absence of a temporal requirement” in the statute meant the bar could be applied anytime there is “substantial and probative evidence” of marriage fraud, which the BIA found present in this particular case. A more detailed summary of Matter of Pak can be found here: https://cliniclegal.org/resources/family-based-immigration-law/new-bia-decision-addresses-scope-ina-ss-204c.

[Orchid47 2]

1 hour ago, Family said:

Congratulations on your baby news. 
his ‘ immigration issues ‘ won’t get easily solved , so prepare yourself mentally for the challenge. ..and budget for the legal help he will need. ..after BIA , in EOIR. 
 

It’s good he is on good terms w ex…but very odd that he introduced you to her as “ character reference “, so to speak.

 

He has no choice but to apply for another adjustment/new petition…even though USCIS will definitely deny it. End of the road here is immigration court.

 

https://www.cliniclegal.org/resources/family-based-immigration-law/spousal-petitions/five-things-know-about-fraud-and-marriage

 

1. Section 204(c) May Apply Even if the First Petition Is Denied for Insufficient Evidence Rather than for 204(c)

   In another case decided last year, Matter of Pak, 28 I&N Dec. 113 (BIA 2020), the BIA rejected the theory that the section 204(c) bar should not apply where the prior petition was denied based on insufficient evidence and not on a formal finding of marriage fraud. The BIA determined that the bar to approval of a subsequent petition may apply regardless of whether the agency had explicitly made a finding of marriage fraud when it denied the first petition. The BIA found that “the broad phrasing and the absence of a temporal requirement” in the statute meant the bar could be applied anytime there is “substantial and probative evidence” of marriage fraud, which the BIA found present in this particular case. A more detailed summary of Matter of Pak can be found here: https://cliniclegal.org/resources/family-based-immigration-law/new-bia-decision-addresses-scope-ina-ss-204c.

Thanks for your feedback. We are planning on submitting his application sometime within the next two weeks. Yes, it seems that we are just buying time as we save up for legal fees and prepare for the inevitable. 

[EM_Vandaveer 2,408]

Your husband ultimately has to prove to Immigration Court that his first marriage wasn't fraudulent and USCIS  denied his applications based on his first marriage in error. Without this, the new application based on the 2nd marriage is bound to be denied.

[milimelo 4,475]

The timeline is a bit confusing - why was his first I-130 denied and were both I-485s also denied? If so, you'll also have an uphill battle as there very well may be something not disclosed. 

It's often the person is still married in their home country and that information surfaces at some point making subsequent marriages null and void. 

[Orchid47 2]

12 hours ago, milimelo said:

The timeline is a bit confusing - why was his first I-130 denied and were both I-485s also denied? If so, you'll also have an uphill battle as there very well may be something not disclosed. 

It's often the person is still married in their home country and that information surfaces at some point making subsequent marriages null and void. 

Yes, they filed both applications concurrently and both the I-130 and I-485 were denied on 05/21/2021. It looks like the ex-wife applied for public benefits using another address (maybe a parent or relative) and listed herself as “single” in order to qualify for said benefit. The address she used was nowhere to be found in the documentation she submitted to USCIS. The W-4 they obtained from her workplace had the same address (parent or relative) and her marital status listed as “single” even though they were legally married at that time. Her ex/children’s father reported a car stolen (registered in her name) and he provided yet another address for her residence, which had never been mentioned anywhere in her address history. Their lease was another issue, as it had been edited (a different phone number for herself and an additional occupant) — lease they provided didn’t match leasing agent’s. It was also mentioned that some of their answers during the interview were inconsistent. Example: ex-wife had five tattoos and they gave different descriptions of what was written on them. USCIS issued a NOID on 11/13/2020 and gave them 33 days, but they did not respond in time; there, the first I-130 was considered abandoned and denied.

 

On 08/23/2021, his former wife filed the second I-130 application. They were interviewed again on 05/12/2022 and received an NOID on 06/07/2022 stating, “A petitioner must establish eligibility at the time of filing a petition; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts.” It goes on to state they have 33 days to respond. This is the point at which they finally hired a lawyer. The lawyer responded to the NOID on 06/30/2022 — at least that’s what I see on the letterhead. My husband told me the file did not get sent out by the lawyer within the timeframe, and I am guessing that was the reason for the second denial of I-130 (I don’t have a copy for date or actual reason given). But that second denial led to them to appeal by EOIR-29 on 05/01/2023.

