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Permanent Bar for Marriage Fraud -- Not Applicable to Stepchild of USC Petitioner, says BIA

Marriage fraud is considered to be a very serious immigration violation. A non-U.S. citizen spouse who has sought or obtained lawful permanent resident status based on a sham marriage to a United States citizen ("USC") or lawful permanent resident faces a permanent bar to subsequent visa petition approval. See Immigration and Nationality Act (INA) section 204(c). But does the permanent bar necessarily extend to a stepchild seeking to be qualified as an immediate relative of a United States citizen petitioner? The Board of Immigration Appeals ("BIA") recently addressed this question in Matter of Eugene Reagan Otiende ("Otiende").

In Otiende, the petitioning stepfather Todd Corley Dunn was a United States citizen who filed immigrant visa petitions for his wife and her son -- Dunn's stepson, Otiende. The Director of USCIS determined that Dunn's wife was ineligible for an immigrant visa, based on a finding that she had previously entered into a fraudulent marriage for the purpose of obtaining lawful permanent resident status, i.e. a "green card," and denied her visa petition accordingly. The Director further determined that this finding also rendered Otiende ineligible for visa petition approval, reasoning that Otiende had no legitimate stepchild relationship with Dunn by virtue of the previous "sham" marriage entered into by his mother.

The BIA reversed USCIS's denial with respect to the petition filed for Otiende, holding that the permanent bar contained in INA section 204(c) on its face applies only to a spouse who obtained or sought to obtain status as a lawful permanent resident pursuant to a fraudulent marriage. USCIS erred in denying Dunn's immigrant visa petition for Otiende because (1) Otiende was not a party to, and never requested status based upon, his mother's prior marriage and (2) USCIS never examined whether Dunn's marriage to Otiende's mother was itself valid. Therefore, the BIA returned the case to the Director for further proceedings and to enter a new decision on Dunn's visa petition for Otiende.

USCIS is not infallible. Officers have been known to misapply the law in the course of adjudicating applications for immigration benefits. That said, an immigration attorney should be consulted before an application is submitted to USCIS so that potential visa ineligibility issues can be addressed. A competent immigration attorney can also help explain what appeal rights might be available in case a notice of denial is received.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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