dismissed EB-3 Case: Telecommunications

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
%r. 
FILE: Office: VERMONT SERVICE CENTER Date: 2 4 2001 
- 
EAC 04 031 50305 
PETITION: Immigrant petition for Alien Worker as an Other, Unskilled Worker pursuant to section 203(b)(3) of 
the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: The immigrant visa petition was denied by the Director, Vermont Service Center. The matter is 
now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a telecommunications service. It seeks to employ the beneficiary permanently in the United 
States as an installation technician. As required by statute, the petition is accompanied by a Form ETA 750, 
Application for Alien Employment Certification, approved by the U. S. Department of Labor. On November 
10,2004, the director denied the petition based upon the determination that the beneficiary is ineligible for the 
classification sought based on the beneficiary's fraudulent marriage to a United States citizen and denied the 
petition pursuant to section 204(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1154(c). The 
director also determined that based upon the evidence presented, the beneficiary did not have the qualifying 
experience listed on the Form ETA-750 for the offered position. 
Section 204 of the Act governs the procedures for granting immigrant status. Section 204(c) of the Act states: 
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 . . . 
[the Director] to have been entered into for the purpose of evading the immigration laws or 
(2) . . . [the Director] has determined that the alien has attempted or conspired to enter into a 
marriage for the purpose of evading the immigration laws. 
The regulation 8 C.F.R. $ 204.2(a)(l)(ii) states in pertinent part: 
Fraudulent marriage prohibition. Section 1040 of the Act prohibits the approval of a visa 
petition filed on behalf of an alien who has attempted or conspired to enter into a marriage 
for the purpose of evading the immigration laws. The Director will deny a petition for 
immigrant visa classification filed on behalf of any alien whom there is substantial and 
probative evidence of such an attempt or conspiracy, regardless of whether that alien 
received a benefit through the attempt or conspiracy. Although it is not necessary that the 
alien have been convicted of, or even prosecuted for, the attempt or conspiracy, the 
evidence of the attempt or conspiracy must be contained in the alien's file. 
Section 2 12(a)(6)(c)(i) of the Act states: 
[Misrepresentation] 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. 
Section 203(b)(3)(A)(iii) of the Act, 8 U.S.C. $ 1153(b)(3)(A)(iii), provides for the granting of preference 
classification to qualified immigrants who are capable, at the time of petitioning for classification under this 
paragraph, of performing unskilled labor, not of a temporary or seasonal nature for which qualified workers 
are unavailable. 
The record shows that the appeal is properly filed, timely and makes a specific allegation of error in law or 
fact. The procedural history in this case is documented by the record and incorporated into the decision. 
Further elaboration of the procedural history will be made only as necessary. 
On appeal, counsel submits a legal brief and additional evidence. 
The 1-140 employment based petition was filed on November 7, 2003. Accompanying the petition was the 
original Form ETA 750, Application for Alien Employment Certification, approved by the U.S. Department 
of Labor; the annual report for the petitioner dated 2002; and, a job reference dated March 25, 2001 stating 
that the beneficiary was employed by Telecom Technology, as a technician in the Network System and 
Telephony from January 28, 1994 to May 15, 1998 in Brazil (the job reference had an incomplete address 
section). 
The director issued a notice of intent to deny the petition on August 4, 2004. The director found that the 
beneficiary was ineligible for the classification sought based on the beneficiary's fraudulent marriage to a 
United States citizen and denied the petition approval pursuant to Section 204(c) of the Act, 8 U.S.C. 
5 1154(c). The director also determined that based upon the evidence presented, the beneficiary did not have 
the qualifying experience listed on the Form ETA-750 for the offered position. 
In response to the notice counsel submitted copies of the following documents: an explanatory letter dated 
September 2, 2004; an affidavit from the beneficiary attested September 1, 2004; a "no record of marriage 
certification" for the period January 1, 1994 to December 3 1, 1994 from the County of Nassau, State of New 
York; the case precedents of Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976) 
I&N Dec. 152 (BIA 1977); a certificate of marriage between the beneficiary and 
April 9, 2001, that occurred at Marlborough, ~assachusetts; certificates of birth for the children of the 
beneficiary and and the personal U.S. federal income tax returns, form 1040, for the 
beneficiary and spouse for the years 2000,200 1,2002 and 2003. 
The director denied the petition on November 10, 2004 based upon the determination that the beneficiary was 
ineligible for the classification sought based on the beneficiary's fraudulent marriage to a United States 
citizen and denied the petition approval pursuant to Section 204(c) of the Act, 8 U.S.C. 5 1154(c). The 
director also determined that based upon the evidence presented, the beneficiary did not have the qualifying 
experience listed on the Form ETA-750 for the offered position. 