 

In his defense, my husband does not pay close attention to details and does not take life too seriously. His main focus is usually work, education, paying bills and anything food related. He told me himself that he has never been concerned about his grades, just passing. I think he also trusts other people too easily without considering their motives. Lastly, English is his third language and I am correcting him all the time. He will tell me that he has been fasting all day. Then, in the same breath, he will thank me for preparing something that he ate earlier that same day. I tell him it can’t possibly be both, either he ate or has been fasting all day. I feel like, for these reasons alone, he is almost doomed to fail an interview. I told him, unless he wants to be deported, he had better start paying attention and actually think about what he is going to say before just saying something. He is a really good guy — very consistent, dependable and hardworking — just a bit simple.

 

When I looked over all of the documents they had previously submitted in order for me to complete a new application for I-130 and I-485, I immediately found issues. In the place where the form asked five years of address history and to use additional sheets, they did not do that (less than five years provided). Date of last physical address outside of the US is obviously wrong (maybe transposed). The start dates for employment outside of the US were different, even though they appeared on the exact same page (typed the info twice with two different dates). Even for parent’s place of birth and current residence the city was typed in all fields instead of typing the country where it belonged. It was also noted on a NOID/denial that the petitioner failed to even include a copy of the beneficiary’s driver’s license with its appropriate form. It is frustrating for me to see so many little mistakes, where they clearly didn’t follow directions, at first glance — and he never caught them until I pointed them out.

 

This is definitely an uphill battle, but I have no reason to suspect anything criminal or another wife abroad. There was never any mention at any point in the documentation questioning the validity of his legal marriage here in the US, just a lack of evidence and some inconsistencies that caused suspicion of bona fide marriage. We are of the same religion and I am aware of how polygyny is practiced in Nigeria, so I know some of the signs to look out for. I am confident that this is not an issue in his case.

[Ban Hammer 13,327]

3 posts removed for tos violations.

2 posts removed for quoting those posts.

significant admin action has been taken against one account, along with that account being thread banned.



reminder to all - if you have nothing constructive to add to this thread, do not post.............

Edited October 14 by Ban Hammer

[Family 3,988]

5 hours ago, Orchid47 said:

Yes, they filed both applications concurrently and both the I-130 and I-485 were denied on 05/21/2021. It looks like the ex-wife applied for public benefits using another address (maybe a parent or relative) and listed herself as “single” in order to qualify for said benefit. The address she used was nowhere to be found in the documentation she submitted to USCIS. The W-4 they obtained from her workplace had the same address (parent or relative) and her marital status listed as “single” even though they were legally married at that time. Her ex/children’s father reported a car stolen (registered in her name) and he provided yet another address for her residence, which had never been mentioned anywhere in her address history. Their lease was another issue, as it had been edited (a different phone number for herself and an additional occupant) — lease they provided didn’t match leasing agent’s. It was also mentioned that some of their answers during the interview were inconsistent. Example: ex-wife had five tattoos and they gave different descriptions of what was written on them. USCIS issued a NOID on 11/13/2020 and gave them 33 days, but they did not respond in time; there, the first I-130 was considered abandoned and denied.

Ok Lady, you have an eye for detail are a superb writer …but how you keep Calm and collected as you tell the story is amazing.

 

With baby on the way and your declared commitment to the fellow…I am guessing you don’t want to hear Cut Your Losses and Run ! 😂

 

But, here is an objective view from a stranger on the internet : his 1st marriage hits all the points in Matter of Pak …address issues, inconsistencies galore, the fact that he introduced you to the ex. ..I don’t see a win at the end of the road.

 

Add to that , the very real risk that if they put pressure on the ex for public benefit fraud …she will cooperate .

 

Tough spot…find best attorney you can , have lots of fun with your fellow and make each day count.
 

