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13 Matter of DeFaria</h1></center>
17 Olga Fedoryaka entered the US March of 1995 on a K1 Fiancé Visa
18 with Michael Moffat from Tempe, Arizona. They married on May 27, 1995 within
19 the require 90 period. Shortly after marrying Michael Moffat left for Thailand
20 for 6 months as part of his job. Olga could not accompany him since she
21 had not yet completed the Adjustment of Status process. By the time Michael
22 returned 6 months later their marriage was showing signs of difficulties
23 and they separated and were divorced by May 3, 1996.
24 <p>Olga remained in the US, obtained a job (Michael had helped her obtain
25 a green card) and an apartment. Near the end of 1996 Olga met John Miller
26 and they dated for a while. They married around April of 1997 for a very
27 brief time. Shortly thereafter Olga felt that she did not love John and
28 could not see a lifetime of togetherness with him so she filed for divorce.
29 The divorce was finalized by July 14, 1997. At no time did Olga file for
30 any INS benefits from her marriage to John Miller.
31 <p>After divorcing John, Michael, Olga's first ex husband, contacted Olga.
32 He was concerned that Olga was overstaying her welcome to the US. He had
33 consulted with an immigration lawyer who informed him that due to a change
34 in INS laws as of April 1997, Olga had 180 days to leave the US and she
35 would be able to later return to the US without penalty. Michael urged
36 Olga to consider leaving the US and offered to help her go to Hong Kong
37 on a tourist visa. Olga left the US on September 27, 1997 and stayed with
38 Michael for 3 months in Hong Kong. When her Hong Kong tourist visa expired
39 she returned to Kiev, Ukraine.
40 <p>I met Olga in July, 2000. In September, 2000 we got engaged and I started
41 the K1 Fiancé visa process. I visited her again in December, 2000
42 and we were approved in January 2001. We had an interview date of April
43 23, 2001 in Warsaw. While at the interview the consular questioned Olga's
44 exit from the US, requiring us to obtain additional documentation of her
45 departure from the US and entry from Hong Kong to Kiev, Ukraine. We provided
47 <p>Next, in explaining the sequence of events in US the supervising consular
48 grew suspicious about Olga's second marriage to John Miller. He voiced
49 his concern that the marriage was a sham marriage intended to fraudulently
50 obtain immigration benefits and decided to send our application back to
51 the INS in Vienna for "administrative review".
