USCIS approved the Form I-129F K-1 fiancé petition of our U.S. citizen client, after issuing a Notice of Intent to Deny it under INA 204(c). In the NOID, USCIS claimed her foreign national fiancé entered a prior sham marriage to a Form I-485 green card applicant solely to gain permanent residence as a derivative beneficiary.
As counsel, we filed a Response to the NOID, with documentary evidence and legal argument demonstrating the prior marriage was real but ended because the parties grew apart. Eight months later, USCIS issued a Form I-797, Approval Notice for the I-129F petition, which cleared the way for the beneficiary to apply for the K-1 visa.
When the K-1 applicant appeared for his visa interview, however, the U.S. Consulate issued a refusal notice under INA 212(a)(6)(C)(i) (fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits). It had concerns over the prior marriage, even though USCIS had already resolved this issue in the applicant’s favor.
As counsel, we submitted a Motion to Reconsider and Rescind the section 212(a)(6)(C)(i) Inadmissibility Finding, with documentary evidence and legal argument showing the K-1 visa applicant had never used fraud or willful misrepresentation of material facts in any applications to receive U.S. immigration benefits. We further pointed out the (6)(C)(i) finding conflicted with USCIS’ approval of the Form I-129F petition, after it dropped the 204(c) charge.
One week later, the U.S. Consulate issued an email granting the Motion and provided further instructions for the applicant to collect his K-1 visa.
USCIS Charges Beneficiary with INA 204(c)/Marriage Fraud Bar in Form I-129F Petition
Section 204(c) of the Immigration & Nationality Act prohibits USCIS from approving a visa petition (e.g. Form I-129F or I-130) if the beneficiary attempted or conspired to enter a marriage for the purpose of evading U.S. immigration laws. If there is substantial and probative evidence of such an attempt or conspiracy in the beneficiary’s file – regardless of whether the benefit was received – USCIS will deny the petition under 204(c).
In its Notice of Intent to Deny our client’s Form I-129F petition, USCIS claimed it was apparent the beneficiary entered a prior sham marriage to a Form I-485 green card applicant for the sole purpose of circumventing immigration laws. USCIS determined that, as such, it was prohibited from approving the petition under 204(c).
The NOID marked the first opportunity to respond to the allegations of a prior sham marriage. In its earlier Request for Evidence (RFE), USCIS had asked only for proof of a real relationship and engagement between the couple. There was no mention of the 204(c) bar. The petitioner responded to the RFE on her own and then USCIS took several months to issue the NOID on section 204(c) grounds.
USCIS Vacates INA 204(c) Charge and Approves Form I-129F Petition Based on NOID Response
The petitioner and beneficiary next contacted Dyan Williams Law for representation in addressing the NOID. Within 30 days, we filed a timely and persuasive Response to the NOID, which contained credible testimonies, objective evidence and legal argument establishing the beneficiary and his prior spouse entered a valid, good-faith marriage, before it ended due to unresolved differences.
After receiving the Response, USCIS agreed there was no substantial and probative evidence to sustain the 204(c) finding and approved the Form I-29F petition. The parties then consulted with Dyan Williams Law to complete the K-1 visa application at the U.S. Consulate.
U.S. Consulate Issues K-1 Visa Refusal Notice under INA 212(a)(6)(C)(i)
To find that a visa applicant is inadmissible or ineligible for a visa under INA 212(a)(6)(C)(i), the consular officer must find all of the following elements are met:
- The applicant made a false representation;
- The false representation was willfully made;
- The fact misrepresented is material;
- The false representation was made to a U.S. government official, such as a consular officer; and
- The applicant, by using fraud or misrepresentation, seeks to procure, sought to procure, procured, a benefit under U.S. immigration laws, such as a visa or admission into the United States.
When the beneficiary appeared for his interview at the U.S. Consulate, we expected his K-1 visa to be granted because USCIS had approved the Form I-129F petition and thus found there was no substantial and probative evidence of a prior sham marriage. He was stunned when, at the end of the interview, the U.S. Consulate issued a K-1 visa refusal notice citing to “6C1.” At the visa interview, the U.S. consular officer merely stated it was based on the prior marriage.
U.S. Consulate Rescinds INA 212(a)(6)(C)(i) Inadmissibility Finding and Grants K-1 Fiancé Visa Based on Motion to Reconsider
The petitioner and beneficiary next contacted Dyan Williams Law for representation in overcoming the (6)(C)(i) inadmissibility finding. We discussed the option of filing a Form I-601 waiver of inadmissibility with USCIS, which would involve a long processing time and the high evidentiary burden of proving the petitioner would face “extreme hardship” if the beneficiary was denied admission to the United States. Ultimately, with recommendation from counsel, they decided to instead pursue a Motion to Reconsider with the U.S. Consulate.
With a more flexible filing timeframe, we took several months to gather the necessary documentary evidence and written testimonies, including a declaration from the prior spouse confirming her marriage to the beneficiary was bona fide. Within a year of the visa refusal notice, we submitted the Motion to Reconsider and Rescind Inadmissibility Finding to the U.S. Consulate. In counsel’s legal memorandum, we explained the facts and laws to support the lifting of the (6)(C)(i) bar.
The Form I-129F approval did not necessarily mean the elements of fraud or willful misrepresentation were not met, but only that USCIS did not have substantial and probative of a prior sham marriage. Thankfully, it did not take long for the U.S. Consulate to make a positive decision.
Ten days later, the U.S. Consulate sent an email notice stating it removed the (6)(C)(i) bar and provided further instructions for the K-1 visa process. The applicant completed the next steps and, three months later, received the visa for lawful admission to the U.S. in K-1 status.
USCIS Approves Form I-485 Application for Permanent Residence
Within 90 days of the K-1 visa holder’s arrival in the United States, he and his U.S. citizen fiancée married and began their life together. They then contacted Dyan Williams Law to represent them in the Form I-485 green card application process.
Less than three months after USCIS received the Form I-485 application, they appeared for their scheduled Adjustment of Status interview before USCIS. The application was readily approved on the spot, with no doubts from USCIS regarding the beneficiary’s prior marriage or his existing marriage to the petitioner. The USCIS officer said they had great documentary evidence for an approval and did not ask about the NOID, the (6)(C)(i) visa refusal notice, or their relationship.
USCIS granted a two-year conditional green card because the marriage was less than two years old at the time it approved the Form I-485 application. The beneficiary will need to file a Form I-751 petition to remove the condition on his residence and to keep his U.S. immigration status. He may also file for naturalization (U.S. citizenship) when he meets the continuous residence requirement and other eligibility criteria.
It took 6 years for the beneficiary to receive his permanent residence from the time the U.S. citizen filed the Form I-129F petition with USCIS. This long and complicated U.S. immigration journey is a true success story for the clients and Dyan Williams Law.
# # #
The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.
