In this article we look at possible next steps after a form I-130 family visa petition is denied because of past marriage, marriage fraud allegations or suspicions of a fake marriage for immigration benefits.
Many immigrants are surprised when their form I-130 family visa petition, or a form I-485 Adjustment of Status petition, is denied because of an earlier marriage or fraud allegation. This can happen even when the new visa application is based on a valid, long-term marriage or a parent-child relationship with a US citizen.
Sometimes, the USCIS may allege that a previous family visa application with insufficient documentation is due to marriage fraud. They have used this as a reason to deny a new family visa petition as seen in the Matter of Pak, a Board of Immigration Appeals (BIA) case.
The US Citizenship and Immigration Service (USCIS) says it has the right to deny future visa petitions of an applicant who it believes previously married a US citizen to evade the immigration laws for an immigration benefit. This is sometimes described as a section 204 (c) bar.
With section 204 (c), the USCIS wants to permanently bar any future visa petitions by a would-be immigrant who is subject to this bar.
Options After a Visa Denial Due to Past Marriage
If your family visa petition or green card application is denied because of a past marriage, fraud allegations or section 204 (c) reasons, here are some options below to discuss with your immigration attorney:
Appeal the denial of the form I-130 family visa petition
Before appealing the denial of the form I-130 family visa petition, ask your lawyer if it is helpful to file an appeal of the I-130 visa denial with the Board of Immigration Appeals (BIA). When considering whether to file an appeal, ask if the USCIS made a mistake, and if you submitted all the necessary supporting information with the denied family visa petition to show that your prior marriage was real. For some people it may be valuable to file an appeal to respond to each USCIS mistake or allegation with their own accurate version of events.
File a new family visa petition
Another option is to file a new I-130 family visa petition with appropriate supporting documents to show the validity of the previous marriage and address the USCIS concerns raised in the visa denial notice. Also, if you need to submit new documents your attorney can advise you if it may be better to file a new petition.
Waivers in Removal Proceedings
You may have different options if you are in removal proceedings and cannot obtain a visa approval from the USCIS because of past marriage fraud allegations. Ask your lawyer if you qualify for other immigration relief such as Cancellation of Removal for non-legal permanent residents.
Depending on the reasons for removability in the immigration charging document or Notice to Appear, certain eligible applicants in removal proceedings may apply for a section 237 (h) waiver to pardon the previous marriage fraud.
Apply for Other Protected Status
Consider applying for other Protected Status if you qualify. For some people who qualify, filing a non-frivolous asylum and withholding of removal and Convention Against Torture application may be useful.
Examine Other Immigration Relief
Look at Other Temporary Immigration Relief. Certain types of immigration relief may not lead to a green card but may provide you with temporary immigration benefits, safety from deportation and allow you to get a work permit. Examples include Deferred Enforced Departure (DED) and Temporary Protected Status (TPS). Certain victims of crimes may qualify for U visas which are valid for up to three years.
Seek Legal Help
Finally, seek legal help or advice from an experienced immigration lawyer about your denied immigrant visa petition. Visa denials are complicated, and your lawyer will have a better understanding about the reason the USCIS has denied your case. Also, your immigration attorney can help you determine if the USCIS applied the appropriate legal standard to your case. In addition, they can help you to plan the best way forward for your future legal immigration status.
Conclusion
This article is a good starting point for discussions with your immigration lawyer about possible options after a visa denial.
This is information of a general nature and is not legal advice nor is it intended to replace specific legal advice about your particular situation.
Thank you for reading this article. If you have questions or need our help regarding your form I-130 visa or green card denial, please contact our immigration lawyer, Attorney Doreen at (626) 256 8500, www.emenikelaw.com
Read more: How to respond to a USCIS Notice of Intent to Deny (NOID)
Related: Keeping Your Green Card After Marriage Fraud or Misrepresentation With a 237 (a)1)(H) waiver
Read More: Marriage Fraud Waivers and How They Can Help
