Waivers under INA §212(h) Immigration Court

Challenge to INA §204(C) Determination Leads to Approval of Permanent Residence in Tampa Field Office

Our office has successfully challenged the Tampa Field Office’s determination that our client is ineligible for permanent residence. The Field Office sent the client a Notice of Intent to Deny based on the office’s determination that he is barred under INA §204(c).

What is INA §204(c)?

The section of the Immigration & Naturalization Act states:

Notwithstanding the provisions of subsection (b) . . . no petition shall be approved if the alien has previously been accorded a nonquota or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws.

The section prohibits the approval of a lawful permanent residence application if he or she previously sought a benefit under the Act through a marriage deemed to be fraudulent. A fraudulent marriage is one entred for the sole purpose of obtaining an immigration benefit. There are no limits on the duration that elapsed between the fraudulent marriage and the subsequent marriage under which the immigrant is seeking the new benefit.

Overcoming the Service’s Determination

The Service is likely to send a Notice of Intent to Deny the new petition before ruling on the new petition. The Notice would give the grounds under which the Service will likely deny the petition.

The law is very clear on these determinations. The Service has the burden of showing that the previous marriage was in fact fraudulent. Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990). In Tawfik, the Board of Immigration Appeals ruled that the officer must reach his or her own decision regarding the prior marriage. Id. The Board ruled that the officer may rely on the previously submitted evidence but must make a new determination. Id.  

In the most recent decision, Matter of Singh, the Board adopted the “substantial and probative evidence” standard of proof. 27 I&N Dec. 598. This standard means that the evidence makes it more probable that the previous marriage was fraudulent. Id. at 607.

The first challenge that we made to the determination was that the field office did not make its own decision. We argued that the officer used the prior determination in his decision to issue the Notice of Intent to Deny. We argued that the determination was not supported by the evidence in the record and that the evidence clearly showed that the marriage was indeed bona fide. The Service decided to overrule the determination and approve the immigrant visa petition.

Our client is now a permanent resident and will enjoy his life with his family in the United States. Call us at 1(888)963-7326 if you have received a Notice of Intent to Deny based on a determination under INA §204(c).

Questions? Contact Ahmad Yakzan now.

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