Prior to the filing of the above employment-based petition, there was another immigrant petition filed for the 
beneficiary alien by his putative United States citizen (USC) wife.' The Form 1-130 marriage based petition 
was filed on January 3, 1995. The signed petition was denied since the alien and his spouse did not appear for 
the necessary adjustment interview that is part of the process leading to the approval and issuance of 
permanent residency status. 
Counsel submitted a Form I-290B appeal in this matter. In the section reserved for the basis of the appeal, 
counsel asserts in pertinent part that the marriage to United States citizen never took 
although evidence of the reputed marriage was used by the beneficiary to support a prior marriage based petition. 
Therefore, counsel asserts that in the absence of an actual valid marriage, section 204(c) is inapplicable, and he 
requests that the denial of the beneficiary's adjustment application be re-opened along with the denial of the 1-140 
petition. 
The occurrence of this marriage is now denied by the beneficiary in the petitioner's employment based 
petition. 
Page 4 
In the prior marria e based etition, the signed Form G-325A submitted by the beneficiary identified United 
States citizen 
 as his spouse. The marriage based immigrant petition is in the record of 
proceeding of this case. The record contains a marriage certificate from the Town of North Hempstead, 
County of Nassau, State of New York stating that the beneficiary was married to a United 
States citizen on December 12, 1994. 
On December 9,2004, counsel submitted a brief in the matter and additional evidence mentioned below. 
Counsel asserts that since the beneficiary's asserted marriage to ever took place, that the 
Director's determination of marriage fraud based upon a prior marriage to in the absence of an 
actual valid marriage, section 204(c) is inapplicable. At the time the Director made the decision on November 
10, 2004, the record of proceeding evidenced that the beneficiary was married to a United 
States citizen on December 12, 1994. According to a marriage certificate submitted into evidence in the 
subject employment based petition matter, the beneficiary later married 
 on April 9, 
2001. No evidence was submitted that the beneficiary ever divorced 
According to the record of proceeding, at the time of the director's decision in this matter, there was evidence 
of a marriage to a United States citizen, and, a prior (to the subsequent and current 
employment based petition) marriage based immigrant petition submitted on behalf of the alien by his 
- - 
putative spouse, - 
- 
The beneficiary failed to disclose this prior petition in the present employment based petition and adjustment 
application. On the present Form 1-485 prepared by counsel and submitted by the beneficiary, Part 3 on that 
form, states "Have you [the beneficiary] ever applied for permanent resident status in the U.S.?" This question 
is answered "No" on the employment based adjustment application prepared under penalty of perjury and 
signed by the alien beneficiary on October 30,2003. 
Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation of the reliability and 
sufficiency of the remaining evidence offered in support of the visa petition. Matter of Ho, 19 I&N Dec. 582, 
591 (BIA 1988). 
As mentioned above, it is undisputed that on the date of the director's decision to deny the present petition, 
the record of proceeding contained document 
 ow that the beneficiary had been married since 
December 12, 1994 to a United States citizen, 
 The record contains a marriage certificate from 
the Town of North Hempstead, County of Nassau, State of New York stating that the beneficiary was married 
to -, a United States citizen on December 12, 1994. 
In support of the appeal, the beneficiary prepared an affidavit. In this statement, the beneficiary contends that, 
although he paid for the preparation of the marriage based petition, he later discovered he was misled by the 
individual who prepared the petition. This individual was known to the beneficiary only as 
 'a well 
known lady in the community." According to the beneficiary's account, he believed that 
submitting an amnesty application for him. We find this explanation to be not credible. 
was 
The contents of the marriage based petition and adjustment application (G-235A) contain beneficiary's 
personal data that is the same or similar information also contained in the employment based petition and 
adjustment application. The alien's birth certificate is attached to both. All the documents submitted to CIS 
bear his signature. We find the statements that the alien beneficiary was a non-participant in the preparation 
and submission of all the documents mentioned above not credible. Matter of Ho, 19 I&N Dec. 582, 591 
(BIA 1988) states: "Doubt cast on any aspect of the petitioner's proof may, of course, lead to a reevaluation 
of the reliability and sufficiency of the remaining evidence offered in support of the visa petition." 
The alien and his U.S. citizen spouse claimed that a visa was immediately available under a marriage based 
petition. A marriage certificate was introduced from the Town of North Hempstead, County of Nassau, State 
of New York and the petition was certified to be true and correct by the alien's spouse. There were no 
documents introduced in that marriage based petition process to withdraw the petition, or to correct 
information as submitted. 
Now counsel, in this employment based petition, has introduced statements and a document to refute certified 
statements in the marriage based proceeding. There is substantial and probative evidence in the record of 
proceeding of the marriage based petition to support a reasonable inference that a marriage was entered into 
between and the beneficiary2 which the petitioner in the later employment based petition 
attempts to disprove. There is clear evidence that there was an attempt to enter into a sham or fraudulent 
marriage and there is documentary proof in the record of proceeding that the marriage occurred between 
and the beneficiary based upon the marriage certificate in the record from the Town of North 
Hempstead, County of Nassau, State of New York. 
