Olga remained in the US, obtained a job (Michael had helped her obtain a green card) and an apartment. Near the end of 1996 Olga met Jon Miller and they dated for a while. They married January 18, 1997 for a very brief time. Shortly thereafter Olga felt that she did not love Jon and could not see a lifetime of togetherness with him so she filed for divorce. The divorce was finalized by July 14, 1997. At no time did Olga file for any INS benefits from her marriage to Jon Miller.
After divorcing Jon, Michael, Olga's first ex husband, contacted Olga. He was concerned that Olga was overstaying her welcome to the US. He had consulted with an immigration lawyer who informed him that due to a change in INS laws as of April 1997, Olga had 180 days to leave the US and she would be able to later return to the US without penalty. Michael urged Olga to consider leaving the US and offered to help her go to Hong Kong on a tourist visa. Olga left the US on September 27, 1997 and stayed with Michael for 3 months in Hong Kong. When her Hong Kong tourist visa expired she returned to Kiev, Ukraine.
I met Olga in July, 2000. I returned in September, 2000 we got engaged and I started the K1 Fiancé visa process. I visited her again in December, 2000 and we were approved in January 2001. We had an interview date of April 23, 2001 in Warsaw. While at the interview the consular questioned Olga's exit from the US, requiring us to obtain additional documentation of her departure from the US and entry from Hong Kong to Kiev, Ukraine. We provided that documentation.
Next, in explaining the sequence of events in US the supervising consular grew suspicious about Olga's second marriage to Jon Miller. He voiced his concern that the marriage was a sham marriage intended to fraudulently obtain immigration benefits and decided to send our application back to the INS in Vienna for "administrative review".
In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.He bases this on the record which shows that Ms. Fedoryaka was previously in the US and she had two marriages to US citizens of short duration. However the record shows no evidence that Ms. Fedoryaka had sought to procure a visa or any other benefit of the INA. It is devoid of any application for any benefit from her second marriage to Mr. Miller. The record shows an application for Adjustment of Status from her first marriage to Mr. Moffat. It also shows a retraction of the invitation for the Adjustment of Status interview by Mr. Moffat due to the disolution of the marriage. So the consular's decision to return this petition for administrative review seems to be based merely on supicion of fraudulent activity.
The approval of a petition is usually considered to be prima facie evidence that the alien beneficiary has met the petition requirements. Unless a petition has been approved in error, the petition can only be returned if the consular officer knows, or has reason to believe, that the beneficiary is not entitled to status. Knowledge and reason to believe must be based upon evidence that the INS did not have available at the time of adjudication. This evidence often arises as a result of or during the consular officer’s interview. Reason to believe must be more than mere conjecture or speculation —there must exist probability, supported by evidence that the alien is not entitled to status.And 9 FAM 42.43 N2.2 Cases of Sham Marriages:
INS has minimum evidentiary standards that must be established before revocation proceedings may begin. These minimum evidentiary standards are:(1) A written statement from one or both of the parties to the marriage or documentary evidence that money exchanged hands; or
(2) Factual evidence developed by the consular officer that would convince a reasonable person that the marriage was a sham marriage entered into to evade immigration laws.
In order to find an alien ineligible under INA 212(a)(6)(C)(i), it must be determined that:I submit that no such misrepresentation was made by Ms. Fedoryaka. Indeed our petition disclosed both marriages and included their divorce decrees. The petition did not misrepresent nor conceal them. Further Ms. Fedoryaka did not use fraud to procure a visa or benefit under the INA with respect to her marriage to Mr. Miller, in fact she sought nothing as the record shows.
(1) There has been a misrepresentation made by the applicant [see 9 FAM 40.63 N4 ];
(2) The misrepresentation was willfully made [see 9 FAM 40.63 N5 ]; and
(3) The fact misrepresented is material [see 9 FAM 40.63 N6 ], or
(4) The alien uses fraud [see 9 FAM 40.63 N3 ] to procure a visa or other documentation [see 9 FAM 40.63 N7 ], to receive a benefit under the INA [see 9 FAM 40.63 N7 ].
a. The fact that Congress used the terms "fraud" and "willfully misrepresenting a material fact" in the alternative indicates an intent to set a lower standard than is required in making a finding of what is known in the law as representation of a material fact with knowledge of its falsity and with the intent fraud. The distinction between the two terms is not readily apparent. For the purposes of this section, the Board of Immigration Appeals has determined that a finding of "fraud" requires a determination that the alien made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer.Again I submit to you that at no time did Ms. Fedoryaka make a false representation with the intent to deceive the consular.
