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 John Miller and they dated for a while. They married around April of 1997 for a very brief time. Shortly thereafter Olga felt that she did not love John 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 John Miller.
After divorcing John, 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. 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 John 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".
.. One must also remember that fraud may take two basic forms. First, the marriage may be one in name only, for the sole purpose of securing immigration benefits; often money is exchanged in these cases. Second, the immigrant may feign interest in the U.S. citizen or LPR spouse, only to abandon him or her after the marriage. In either type of fraud, the immigrant may be a woman or a man.No money was exchanged and Olga never attempted to secure an immigration benefit.
According the the I-129F form itself, it states:
What are the penalties for committing marriage fraud or submitting false information or both?Again Olga never applied for any INS benefit or visa so she did not actually evade any provision of the immigration laws nor did she falsify a material fact, make a false statement or make use of a false document. She was never found guilty under Title 18 of the USC Section 100 nor fined nor imprisoned.Title 18, United States Code, Section 100 states that whoever willfully and knowingly falsifies a material fact, makes a false statement, or makes use of a false document will be fined up to $10,000 or imprisoned up to five years, or both.
Title 8, United States Code, Section 1325 states that any individual who knowingly enters into a marriage contract for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years, or fined not more than $250,000, or both.
This part looks bad:
Notwithstanding the provisions of subsection (b) no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative 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 or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.Again the phrase "conspired to enter into a marriage for the purposes of evading the immigration laws". From my understanding conspired means "to join in a secret agreement to do an unlawful or wrongful act or an act which becomes unlawful as a result of the secret agreement" and could be construed to mean that Olga intended to try. But how do you prove or disprove such intent?
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.Since Olga's marriage was so short all of this will be hard to prove. She did get pregnant and have an abortion. Not sure if this would help.
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).Olga said to me that she had hoped that her marriage to John were work out but that she realized that she did not love this man and that the marriage would not result in a lifetime together so she decided to divorce and not attempt to file for any INS benefits.
In Interim Decision #3380:
It is long settled that inadmissibility for immigration fraud does not ensue from the mere purchase of fraudulent documents, absent an attempt to fraudulently use the document for immigration purposes. Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975); Matter of Sarkissian, 10 I&N Dec. 109 (BIA 1962); Matter of Box, 10 I&N Dec. 87 (BIA 1962); accord Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991); cf. Matter of Serna, supra (stating that mere possession is not a crime involving moral turpitude).In this interim decision the respondent "Obviously, the respondent admits to procuring one document in the form of a fraudulent birth certificate. The respondent testified that he purchased the birth certificate in Los Angeles, California, for approximately $400 or $500 so that he could obtain employment. He then used the birth certificate to procure by fraud a social security number, and he used both documents to seek to procure a passport. The latter document was necessary in order for the respondent to be able to travel into and out of the United States and to aid him in obtaining employment". Still, dissenting opinions write:
Initially, I note that the conduct of the respondent on which the Immigration Judge and the majority rely in finding the respondent to be inadmissible under section 212(a)(6)(C)(i) of the Act is based on his conviction for offering a United States birth certificate obtained from a friend to obtain a United States passport. The statute under which the respondent was convicted covers conduct that is engaged in with an intent to defraud the United States. It does not require, in every instance, that the conduct engaged in be engaged in with the intent, or with the result, of obtaining a “benefit . . . under this Act.” The term “this Act” in section 212(A)(6)(C)(i) refers to the Immigration and Nationality Act.Further, in Interim Decision #3372Thus, an individual could be convicted under 18 U.S.C. § 1028(a)(4) without there being any specific evidence that the individual had any intent to act, or actually did act to obtain a “benefit under this Act.” Cf. section 212(a)(6)(C)(i) of the Act. There is nothing in the record of conviction before us, nor in the testimony or other documentation in the record before us, that indicates that the respondent engaged in the conduct resulting in his conviction for possession of a false identification document to obtain a “benefit under [the] Act.”
Moreover, neither employment, nor the ability to travel necessarily constitutes a “benefit under this Act.” No matter how powerful the majority may wish to make the reach of the Immigration and Nationality Act, it does not extend to the constitutional rights to work and to travel. As should be self-evident, an individual may be prosecuted under federal criminal law for a violation of using false documents “to defraud the United States,” but not be convicted of an offense that involves fraud or a material misrepresentation to obtain a “benefit under [the] Act.” As the respondent argues, he was convicted only of possession of identification documents, not of using them to procure admission or any other benefit under the Act. His conviction is for possessing the document with the intent to defraud the United States. No more; no less.