 

 

Five Things to Know about Fraud and Marriage-Based Petitions

 

Five Things to Know about Fraud and Marriage-Based Petitions

Last Updated

April 26, 2021

Topics

Spousal Petitions

Family-Based Immigration Law

In the past year, the Board of Immigration Appeals, or BIA, has published three decisions relating to marriage fraud and INA § 204(c). This section bars approval of a visa petition where the beneficiary has previously participated in a fraudulent marriage or has attempted or conspired to do so. In order for U.S. Citizenship and Immigration Services, or USCIS, to make a section 204(c) finding, there must be “substantial and probative evidence” in the record that the beneficiary previously attempted or conspired to enter into a fraudulent marriage. The recent decisions issued by the BIA in Matter of R.I. Ortega, Matter of Pak, and Matter of Mensah illustrate the far-reaching power of the marriage fraud bar. This bar has no temporal limitation and can impede a client’s ability to ever obtain permanent resident status, regardless of how much time has passed since the alleged fraud or how compelling the equities are in the current family-based case.

https://www.cliniclegal.org/resources/family-based-immigration-law/spousal-petitions/five-things-know-about-fraud-and-marriage

 

BIA Decision Offers View into the World of Marriage Fraud

A high standard to find fraud

 

By Andrew R. Arthur on November 3, 2020

 

On Friday, the Board of Immigration Appeals (BIA) issued a decision in Matter of Pak. It offers a view into the somewhat esoteric world of marriage fraud, and the standards that the government must follow in finding and proving it.

…

The following day, the FOD asked for information to establish that the first marriage was bona fide, and not simply entered into to gain an immigration benefit.

The petitioner responded with a letter in which she described her interactions with her husband during his first marriage. They had been "friends", she explained, she saw him wearing a wedding ring, and he had introduced her to his first wife at a restaurant.

..
 

Summary of Findings describes significant discrepancies in the accounts given by the beneficiary and his first wife regarding (1) whether and for how long the couple lived at the claimed marital residence; (2) their places and type of employment (and whether they, in fact, worked at the same store owned by the beneficiary's father); and (3) the former wife's living arrangements in Salem and the reasons why the beneficiary paid rent for her apartment there. Additionally, the record contains documentation of contradictions that arose during the beneficiary's two visa interviews regarding how, when, and where he met his first wife, as well as how their relationship progressed to marriage.

https://cis.org/Arthur/BIA-Decision-Offers-View-World-Marriage-Fraud

[Orchid47 2]

7 minutes ago, Family said:

Ok Lady, you have an eye for detail are a superb writer …but how you keep Calm and collected as you tell the story is amazing.

 

With baby on the way and your declared commitment to the fellow…I am guessing you don’t want to hear Cut Your Losses and Run ! 😂

 

But, here is an objective view from a stranger on the internet : his 1st marriage hits all the points in Matter of Pak …address issues, inconsistencies galore, the fact that he introduced you to the ex. ..I don’t see a win at the end of the road.

At this point, I have very little option but to remain calm. Panicking changes absolutely nothing about our current situation, and I don’t want to put myself or baby at risk by going into a panic. Yes, I am committed to my marriage and my husband until he gives me reason not to be. We are doing our best to make lemonade with baskets full of lemons. If America is not meant to be our permanent home, I am okay with that. We will make a life for ourselves elsewhere, if necessary.

[Boiler 45,442]

I am just going to cover the B as it seems all the other Fraud Indicators have been ticked.

 

It seems unbelievably common for those applying for a B particularly in Lagos to state on their application that they are married, now for a B no one is going to check but when it comes to a GC the DS160 is pulled out and someone says hang on, he said he was married but where is the Divorce Certificate.

 

[Orchid47 2]

22 minutes ago, Boiler said:

I am just going to cover the B as it seems all the other Fraud Indicators have been ticked.

 

It seems unbelievably common for those applying for a B particularly in Lagos to state on their application that they are married, now for a B no one is going to check but when it comes to a GC the DS160 is pulled out and someone says hang on, he said he was married but where is the Divorce Certificate.

 

I’ve read through both denials/NOID he has on hand and there hasn’t been any mention of a marriage in Nigeria… We have 99 problems but, so far, that’s not one of them. 🥲

Edited October 14 by Orchid47

[Boiler 45,442]

They only need one reason, just a heads up.