In this article we look at possible next steps after a form I-130 family visa petition or Adjustment of Status 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.
One of the most frustrating aspects of a marriage-fraud denial is that the current marriage may be completely genuine. Many people are shocked when USCIS focuses on a previous relationship from years earlier and uses concerns about that prior case to deny a petition filed by a current spouse, parent, or child.
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.
Warning Signs You May Be Facing a Section 204(c) Problem
- USCIS repeatedly asks questions about a prior marriage.
- You received a Notice of Intent to Deny discussing marriage fraud.
- A new spouse’s petition was denied because of a prior relationship.
- USCIS claims your previous marriage was entered into for immigration benefits.
- You are being asked for evidence regarding a former spouse from many years ago.
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, it is important that you avoid common mistakes by discussing your strategy and options with an experienced immigration attorney.
The best strategy often depends on why USCIS denied the case, what evidence was previously submitted, whether a finding under section 204(c) was made, and whether new evidence exists.
Avoid These Common Mistakes After a Denial Due to Past Marriage
Appealing the I-130 Denial Without Proper Analysis
An appeal may be useful where USCIS misunderstood the facts, overlooked evidence, or incorrectly applied the law. However, from our experience we find that many people simply file a denial when it is not appropriate for their particular case.
Before appealing the denial family visa petition, ask your lawyer to analyze your case. This will help you decide if it is helpful to file an appeal of the I-130 visa denial with the Board of Immigration Appeals (BIA).
Depending on your situation, your lawyer will assess whether it is helpful to file an appeal to respond to each USCIS mistake or allegation with an accurate version of events. On the other hand, your lawyer may advise you that an appeal is not the best strategy for your case.
Filing a new family visa petition When It is Not the Right Option
Another common mistake people make after an I-130/1-485 denial, is to simply file a new form I-130 family visa petition or Adjustment of Status petition.
There are important reasons why this decision should be made carefully. Many people are surprised when the USCIS denies subsequent I-130 petitions with other petitioners citing section 204 (c) reasons.
Also, based on a review of your case and the USCIS grounds for denial, your attorney can advise you if it may be better to file a new petition, and what types of evidence is helpful.
We have observed that many applicants keep re-applying without addressing the underlying problem.
Waiting Until You Receive a Notice To Appear in Removal Proceedings
Many applicants wait until they receive a Notice To Appear in Removal Proceedings before they seek legal help for their family visa petition denial. In some cases there may not be enough time to get the green card safely even with the help of an immigration lawyer.
Based on the reasons for removability in the Notice to Appear, certain eligible applicants in removal proceedings may apply for a section 237 (h) waiver to pardon the previous marriage fraud.
Update: In 2026, in the Matter of Forjoe, the Board of Immigration Appeals restricts the availability of the 237 (a) (1) (H) waiver to misrepresentation or fraud committed at the time of entry and not the time of Adjustment of Status. This is an important change which reduces the number of applicants who can use this waiver.
Overlooking The Effects of A Marriage Fraud Finding on Other Protected Status
Recently, an immigration judge denied an applicant’s asylum application due to past marriage fraud. This serves as a reminder to always seek legal help even when you wish to file a different type of application.
Failing to 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.
Do I Still Have a Chance After a Denial Based on Prior Marriage?
A denial based on a prior marriage is serious, but it is not always the end of the immigration process. The available options depend on the facts of the case, the language used in the denial notice, and whether USCIS made a formal finding of marriage fraud.
Seek Legal Help Early
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