Even if the respondent’s testimony is considered to establish that the birth certificate was used to seek to obtain a passport, I would question whether seeking to obtain a passport is an act that is covered by the phrase in section 212(a)(6)(C)(i) that refers to seeking to procure or procuring a “benefit under [the] Act.” Issuance of a passport is an act of the United States Government that provides a citizen with a document. One who is a citizen or seeks to document the status of being a citizen by obtaining a passport is not seeking a “benefit under [the] Act,” as the Act applies, by definition, only to noncitizens.
The principal elements of the ground of excludability contained in section 212(a)(6)(C)(i) of the Act pertinent to our determination are (1) fraud or (2) willfulness and (3) materiality. Fraud or a willful misrepresentation may be committed by the presentation of either an oral or written statement to a United States Government official. Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994) (requiring that to sustain a charge of fraud, it must have been perpetrated on United States Government officials). Fraud requires that the respondent know the falsity of his or her statement, intend to deceive the Government official, and succeed in this deception. Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). See generally Kathleen Sullivan, When Representations Cross the Line, Bender’s Immigration Bulletin, Vol. 1, No. 11 (Oct. 1996).Fraud or a willful misrepresentation is not limited to “false testimony,” which requires that the actor have made a false statement under oath with the subjective intent of obtaining an immigration benefit. 4 Kungys v. United States, 485 U.S. 759, 780 (1988); see also Bernal v. INS, 154 F.3d 1020 (9th Cir. 1998) (holding that an applicant’s false oral statements made under oath in a question-and-answer statement before a Service officer in connection with any stage of the processing of a visa or in a naturalization examination constitutes “false testimony” within the meaning of 8 U.S.C. § 1101(f)(6), and citing Matter of Ngan, 10 I&N Dec. 725 (BIA 1964)); Phinpathya v. INS, 673 F.2d 1013, 1018-19 (9th Cir. 1981) (stating that the “term testimony does not encompass all statements, or even all statements made under oath,” but refers to “a statement made by a witness under oath for the purpose of establishing proof of a fact to a court or tribunal”), rev'd on other grounds, 464 U.S. 183 (1984). False testimony under section 101(f)(6) of the Act does not apply to concealment. Kungys v. United States, supra, at 780-81.
INS Federal Register Publications - 1996
FEDERAL REGISTER INTERIM REGULATIONS - 1996
Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant; Self-Petitioning for Certain Battered or Abused Spouses and Children [61 FR 13061] [FR 16-96]
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.Although this section is regarding self petitioners I'd like to make the following points:
Section 204(g) of the Act may also apply to a self-petition. It prohibits the approval of a self-petition if the marriage creating the relationship to the citizen or permanent resident took place while the self-petitioner was in deportation, exclusion, or related proceedings, unless the self-petitioner provides clear and convincing evidence that the marriage was not entered into for the purpose of obtaining immigration benefits. This limitation will not apply if the self-petitioner has lived outside the United States for at least 2 years after the marriage. The "clear and convincing" standard places a heavier burden on the petitioner than the "preponderance of evidence" criteria generally applicable to visa petitions and self-petitions. Although there may be no proof that the marriage was fraudulent, a self-petition subject to this restriction must be denied if the petitioner does not provide "clear and convincing" evidence that the marriage was entered into in good faith.Olga has been living outside of the US for 4 years.
Further regarding Interim Decision #3086: Matter of Kahy:
(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).So does this mean, since Olga did not previously file seeking an INS benefit that the burden of prove does not shift to the petitioner? Or can:
(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.be construed against Olga based on a conspiracy?
Also here Interim Decision #3203: Matter of Isber:
Section 204(c) was amended by section 4(a) of the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), Pub. L. No. 99-639, 100 Stat. 3537, 3543 (1986), 2/ in two ways. First, the words "or has sought to be accorded," were added after the words "has previously been accorded." Prior to this amendment, section 204(c) did not apply where the alien had not actually been granted an immigration benefit on the basis of his or her marriage, even though it was indubitably fraudulent and even though the alien had sought to obtain such a benefit. If, for instance, the petitioner withdrew the visa petition on being confronted with evidence that the marriage was a sham, the beneficiary was not thereafter barred from deriving an immigration benefit from another marriage or otherwise. The addition of the words "or has sought to be accorded" closed this loophole. There is nothing in the legislative history, however, which suggests that Congress was not still referring to a "prior marriage." See H.R. Rep. No. 906, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 5978.So the loophole they speak of here is that where an action was taken to obtain INS benefits. Does this imply if no action was taken then no harm was done? However this appears to kill me:
IMFA also amended section 204(c) to add a new clause prohibiting the approval of a visa petition if "the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws." 100 Stat. at 3543. Congress thereby extended the perpetual bar of section 204(c) to cases where an alien had entered, or attempted or conspired to enter, into a sham marriage for the purpose of obtaining an immigration benefit, but no benefit was actually sought. Situations such as these could result, for instance, in connection with undercover Service investigations of marriage fraud rings. Again, there was no suggestion that Congress was not still referring to prior marriages.Unless this can be construed to only be applicable to marriage fraud rings, of which I don't think you can construe Olga's single incident to a marriage fraud ring.
