A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, June 18, 2013

Mother's previous marriage fraud does not bar her child's visa petition as a stepchild

A stepchild’s immigration visa petition may still be approved even though his mother was previously found to have entered into a sham marriage in order to obtain legal immigration status, according to a recent decision by the Board of Immigration Appeal (BIA).

Section 204(c) of the Immigration and Nationality Act (INA) provides that a person may not obtain an immigrant visa if he or she was previously found to have obtained, or attempted to obtain, immigration benefits based on a sham marriage. In the Matter of Eugene Reagan OTIENDE, 26 I&N Dec. 127 (BIA 2013), a U.S. citizen petitioner filed a visa petition on behalf of his stepchild based on his marriage to the child’s mother.  However, the mother was previously found to have committed marriage fraud. Consequently the USCIS denied the child’s visa petition under section 204(c).

On appeal, the BIA held that although a visa petition filed by a U.S. citizen for a spouse may be subject to denial under section 204(c) based on the spouse’s prior marriage fraud, that section does not prevent the approval of a petition filed by the citizen on behalf of the spouse’s child.  The Board reasoned that the child’s petition is a separate application which must be considered on its merits to determine if the child meets the definition of a “stepchild” under the immigration law.

A child is considered a stepchild under the INA if the petitioner entered into a valid marriage with the child’s mother before the child reaches the age of 18. Here, USCIS denied the child’s petition solely based on section 204(c) without considering the merits of the child’s petition.   The rationale is as follows: since the child’s mother committed marriage fraud before, she can no longer apply for an immigrant visa based on a second marriage to another U.S. citizen under section 204(c).  Hence, absent a valid marriage-based visa petition between the mother and the petitioning spouse, USCIS concluded that the child’s petition must also be denied as his status hinges on his mother’s marriage.

The Board disagreed and held that the mother’s previous marriage fraud only precludes her from applying for an immigration visa, according to the plain language of section 204(c).  The statute does not affect the child’s eligibility to apply for stepchild status based on his relationship to the stepfather in the current marriage.  The child’s case must be considered on its own, according to the board.

This Board decision is a fair one, as the child’s petition should not be denied based on his mother’s previous marriage fraud. Although the Board held in favor of the petitioner, it does not mean that the child’s case will definitely be approved.  The petitioner must show that the marriage creating the stepchild relationship is valid and took place before the child reaches 18.  Their marriage will be subject to strict scrutiny given the wife’s previous marriage fraud. If the marriage is found to be a sham, the child’s case will be denied.

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