Marriage Adjustment of Status – Not living together at the time of interview and lying about it to USCIS!

I met with a new client in my office the other day, he presented to me a Notice of Intent to Rescind his status by USCIS. The Service alleges that he is subject to rescission, because he was not living together with his wife at the time of the adjustment interview, and that he had lied about their living arrangements to the interviewing USCIS officer. What can one do in this situation?
The first analysis that comes to mind is Matter of McKee, 17 I & N Dec. 332 (BIA 1980). In Matter of McKee the Board of Appeals held that a visa petition could be approved, even though the parties had separated and the marriage was no longer viable, as long as the marriage was bona fide at inception, and had not been terminated. This is a key point even today and many USCIS officers seems to ignore this concept.

In another case, Matter of Boromand, 17 I&N. Dec. 2811 (BIA 1980), The Board reviewed the evidence and concluded that it did “not appear that the respondent married” his United States citizen wife for the “sole purpose of evading the immigration laws. Based on this finding, the Board concluded that the adjustment could not be rescinded, based on the charge that he had materially misrepresented his living arrangements with his wife at the time of the adjustment interview.

The Board went on to hold that, “since we have concluded that an adjustment application cannot be denied based solely on the nonviability of the marriage at the time of adjustment, the respondent’s misrepresentation cannot be considered material in this regard. The Board concluded that since the marriage was not a sham, the respondent’s misrepresentations, “did not cut off a line of inquiry which would have lead to a denial of his adjustment application.

Thus, the crucial determination in both McKee and Boromand, was the bona fides of the marriage at the time it was entered into, not whether the parties were living together at the time of the adjustment, or whether the marriage was even viable at that point. As long as the marriage was not a sham and had not been terminated, adjustment can still be granted if the parties have separated and no longer have a viable marriage. This is not always east to accomplish, but having this concept down can be very helpful to clients that are in a bind due to circumstances of life and not due to fraud.

So back to my client, I told him that if he could prove that his marriage was bonafide when incepted he may have a chance to fight his Green Card revocation.

This is not the same case when a determination of fraud marriage is in place. Take the recent case of a U.S. citizen, who was paid to engage in a phony marriage with a Cambodian national to evade immigration laws, pleaded guilty Tuesday in federal court. The guilty plea resulted from an investigation by U.S. Immigration and Customs Enforcement (ICE).

Martin and Yota Em participated in a marriage interview with immigration officials in Louisville and falsely claimed that they married in good faith. Phearoun Peter Em acted as an interpreter for Yota Em. On June 30, 2009, Martin and Yota Em were divorced. The marriage between Martin and Yota Em was fraudulent and was entered into solely to evade U.S. immigration laws. Martin admitted that he was paid about $7,000 for participating in the marriage fraud scheme. The maximum potential penalties for Martin are 10 years’ imprisonment, a $500,000 fine, and supervised release for a period of six years.

ICE and USCIS are spending large amount of capital and human power to fight Immigration fraud, we expect this trend to continue in 2011 as well.