OK, this ones a tough one:
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.This seems to suggest to me that the INS will look forward and backward in time to see if you committed any documentation related fraud or have procured and INS benefit based on fraud, however it will only look forward in time if you are attempting to enter the US.Prior to its amendment by section 6(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, 3543-44 (effective Nov. 10, 1986) ("1986 Amendments"), and later by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 ("1990 Act"), section 212(a)(19) of the Act rendered excludable
[a]ny alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact.
Interpreting that version of the law, the Attorney General held that the first clause of section 212(a)(19), relating to documents, was both prospective and retrospective, but the second clause, relating to entry into the United States, was prospective only. Matter of M-, 6 I&N Dec. 752 (BIA 1955); Matter of M-, 6 I&N Dec. 149 (BIA, A.G. 1954); see also Matter of Shirdel, supra, at 34-35. Consequently, an alien whose fraud or material misrepresentations related to the procurement of documents was forever barred from admission, unless a waiver was obtained, while a fraud or misrepresentation which related to an alien's entry invalidated only that entry and did not preclude a subsequent entry that was otherwise regular. See Matter of Shirdel, supra. Accordingly, in Matter of Shirdel this Board stated, "We closely scrutinize the factual basis for a possible finding of excludability under the first clause of section 212(a)(19) for fraud in the procurement of entry documents since such a finding perpetually bars an alien from admission." Id. at 35; see also Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979).
Can the argument be made that "seeks to procure" really means "at this current time" while "sought to procure" would mean that they had actually performed the action of seeking to procure in the past and therefore would need to show evidence of an action to procure?
Also:
Since the fraud exclusion ground has been amended, an alien is now excludable under section 212(a)(6)(C)(i) of the Act not only if he "seeks" to procure but also if he "has sought to procure or has procured" an entry into the United States by fraud or the willful misrepresentation of a material fact. Accordingly, the provision relating to seeking entry, like the provision relating to the procurement of documents, is now both prospective and retrospective, and an alien who is found excludable for seeking to procure entry by fraud or the willful misrepresentation of a material fact is now forever barred from admission to the United States unless a waiver is obtained. Therefore, we will "closely scrutinize" the factual basis for a possible finding of excludability under this provision, since such a finding may perpetually bar the applicant from admission. See Matter of Shirdel, supra.Notice here that the phrase "seeks to procure" is always related to "entry into the United States". Olga is not seeking to procure entry into the US based on her marriage to John rather she is seeking it based on our K1.
Another thought is that all of this that I've found so far directly involves some INS benefit being sought based on an allegedly fraudulent marriage. In my case Olga's allegedly fraudulent marriage was to somebody else 4 years ago. The matter at hand is my K1 fiancé visa petition and I am not John.
Further:
In Matter of D-L- & A-M-, supra, we held that outside of the transit without visa context, an alien is not excludable for seeking entry by fraud or willful misrepresentation of a material fact where there is no evidence that the alien presented or intended to present fraudulent documents or documents containing material misrepresentations to an authorized official of the United States Government in an attempt to enter on those documents.
(3) TREATMENT OF UNLAWFUL PRESENCE BEFORE EFFECTIVE DATE.I believe "title III-A" refers to the effective date of this act which is April 1, 1997 and that the above means that Olga's past out of status condition is discarded and the clock starts ticking from April 1, 1997. Therefore if Olga had left the US after November 1, 1997 she would have been out of status for > 180 days and therefore bared from reentering the US for 3 years (which as already passed). Even if there are > 180 between April 1, 1997 - September 27, 1997 I think we are still OK.In applying section 212(a)(9)(B) of the Immigration and Nationality Act, as inserted by paragraph (1), no period before the title III-A effective date shall be included in a period of unlawful presence in the United States.