A petition must be denied under the provisions of section 204(c) of the Act if there is substantial and probative evidence that the self-petitioner has ever attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. The self-petitioner does not need to have received a benefit through the attempt or conspiracy. He or she also need not have been convicted of, or even prosecuted for, the attempt or conspiracy. Evidence of the attempt or conspiracy, however, must be contained in the self-petitioner's immigration file.yet, even though Ms. Fedoryaka never filed as a self-petitioner, the above can be viewed as a requirement for a finding that fraud had or had not occurred. The record is void of any evidence of the attempt or conspiracy to commit marriage fraud.
(2) Where the record contains evidence that a visa petition was previously filed seeking nonquota status for an alien based on a fraudulent marriage, the burden then shifts to the petitioner to prove that the alien did not seek to be accorded nonquota status based on the prior marriage. Section 204(c)(1) of the Act, 8 U.S.C. § 1154(c)(1) (Supp. IV 1986).The record does not show that a visa petition was previously filed. Also,
(3) A visa petition may be denied pursuant to section 204(c)(2) of the Act, 8 U.S.C. § 1154(c)(2) (Supp. IV 1986), where there is evidence in the record to indicate that an alien previously conspired to enter into a fraudulent marriage.Again, the record does not show evidence that Ms. Fedoryaka conspired to enter into a fraudulent marriage.
It is well established that fraud or willful misrepresentation of a material fact in the procurement or attempted procurement of a visa, or other documentation, must be made to an authorized official of the United States Government in order for excludability under section 212(a)(6)(C)(i) of the Act to be found. See Matter of D-L- & A-M-, 20 I&N Dec. 3162 (BIA 1991); Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984); Matter of L-L-, 9 I&N Dec. 324 (BIA 1961). The record contains no evidence that the applicant practiced fraud or made a willful misrepresentation to a United States Government official in procuring or in seeking to procure documentation. Accordingly, we find that the issue at hand is whether the applicant is excludable for fraud or willful misrepresentation of a material fact in seeking to procure entry into the United States.The record does not show that Ms. Fedoryaka attempted to fraud or willfully misrepresent a material fact in the procurement or attempted procurement of a visa, or other documentation to an authorized official of the United States Government with respect to her 1997 marriage to Mr. Miller.
The Service has previously determined that a variety of evidence may be used to establish a good-faith marriage, and a self-petitioner should submit the best evidence available. Evidence of good faith at the time of marriage may include, but is not limited to, proof that one spouse has been listed as the other's spouse on insurance policies, property leases, income tax forms, or bank accounts; and testimony or other evidence regarding courtship, wedding ceremony, shared residence and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other types of readily available evidence might include the birth certificates of children born to the relationship; police, medical, or court documents providing information about the relationship; and affidavits of persons with personal knowledge of the relationship. Self-petitioners who submit affidavits are encouraged to submit affidavits from more than one person. Other types of evidence may also be submitted; the Service will consider any relevant credible evidence.However Ms. Fedoryaka's marriage was extremely short as she quickly realized that the marriage would not last. As such there is little if any of the normal records and evidence as required above. However:
The Act does not define a "good-faith" marriage or provide guidelines for evaluating the bona fides of a marriage; however, persons applying for immigration benefits based on a marriage are generally required to establish that they entered into the marriage in good faith, and a significant body of case law has developed concerning the interpretation of this requirement. It has long been held that a marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, cannot be recognized as enabling a spouse to obtain immigration benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be denied, however, solely because the spouses are not living together and the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA 1980). The key factor in determining whether a person entered into a marriage in good faith is whether he or she intended to establish a life together with the spouse at the time of the marriage. The person's conduct after marriage is relevant only to the extent that it bears upon his or her subjective state of mind at the time of the marriage. Separation from the other spouse, even shortly after the marriage took place, does not prove, by itself, that a marriage was not entered into in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).