57 Can it be said that Olga entered into a sham marriage intended to obtain
58 immigration benefits if she never applied for any immigration benefits?</li>
61 Who has the burden of proof for this? Us? Or the INS? (considering that
62 the potential penalty here is a permanent bar from entry into the US I
63 would hope that the INS would need more than just a suspicion!). Where
64 is this proof derived from? Just the "record" from the INS of Olga's past,
65 the current K1 Fiancé petition I filed and/or any oral statements
66 given to INS officials? Can they say obtain testimony from John Miller
67 and Olga's other friends in Arizona?</li>
70 What is Administrative Review? Is it just a reapproval or denial?</li>
73 Assuming the Administrative Review is favorable what is the next step?
74 Do we need to rescheduled another interview in Warsaw or is her visa approved
75 and we just need to pick it up? Also, how long of a process is it for Administrative
76 Review? Can we get them to hasten the rescheduling of the interview in
81 Regarding the law</h2>
82 I've spent some time researching INS Interim Decisions and found the following
86 From <i>INTERNATIONAL MATCHMAKING ORGANIZATIONS: A REPORT TO CONGRESS</i>:
87 <blockquote><font color="#009900">.. One must also remember that fraud
88 may take two basic forms. First, the marriage may be one in name only,
89 for the sole purpose of securing immigration benefits; often money is exchanged
90 in these cases. Second, the immigrant may feign interest in the U.S. citizen
91 or LPR spouse, only to abandon him or her after the marriage. In either
92 type of fraud, the immigrant may be a woman or a man.</font></blockquote>
93 No money was exchanged and Olga never attempted to secure an immigration
95 <p>According the the I-129F form itself, it states:
96 <blockquote><font color="#009900">What are the penalties for committing
97 marriage fraud or submitting false information or both?</font>
98 <p><font color="#009900">Title 18, United States Code, Section 100 states
99 that whoever <u>willfully and knowingly falsifies a material fact, makes
100 a false statement, or makes use of a false document</u> will be fined up
101 to $10,000 or imprisoned up to five years, or both.</font>
102 <p><font color="#009900">Title 8, United States Code, Section 1325 states
103 that any individual who <u>knowingly enters into a marriage contract for
104 the purpose of evading any provision of the immigration laws</u> shall
105 be imprisoned for not more than five years, or fined not more than $250,000,
106 or both.</font></blockquote>
107 <font color="#000000">Again Olga never applied for any INS benefit or visa
108 so she did not actually evade any provision of the immigration laws nor
109 did she falsify a material fact, make a false statement or make use of
110 a false document. She was never found guilty under Title 18 of the USC
111 Section 100 nor fined nor imprisoned.</font><font color="#000000"></font>
112 <p>This part looks bad:
113 <blockquote><font color="#009900">Notwithstanding the provisions of subsection
114 (b) no petition shall be approved if (1) the alien has previously been
115 accorded, or has sought to be accorded, an immediate relative or preference
116 status as the spouse of a citizen of the United States or the spouse of
117 an alien lawfully admitted for permanent residence, by reason of a marriage
118 determined by the Attorney General to have been entered into for the purpose
119 of evading the immigration laws or (2) the Attorney General has determined
120 that the alien has attempted or conspired to enter into a marriage for
121 the purpose of evading the immigration laws.</font></blockquote>
122 Again the phrase "conspired to enter into a marriage for the purposes of
123 evading the immigration laws". From my understanding conspired means "to
124 join in a secret agreement to do an unlawful or wrongful act or an act
125 which becomes unlawful as a result of the secret agreement" and could be
126 construed to mean that Olga intended to try. But how do you prove or disprove
128 <blockquote><font color="#009900">The Service has previously determined
129 that a variety of evidence may be used to establish a good-faith marriage,
130 and a self-petitioner should submit the best evidence available. Evidence
131 of good faith at the time of marriage may include, but is not limited to,
132 proof that one spouse has been listed as the other's spouse on insurance
133 policies, property leases, income tax forms, or bank accounts; and testimony
134 or other evidence regarding courtship, wedding ceremony, shared residence
135 and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other
136 types of readily available evidence might include the birth certificates
137 of children born to the relationship; police, medical, or court documents
138 providing information about the relationship; and affidavits of persons
139 with personal knowledge of the relationship. Self-petitioners who submit
140 affidavits are encouraged to submit affidavits from more than one person.
141 Other types of evidence may also be submitted; the Service will consider
142 any relevant credible evidence.</font></blockquote>
143 Since Olga's marriage was so short all of this will be hard to prove. She
144 did get pregnant and have an abortion. Not sure if this would help.
145 <blockquote><font color="#009900">The Act does not define a "good-faith"
146 marriage or provide guidelines for evaluating the bona fides of a marriage;
147 however, persons applying for immigration benefits based on a marriage
148 are generally required to establish that they entered into the marriage
149 in good faith, and a significant body of case law has developed concerning
150 the interpretation of this requirement. It has long been held that a marriage
151 that is entered into for the primary purpose of circumventing the immigration
152 laws, referred to as a fraudulent or sham marriage, cannot be recognized
153 as enabling a spouse to obtain immigration benefits. Lutwak v. United States,
154 344 U.S. 604 (1953) and Matter of Phillis, 15 I&N Dec. 385 (BIA 1975).
