Marriage Fraud Prior to May 1998 In a May 14, 1997 Department of State (DOS) cable, the DOS instructs consular posts on handling "questionable" marriage cases. The cable outlines a familiar scenario at many immigrant visa consular posts: A U.S. citizen attempts to file an I-130 on behalf of a spouse with whom s/he cannot communicate in a common language, following a remarkably precipitous courtship and marriage. Often, the only real bond between the newlyweds is a U.S. based relative of the beneficiary, who may have financed the petitioners first trip abroad. The post forwards such cases to INS as not clearly approvable, only to have them sent back approved, or to receive a second petition some months later, filed with an INS office in the United States. The cable advises the consular post that it is extremely important that a post clearly and thoroughly document the fraud indicators which prompted the post to send the petition to INS. Posts which receive approved I-130s based on marriages which post discovers to be fraudulent should continue to return these petitions to INS for reconsideration. Copies of previous communications to INS on the case, such as memos sent with a not clearly approvable petition submitted to post by the same petitioner on behalf of the same beneficiary, should accompany the request for review and revocation. Posts were also reminded that a finding cannot be made based on a sham marriage unless and until the petition has been revoked or withdrawn. If INS reaffirms a petition which was returned, or approved a petition which a Consular officer (ConOff) returned to INS as not clearly approvable, then post should process the case to conclusion, unless ConOff has obtained additional factual evidence which was not known at the ConOff first returned or referred the petition to INS, and which supports ConOff's belief that the alien is not entitled to status. In cases where a post has no additional evidence but nonetheless disagrees with INS's decision to reaffirm the returned petition or to approve a not clearly approvable petition, ConOff must send the entire case to the Department for review and discussion with INS/HQS. Obviously, this step should not be taken merely because the officer is suspicious of the marriage, but should be reserved for cases where the facts conclusively support a finding of fraud and the INS approved or reaffirmed the petition in contravention of the facts. © The Law Office of Sheela Murthy, P.C.
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