dismissed EB-2 NIW Case: Not Specified

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 17, 2024 InRe: 30728131 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a 
member of the professions holding an advanced degree, as well as a national interest waiver (NIW) of 
the job offer requirement attached to this classification. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Nebraska Service Center Director issued a Notice of Intent to Deny (NOID) the Form 1-140, 
Immigrant Petition for Alien Workers (petition), concluding that the marriage fraud prohibition 
applied to the Petitioner meaning no petitions may be approved on her behalf. Section 204( c) of the 
Act, 8 U.S.C. § 1154(c). After the Petitioner provided a response to the NOID, the Director decided 
the response was insufficient to overcome the indications of a previous fraudulent marriage and they 
denied the petition. 
The Petitioner bears the burden of proof to demonstrate eligibility to U.S. Citizenship and Immigration 
Services (USCIS) by a preponderance of the evidence. Section 291 of the Act; Matter of Chawathe, 
25 I&N Dec. 369, 375 (AAO 2010). We review the questions in this matter de novo. Matter of 
Christo 's Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the 
appeal. 
I. LEGAL FRAMEWORK 
As the Petitioner's eligibility for the NIW petition on the merits is not an issue within the Director 's 
decision, we will not address it here. Instead, we will evaluate the propriety of the Director's 
application of the marriage fraud prohibition under section 204( c ). 
Even if a marriage may be legally valid where it occurred, USCIS cannot approve a visa petition for a 
foreign national who attempted or conspired to enter a marriage "for the purpose of evading the 
immigration laws." Section 204(c); 8 C .F.R. § 204.2(a)(l)(ii) . To determine the existence of a 
fraudulent or sham marriage, adjudicators must consider whether the parties intended to establish a 
life together at the time they were married. Matter of P. Singh, 27 I&N Dec. 598, 601 (BIA 2019) 
(citing Matter ofLaureano, 19 I&N Dec. 1, 2-3 (BIA 1983) Matter ofMcKee, 17 I&N Dec. 332,334 
(BIA 1980)). 
To sustain a marriage fraud determination, USCIS must conclude there is "substantial and probative 
evidence" that the foreign national "has attempted or conspired to enter into a marriage for the purpose 
of evading the immigration laws." 8 C.F.R. § 204.2(a)(l)(ii). The Board of Immigration Appeals 
(Board) has clarified that evidence is substantial and probative when it establishes "that it is more than 
probably true that the marriage is fraudulent." P. Singh, 27 I&N Dec. at 607; see also Mestanek v. 
Jaddou, 93 F.4th 164, 173 (4th Cir. 2024); Iyawe v. Garland, 28 F.4th 875, 879 (8th Cir. 2022); 
Zerezghi v. USCIS, 955 F.3d 802, 816 (9th Cir. 2020) (each citing P. Singh). As the Board's language 
reflects, this standard falls between the preponderance and clear and convincing evidence standards. 
P. Singh, 27 I&N Dec. at 607 n.7. 
In P. Singh, the Board stated "any relevant evidence" could be considered in assessing marriage fraud 
and that "[i]n determining if the evidence of marriage fraud is substantial and probative, that is, 
whether it establishes that it is more than probably true that the marriage is fraudulent, the nature, 
quality, quantity, and credibility of the evidence in the record should be considered in its totality." Id. 
at 610. The Board noted this assessment may be based on either direct or circumstantial evidence. Id. 
In most circumstances, USCIS officers should not give conclusive effect to determinations made in a 
prior proceeding and instead should reach an independent conclusion based on the evidence before 
them. Matter of Tawfik, 20 I&N Dec. 166, 168 (BIA 1990). 
The Director cited to P. Singh in the denial decision and stated, "there is substantial and probative 
evidence that the marriage was entered into for the purpose of evading the immigration laws." Once 
the Director determined that substantial and probative evidence of marriage fraud was in the record 
and they notified the Petitioner, the burden shifted to her to rebut the allegation. Matter of Kahy, 
19 I&N Dec. 803, 806-07 (BIA 1988). But the Petitioner made no such effort to contest the Director's 
marriage fraud allegation. 
TT. PROCEDURAL HISTORY 
The Petitioner entered the United States inl Iof 2018 as a visitor for pleasure, received a 
six-month extension of stay until I I 9, 2019, and she did not depart the country on or before 
her new period of authorized stay. The Petitioner married her second spouse onl 1, 2019; 
two days after her extended period of authorized stay expired. When the Petitioner entered the United 
States, she was widowed. Although the Indianapolis Field Office Director initially found the evidence 
accompanying the Form I-130, Petition for Alien Relative, to be inadequate to demonstrate the death 
of the Petitioner's first spouse, subsequent evidence comported to the type of material from her home 
country to establish his passing. 
After conducting a brief investigation and performing an in-depth marriage fraud interview, the Field 
Office Director issued a NOID on the Form I-130 with the primary focus being inconsistent and 
discrepant testimony about the Petitioner's and her second spouse's life together. The NOID response 
contained a different divorce document for the Petitioner's second spouse, a different death certificate 
for her first spouse, and two utility bills from October of 2020 listing both the Petitioner's and her 
second spouse's names with the same mailing address. Absent was any response addressing the 
inconsistent and discrepant testimony provided during the in-depth interview. 