155 A spousal petition will not be denied, however, solely because the spouses
156 are not living together and the marriage is no longer viable. Matter of
157 McKee, 17 I&N Dec. 332 (BIA 1980). <u>The key factor in determining
158 whether a person entered into a marriage in good faith is whether he or
159 she intended to establish a life together with the spouse at the time of
160 the marriage</u>. The person's conduct after marriage is relevant only
161 to the extent that it bears upon his or her subjective state of mind at
162 the time of the marriage. <u>Separation from the other spouse, even shortly
163 after the marriage took place, does not prove, by itself, that a marriage
164 was not entered into in good faith</u>. Bark v. INS, 511 F.2d 1200 (9th
165 Cir. 1975).</font></blockquote>
166 Olga said to me that she had hoped that her marriage to John were work
167 out but that she realized that she did not love this man and that the marriage
168 would not result in a lifetime together so she decided to divorce and not
169 attempt to file for any INS benefits.
170 <p>In <b>Interim Decision #3380</b>:
171 <blockquote><font color="#009900">It is long settled that <u>inadmissibility
172 for immigration fraud does not ensue from the mere purchase of fraudulent
173 documents, absent an attempt to fraudulently use the document for immigration
174 purposes</u>. Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975); Matter
175 of Sarkissian, 10 I&N Dec. 109 (BIA 1962); Matter of Box, 10 I&N
176 Dec. 87 (BIA 1962); accord Matter of D-L- & A-M-, 20 I&N Dec. 409
177 (BIA 1991); cf. Matter of Serna, supra (stating that mere possession is
178 not a crime involving moral turpitude).</font></blockquote>
179 In this interim decision the respondent "Obviously, the respondent admits
180 to procuring one document in the form of a fraudulent birth certificate.
181 The respondent testified that he purchased the birth certificate in Los
182 Angeles, California, for approximately $400 or $500 so that he could obtain
183 employment. He then used the birth certificate to procure by fraud a social
184 security number, and he used both documents to seek to procure a passport.
185 The latter document was necessary in order for the respondent to be able
186 to travel into and out of the United States and to aid him in obtaining
187 employment". Still, dissenting opinions write:
188 <blockquote><font color="#009900">Initially, I note that the conduct of
189 the respondent on which the Immigration Judge and the majority rely in
190 finding the respondent to be inadmissible under section 212(a)(6)(C)(i)
191 of the Act is based on his conviction for offering a United States birth
192 certificate obtained from a friend to obtain a United States passport.
193 The statute under which the respondent was convicted covers conduct that
194 is engaged in with an intent to defraud the United States. It does not
195 require, in every instance, that the conduct engaged in be engaged in with
196 the intent, or with the result, of obtaining a
\93benefit . . . under this
197 Act.
\94 The term
\93this Act
\94 in section 212(A)(6)(C)(i) refers to the Immigration
198 and Nationality Act.</font><font color="#009900"></font>
199 <p><u><font color="#009900">Thus, an individual could be convicted under
200 18 U.S.C. § 1028(a)(4) without there being any specific evidence that
201 the individual had any intent to act, or actually did act to obtain a
\93benefit
202 under this Act.
\94 Cf. section 212(a)(6)(C)(i) of the Act. There is nothing
203 in the record of conviction before us, nor in the testimony or other
204 documentation in the record before us, that indicates that the respondent
205 engaged in the conduct resulting in his conviction for possession of a
206 false identification document to obtain a
\93benefit under [the] Act.
\94</font></u><font color="#009900"></font>
207 <p><u><font color="#009900">Moreover, neither employment, nor the ability
208 to travel necessarily constitutes a
\93benefit under this Act.