According to counsel on appeal, this marriage certificate is not authentic and the marriage never occurred. 
Counsel has submitted a "no record of marriage certification" for the period January 1, 1994 to December 3 1, 
1994 from the County of Nassau, State of New York to show that there is no record of a marriage between the 
beneficiary and in 1 994.3 
We will not accept the "no record of marriage certification" as independent objective evidence that a marriage 
did not occur between the beneficiary and The record contains a marriage certificate from the 
Town of North Hempstead, County of Na ew York stating that the beneficiary was married to 
a United States citizen on December 12, 1994. We have two contradictory documents that 
in the record on this matter. 
Matter of Ho, 19 I&N Dec. at 591-592 states: "It is incumbent on the petitioner to resolve any inconsistencies 
in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, 
absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice." 
We find that the alien beneficiary by fraud or willfully misrepresenting a material fact, sought to procure or 
has sought to procure or has procured a visa, other documentation, or admission into the United States. The 
alien beneficiary is in violation of Section 2 12(a)(6)(c)(i) of the Act first mentioned above. 
We also find that there is substantial and probative evidence of an attempt or conspiracy by the alien and other 
individuals who have attempted or conspired to enter into a marriage in violation of the regulation 8 C.F.R. 
$ 204.2(a)(l)(ii) for the purpose of evading the immigration laws. 
There is no evidence of innocent misrepresentations of the beneficiary in these regards in the record of 
See Matter of Tawfik, 20 I&N Dec. 166 (BIA 1990). 
Counsel has also submitted an affidavit from the beneficiary attested September 1, 2004, stating that no 
marriage occurred, but since the beneficiary's attested statements have been contradicted by the facts as 
presented here, we cannot rely on the beneficiary's affidavit as he has been found to be, by his attestations 
discussed above, not truthful or credible. 
Page 6 
proceeding. Other than characterizing the beneficiary as an innocent in this affair, counsel offers no credible 
explanation for the beneficiary's conduct throughout the submission of two immigrant petitions. The 
beneficiary failed to alert immigration authorities of the fraudulent marriage scheme, identify the participants 
in it in such detail to cause their apprehension, or withdraw from the fraudulent scheme to receive permanent 
residency status by marriage. 
Counsel cites the cases of precedents Matter of Concepcion, 16 I&N Dec. 10 (BIA 1976) and Matter of 
Anselmo, 16 I&N Dec. 152 (BIA 1977 ) in support of his contentions of the inapplicability of Section 204(c) 
of the Act. According to counsel, Matter of Concepcion stands for the proposition that Section 204(c) of the 
Act does not apply to case where there is no marriage in fact.4 In that case, the alien was lawfully admitted 
for permanent residence by reason of a marriage later determined not to have occurred. However 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. 3637, 3593 (1989). Among other modifications, IMFA added Section 204(c)(2), 100 
Stat. at 3543. "Paper" marriages are now covered by the ". . . attempted . . . to enter into a marriage" language 
of the statute. 
There is evidence of a series of willful misrepresentationsS and fraudulent acts made by the beneficiary in the 
obtaining of the visitor's visa resulting in an overstay, the introduction of fraudulent documents which 
represented a marriage that he now asserts did not occur, the participation of the beneficiary in the scheme as 
a co-conspirator by failing to alert immigration authorities of the fraudulent marriage scheme, identify the 
participants in it in such detail to cause their apprehension, or withdraw from the fraudulent scheme to receive 
permanent residency status by marriage, and by the omission from the subject employment based adjustment 
application of any information concerning the prior marriage based petition for permanent residency. 
We find that the beneficiary is ineligible for the classification sought based on the beneficiary's fraudulent 
marriage to a United States citizen pursuant to Section 204(c) of the Act, 8 U.S.C. 8 1154(c). 
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the 
petitioner. Section 291 of the Act, 8 U.S.C. tj 1361. Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
4 
 The case of Matter of Anselmo follows the holding in Matter of Concepcion. 
5 
 The director also found in her decision that the evidence submitted demonstrated that the beneficiary's 
employment experience was falsified. In summary, the petitioner submitted into evidence a job reference 
dated March 25, 2001 stating that the beneficiary was employed by Telecom Technology, as a technician in 
its Network System and Telephony from January 28, 1994 to May 15, 1998 in Brazil. However an affidavit 
from the beneficiary attested September 1, 2004, contradicts this employment experience as the beneficiary 
recounts that he was in New York City, New York, on January 3, 1995, and that he returned to Brazil at the 
end of 1996 to return to the United States under a visitor's visa on May 11, 1998. Counsel has not responded 
to the director's finding in this regard.