2 
Regarding the Petitioner's second spouse-the U.S. c1t1zen who filed the Form I-130 on her 
behalf-the Field Office Director concluded that the foreign divorce document he provided to 
establish he was free to marry the Petitioner was not valid. Because this divorce decree was not valid, 
the Field Office Director concluded that the Petitioner's second spouse could not properly file the 
Form I-13 0 on her behalf 
But that was only the beginning of the reasons the Field Office Director decided an approval of the 
Form I-130 was unacceptable. The Field Office Director reviewed the NOID response and issued a 
decision determining that the marriage between the Petitioner and her U.S. citizen spouse was not a 
bona fide one. The Field Office Director also concluded that the couple provided false information 
with the petition and to the interviewing officer. 
Other adverse elements the Field Office Director noted in the denial included the U.S. citizen spouse's 
failure to address the anomalous deficiencies within his divorce decree, while also indicating that 
documentation was counterfeit and not issued by the proper authorities in his home country. And 
finally, the address he confirmed during his March 19, 2021 interview was the same address his alleged 
former spouse used when she completed the naturalization process less than a month earlier. But he 
offered no explanation why they would use the same address within one month of each other when he 
allegedly petitioned for a divorce from her in I I of 2018. Again, the end result was the 
decision that the Petitioner's marriage was not bona fide. 
After the Petitioner filed the NIW petition, the Director issued a NOID informing her that the record 
contained substantial and probative evidence that the marriage to her second spouse was entered into 
for the purpose of evading the immigration laws of the United States. The Director gave the Petitioner 
the required period to respond to the NOID with evidence that might demonstrate the marriage in 
question was bona fide. In response to this NOID, the Petitioner failed to provide evidence or 
arguments that addressed the bona fides of her marriage to the U.S. citizen. She instead argued that 
admissibility issues were not properly considered within the adjudication of a Form I-140. The 
Director found the Petitioner's NOID response to be lacking and determined it did not overcome the 
identified substantial and probative evidence of marriage fraud. 1 
III. ANALYSIS 
The authorities who adjudicated the Form I-130 and the Form I-140 each discussed the evidence in 
the record relating to their individual determinations that the Petitioner here engaged in marriage fraud. 
We incorporate the discussions of that evidence here by reference as it is unnecessary that we rehash 
what each piece of evidence does or does not demonstrate. That said, although we may not discuss 
every document within the record, we have reviewed and considered each one. 
1 We acknowledge one error in the Director's denial, specifically concerning the Petitioner's submission of evidence 
regarding her first spouse's death, that the Nebraska Service Center Director stated was either fraudulent or was not 
acceptable material from her home country to establish her first spouse's passing. We withdraw the p01iion of the 
Director's denial solely related to the Petitioner's documentation to establish her eligibility to marry in the United States, 
as it was only her second spouse's-the U.S. citizen's-divorce decree that was deemed invalid. Considering the volume 
of the remaining evidence in the record that led the Director to conclude the Petitioner had entered into a fraudulent 
marriage to evade U.S. immigration laws, this error does not appear to have significantly influenced the Director's 
dete1mination that there was substantial and probative evidence of marriage fraud. 
3 
Within the appeal, the Petitioner focuses on whether the Form I-140' s adjudication was a discretionary 
determination and-as she argued in the Form I-140 NOID response-whether admissibility issues 
are properly considered when adjudicating this petition. But those topics are not relevant to this 
appeal. The Director's sole basis for denying the petition was that the Petitioner's previous efforts to 
circumvent U.S. immigration law by entering a fraudulent marriage precluded the petition's approval. 
What the law requires, and what the Director performed, is an evaluation of all the evidence in the 
record to make an independent determination of whether the record contains substantial and probative 
evidence that the Petitioner has attempted or conspired to enter into a marriage for the purpose of 
evading the immigration laws. Therefore, the Petitioner's appellate arguments relating to a 
discretionary determination and admissibility issues are misplaced and inapposite. 
The Petitioner concludes the appeal brief by asserting that section 204( c) does not negate the need to 
assess the merits of her Form I-140 eligibility claims. However, it is evident that she misinterprets the 
statute's provisions, which explicitly state that no petition may receive approval after USCIS 
determines section 204( c) is applicable to her case. Therefore, conducting an evaluation of her NIW 
petition's merits would be imprudent in terms of agency resource allocation, as approval of the petition 
would be precluded upon the determination of section 204(c) applicability. "[T]he consequence of 
engaging in marriage fraud under section 204( c) of the Act is a permanent bar to the approval of any 
future visa petition .... " P. Singh, 27 I&N Dec. at 607. 
The Petitioner has chosen not to contest the basis of the Director's denial but instead has opted to 
challenge the adverse decision on procedural grounds. In doing so, she has foreclosed any future 
attempts at a positive outcome for this petition. 
Even setting aside our above analysis regarding the Petitioner's procedural shortcomings on appeal, 
our independent review of the entire record of proceeding leads us to conclude that substantial and 
probative evidence exists to demonstrate that it is more than probably true that Petitioner's marriage 
to her second spouse-the U.S. citizen who filed the Form I-130-was fraudulent and that she 
attempted or conspired to enter a marriage "for the purpose of evading the immigration laws" in 
violation oflaw. Section 204(c); 8 C.F.R. § 204.2(a)(l)(ii); Matter ofPak, 28 I&NDec. 113,118 (BIA 
2020) (citing P. Singh, 27 I&N Dec. at 607). 
IV. CONCLUSION 
The appeal will be dismissed for the above stated reasons, with each considered an independent and 
alternative basis for the decision. In visa petition proceedings, it is a petitioner's burden to establish 
eligibility for the immigration benefit sought. The Petitioner has not met that burden. 
ORDER: The appeal is dismissed. 
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