\94 No matter
209 how powerful the majority may wish to make the reach of the Immigration
210 and Nationality Act, it does not extend to the constitutional rights to
211 work and to travel. As should be self-evident, an individual may be prosecuted
212 under federal criminal law for a violation of using false documents
\93to
213 defraud the United States,
\94 but not be convicted of an offense that involves
214 fraud or a material misrepresentation to obtain a
\93benefit under [the]
215 Act.
\94 As the respondent argues, he was convicted only of possession of
216 identification documents, not of using them to procure admission or any
217 other benefit under the Act. His conviction is for possessing the document
218 with the intent to defraud the United States. No more; no less.</font></u><u><font color="#009900"></font></u>
219 <p><font color="#009900">Even if the respondent
\92s testimony is considered
220 to establish that the birth certificate was used to seek to obtain a passport,
221 I would question whether seeking to obtain a passport is an act that is
222 covered by the phrase in section 212(a)(6)(C)(i) that refers to seeking
223 to procure or procuring a
\93benefit under [the] Act.
\94 Issuance of a passport
224 is an act of the United States Government that provides a citizen with
225 a document. One who is a citizen or seeks to document the status of being
226 a citizen by obtaining a passport is not seeking a
\93benefit under [the]
227 Act,
\94 as the Act applies, by definition, only to noncitizens.</font></blockquote>
228 Further, in <b>Interim Decision #3372</b>
229 <blockquote><u><font color="#009900">The principal elements of the ground
230 of excludability contained in section 212(a)(6)(C)(i) of the Act pertinent
231 to our determination are (1) fraud or (2) willfulness and (3) materiality.
232 Fraud or a willful misrepresentation may be committed by the presentation
233 of either an oral or written statement to a United States Government official.
234 Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994) (requiring that to sustain
235 a charge of fraud, it must have been perpetrated on United States Government
236 officials). Fraud requires that the respondent know the falsity of his
237 or her statement, intend to deceive the Government official, and succeed
238 in this deception</font></u><font color="#009900">. Matter of G-G-, 7 I&N
239 Dec. 161 (BIA 1956). See generally Kathleen Sullivan, When Representations
240 Cross the Line, Bender
\92s Immigration Bulletin, Vol. 1, No. 11 (Oct. 1996).</font><font color="#009900"></font>
241 <p><font color="#009900">Fraud or a willful misrepresentation is not limited
242 to
\93false testimony,
\94 which requires that the actor have made a false statement
243 under oath with the subjective intent of obtaining an immigration benefit.
244 4 Kungys v. United States, 485 U.S. 759, 780 (1988); see also Bernal v.
245 INS, 154 F.3d 1020 (9th Cir. 1998) (holding that an applicant
\92s false oral
246 statements made under oath in a question-and-answer statement before a
247 Service officer in connection with any stage of the processing of a visa
248 or in a naturalization examination constitutes
\93false testimony
\94 within
249 the meaning of 8 U.S.C. § 1101(f)(6), and citing Matter of Ngan, 10
250 I&N Dec. 725 (BIA 1964)); Phinpathya v. INS, 673 F.2d 1013, 1018-19
251 (9th Cir. 1981) (stating that the
\93term testimony does not encompass all
252 statements, or even all statements made under oath,
\94 but refers to
\93a statement
253 made by a witness under oath for the purpose of establishing proof of a
254 fact to a court or tribunal
\94), rev'd on other grounds, 464 U.S. 183 (1984).
255 False testimony under section 101(f)(6) of the Act does not apply to concealment.
256 Kungys v. United States, supra, at 780-81.</font></blockquote>
259 <font color="#000000">Burden of proof</font></h3>
261 <blockquote><i>INS Federal Register Publications - 1996</i>
262 <br><i>FEDERAL REGISTER INTERIM REGULATIONS - 1996</i>
263 <br><i>Petition to Classify Alien as Immediate Relative of a United States
264 Citizen or as a Preference Immigrant; Self-Petitioning for Certain Battered
265 or Abused Spouses and Children [61 FR 13061] [FR 16-96]</i></blockquote>
267 <blockquote><font color="#009900">A petition must be denied under the provisions
268 of section 204(c) of the Act if there is substantial and probative evidence
269 that the self-petitioner has ever attempted or conspired to enter into
270 a marriage for the purpose of evading the immigration laws. The self-petitioner
271 does not need to have received a benefit through the attempt or conspiracy.
272 He or she also need not have been convicted of, or even prosecuted for,
273 the attempt or conspiracy. Evidence of the attempt or conspiracy, however,
274 must be contained in the self-petitioner's immigration file.</font></blockquote>
275 Although this section is regarding self petitioners I'd like to make the
279 I don't believe there is substantial and probative evidence that Olga has
280 attempted or conspired to enter into a marriage for the purpose of evading
281 the immigration laws if an attempt was never made.</li>
284 It says that the petitioner does not need to have received a benefit through
285 the attempt or conspiracy implying that an attempt was made. I'm not as
286 sure about conspiracy, how to prove or disprove that.</li>
289 How do I tell whether or not such evidence is contained in the self-petitioner's
290 immigration file.</li>
293 <blockquote><font color="#009900">Section 204(g) of the Act may also apply
294 to a self-petition. It prohibits the approval of a self-petition if the
295 marriage creating the relationship to the citizen or permanent resident
296 took place while the self-petitioner was in deportation, exclusion, or
297 related proceedings, unless the self-petitioner provides clear and convincing
298 evidence that the marriage was not entered into for the purpose of obtaining
299 immigration benefits. <u>This limitation will not apply if the self-petitioner
300 has lived outside the United States for at least 2 years after the marriage.
302 "clear and convincing" standard places a heavier burden on the petitioner
303 than the "preponderance of evidence" criteria generally applicable to visa
304 petitions and self-petitions. Although there may be no proof that the marriage
305 was fraudulent, a self-petition subject to this restriction must be denied
306 if the petitioner does not provide "clear and convincing" evidence that
307 the marriage was entered into in good faith.</font></blockquote>
308 Olga has been living outside of the US for 4 years.
309 <p>Further regarding <b>Interim Decision #3086: Matter of Kahy</b>:
310 <blockquote><font color="#009900">(2) Where the record contains evidence
311 that a visa petition was previously filed seeking nonquota status for an
312 alien based on a fraudulent marriage, the burden then shifts to the petitioner
313 to prove that the alien did not seek to be accorded nonquota status based
314 on the prior marriage. Section 204(c)(1) of the Act, 8 U.S.C. § 1154(c)(1)
315 (Supp. IV 1986).</font></blockquote>
316 So does this mean, since Olga did not previously file seeking an INS benefit
317 that the burden of prove does <b>not</b> shift to the petitioner? Or can:
318 <blockquote><font color="#009900">(3) A visa petition may be denied pursuant
319 to section 204(c)(2) of the Act, 8 U.S.C. § 1154(c)(2) (Supp. IV 1986),
320 where there is evidence in the record to indicate that an alien previously
321 conspired to enter into a fraudulent marriage.</font></blockquote>
322 be construed against Olga based on a conspiracy?
323 <p>Also here <b>Interim Decision #3203: Matter of Isber</b>:
324 <blockquote><font color="#009900">Section 204(c) was amended by section
325 4(a) of the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), Pub.
326 L. No. 99-639, 100 Stat. 3537, 3543 (1986), 2/ in two ways. First, the
327 words "or has sought to be accorded," were added after the words "has previously
328 been accorded." Prior to this amendment, section 204(c) did not apply where
329 the alien had not actually been granted an immigration benefit on the basis
330 of his or her marriage, even though it was indubitably fraudulent and even
331 though the alien had sought to obtain such a benefit. <u>If, for instance,
332 the petitioner withdrew the visa petition on being confronted with evidence
333 that the marriage was a sham, the beneficiary was not thereafter barred
334 from deriving an immigration benefit from another marriage or otherwise.
335 The addition of the words "or has sought to be accorded" closed this loophole.</u>
336 There is nothing in the legislative history, however, which suggests that
337 Congress was not still referring to a "prior marriage." See H.R. Rep. No.
338 906, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5978.</font></blockquote>
339 So the loophole they speak of here is that where an action was taken to
340 obtain INS benefits. Does this imply if no action was taken then no harm
341 was done? However this appears to kill me:
342 <blockquote><font color="#009900">IMFA also amended section 204(c) to add
343 a new clause prohibiting the approval of a visa petition if "the Attorney
344 General has determined that the alien has attempted or conspired to enter
345 into a marriage for the purpose of evading the immigration laws." 100 Stat.
346 at 3543. <u>Congress thereby extended the perpetual bar of section 204(c)
347 to cases where an alien had entered, or attempted or conspired to enter,
348 into a sham marriage for the purpose of obtaining an immigration benefit,
349 but no benefit was actually sought.</u> Situations such as these could
350 result, for instance, in connection with undercover Service investigations
351 of marriage fraud rings. Again, there was no suggestion that Congress was
352 not still referring to prior marriages.</font></blockquote>
353 Unless this can be construed to only be applicable to marriage fraud rings,
354 of which I don't think you can construe Olga's single incident to a marriage
356 <p>OK, this ones a tough one:
357 <blockquote><font color="#009900">It is well established that fraud or
358 willful misrepresentation of a material fact in the procurement or attempted
359 procurement of a visa, or other documentation, must be made to an authorized
360 official of the United States Government in order for excludability under
361 section 212(a)(6)(C)(i) of the Act to be found. See Matter of D-L- &
362 A-M-, 20 I&N Dec. 3162 (BIA 1991); Matter of Shirdel, 19 I&N Dec.
363 33 (BIA 1984); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961). The record
364 contains no evidence that the applicant practiced fraud or made a willful
365 misrepresentation to a United States Government official in procuring or
366 in seeking to procure documentation. Accordingly, we find that the issue
367 at hand is whether the applicant is excludable for fraud or willful misrepresentation
368 of a material fact in seeking to procure entry into the United States.</font><font color="#009900"></font>
369 <p><font color="#009900">Prior to its amendment by section 6(a) of the
370 Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100
371 Stat. 3537, 3543-44 (effective Nov. 10, 1986) ("1986 Amendments"), and
372 later by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978
373 ("1990 Act"), section 212(a)(19) of the Act rendered excludable</font><font color="#009900"></font>
374 <p><font color="#009900">[a]ny alien who seeks to procure, or has sought
375 to procure, or has procured a visa or other documentation, or seeks to
376 enter the United States, by fraud, or by willfully misrepresenting a material
377 fact.</font><font color="#009900"></font>
378 <p><font color="#009900">Interpreting that version of the law, the Attorney
379 General held that the first clause of section 212(a)(19), relating to documents,
380 was both prospective and retrospective, but the second clause, relating
381 to entry into the United States, was prospective only. Matter of M-, 6
382 I&N Dec. 752 (BIA 1955); Matter of M-, 6 I&N Dec. 149 (BIA, A.G.
383 1954); see also Matter of Shirdel, supra, at 34-35. Consequently, an alien
384 whose fraud or material misrepresentations related to the procurement of
385 documents was forever barred from admission, unless a waiver was obtained,
386 while a fraud or misrepresentation which related to an alien's entry invalidated
387 only that entry and did not preclude a subsequent entry that was otherwise
388 regular. See Matter of Shirdel, supra. Accordingly, in Matter of Shirdel
389 this Board stated, "We closely scrutinize the factual basis for a possible
390 finding of excludability under the first clause of section 212(a)(19) for
391 fraud in the procurement of entry documents since such a finding perpetually
392 bars an alien from admission." Id. at 35; see also Matter of Healy and
393 Goodchild, 17 I&N Dec. 22 (BIA 1979).</font></blockquote>
394 This seems to suggest to me that the INS will look forward and backward
395 in time to see if you committed any documentation related fraud or have
396 procured and INS benefit based on fraud, however it will only look forward
397 in time if you are attempting to enter the US.
398 <p>Can the argument be made that "seeks to procure" really means "at this
399 current time" while "sought to procure" would mean that they had actually
400 performed the action of seeking to procure in the past and therefore would
401 need to show evidence of an action to procure?
403 <blockquote><font color="#009900">Since the fraud exclusion ground has
404 been amended, an alien is now excludable under section 212(a)(6)(C)(i)
405 of the Act not only if he "seeks" to procure but also if he "has sought
406 to procure or has procured" an entry into the United States by fraud or
407 the willful misrepresentation of a material fact. Accordingly, the provision
408 relating to seeking entry, like the provision relating to the procurement
409 of documents, is now both prospective and retrospective, and an alien who
410 is found excludable for seeking to procure entry by fraud or the willful
411 misrepresentation of a material fact is now forever barred from admission
412 to the United States unless a waiver is obtained. Therefore, we will "closely
413 scrutinize" the factual basis for a possible finding of excludability under
414 this provision, since such a finding may perpetually bar the applicant
415 from admission. See Matter of Shirdel, supra.</font></blockquote>
416 Notice here that the phrase "seeks to procure" is always related to "entry
417 into the United States". Olga is not seeking to procure entry into the
418 US based on her marriage to John rather she is seeking it based on our
420 <p>Another thought is that all of this that I've found so far directly
421 involves some INS benefit being sought based on an allegedly fraudulent
422 marriage. In my case Olga's allegedly fraudulent marriage was to somebody
423 else 4 years ago. The matter at hand is my K1 fiancé visa petition
426 <blockquote><font color="#009900">In Matter of D-L- & A-M-, supra,
427 we held that outside of the transit without visa context, an alien is not
428 excludable for seeking entry by fraud or willful misrepresentation of a
429 material fact where there is no evidence that the alien presented or intended
430 to present fraudulent documents or documents containing material misrepresentations
431 to an authorized official of the United States Government in an attempt
432 to enter on those documents.</font></blockquote>
435 <font color="#000000">Regarding Overstay</font></h3>
436 <font color="#000000">A concern of mine is that Olga had entered the US
437 on March 1995, married Michael Moffat on May 27, 1995 (thus fulfilling
438 the 90 day requirement of the K1) but was officially divorced from Michael
439 on May 3, 1996. Olga left the US on Sept 27, 1997. Therefore she was out
440 of status from May 3, 1996 - September 27, 1997 or for 1 year and 4 months.
441 Now according to Michael the INS changed laws in 1997 (Illegal Immigration
442 Reform and Immigrant Responsibility Act of 1996) and Olga had 180 days
443 of out of status condition before she would be barred from reentering the
444 US. According to what I've read so far if the alien is out of status for
445 1-180 days then there is no barring. If > 180 days but less than 1 year
446 then there is a 3 year bar (which Olga already passes as she left in 1997
447 and it's now 2001). If over 1 year then there is a 10 year bar. According
448 to the IIRIRA Section 301:</font>
449 <blockquote><font color="#009900">(3) TREATMENT OF UNLAWFUL PRESENCE BEFORE
450 EFFECTIVE DATE.</font>
451 <p><font color="#009900">In applying section 212(a)(9)(B) of the Immigration
452 and Nationality Act, as inserted by paragraph (1), no period before the
453 title III-A effective date shall be included in a period of unlawful presence
454 in the United States.</font></blockquote>
455 <font color="#000000">I believe "title III-A" refers to the effective date
456 of this act which is April 1, 1997 and that the above means that Olga's
457 past out of status condition is discarded and the clock starts ticking
458 from April 1, 1997. Therefore if Olga had left the US after November 1,
459 1997 she would have been out of status for > 180 days and therefore bared
460 from reentering the US for 3 years (which as already passed). Even if there
461 are > 180 between April 1, 1997 - September 27, 1997 I think we are still
projects / clearscm.git / blob