sustained EB-3 Case: Health Insurance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 24, 2023 In Re: 26712911 
Appeal of Cleveland, Ohio Field Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Skilled Worker) 
The Petitioner, a health insurance company, seeks to permanently employ the Beneficiary as a 
"business solutions provider." The company requests his classification under the employment-based, 
third-preference ("EB-3") immigrant visa category for professionals. See Immigration and Nationality 
Act (the Act) section 203(b)(3)(A)(i), 8 U.S.C. § 1103(b)(3)(A)(i). This category allows a prospective, 
U.S. employer to sponsor a noncitizen to obtain lawful permanent resident status to work in a job 
requiring at least a bachelor's degree . Id. 
After the tiling's initial grant, the Director of the Cleveland, Ohio Field Office revoked the petition's 
approval, invoking the "marriage -fraud bar." See section 204(c) of the Act, 8 U.S.C . § l 154(c). The 
Director concluded that the Beneficiary married his former U.S.-citizen spouse primarily to evade 
immigration laws, barring the petition's approval. Id. On appeal, we withdrew the Director's decision 
and remanded the matter for further analysis . In Re: 16608481 (AAO Jun. 30, 2021 ). On remand, 
the Director again revoked the petition's approval, concluding that the Beneficiary "more than 
probably" engaged in a sham marriage. 
The matter returns to us on a second appeal. The Petitioner contends that the Director erroneously 
applied the marriage-fraud bar and disregarded evidence of the marriage's bonafides. 
In these revocation proceedings, the Petitioner bears the burden of demonstrating eligibility for the 
benefit request by a preponderance of the evidence . See Matter ofHo, 19 I&N Dec . 582, 589 (BIA 
1988) ( citation omitted). Exercising de novo appellate review, see Matter of Christo 's, Inc., 26 I&N 
Dec. 537,537 n.2 (AAO 2015), we conclude that the record does not support the marriage-fraud bar's 
invocation . We will therefore sustain the appeal. 
I. LAW 
Immigration as a professional generally follows a three-step process. First, a prospective employer 
must obtain certification from the U.S. Department of Labor (DOL) that: there are insufficient U.S. 
workers able, willing, qualified, and available for an offered position; and permanent employment of a 
noncitizen in the position would not hann wages and working conditions of U.S . workers with similar 
jobs. Section 212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). 
Second, an employer must submit a DOL-approved labor certification with an immigrant visa petition 
to U.S. Citizenship and Immigration Services (USCIS). Section 204(a)(l)(F) of the Act. Among other 
things, USCIS determines whether a noncitizen beneficiary meets the requirements of a DOL-certified 
position and a requested immigrant visa category. 8 C.F.R. § 204.5(1)(3)(i), (ii)(C). 
Finally, if USCIS approves a petition, a beneficiary may apply for an immigrant visa abroad or, if 
eligible, "adjustment of status" in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
"[ A ]t any time" before a beneficiary obtains lawful permanent residence, however, USCIS may revoke 
a petition's approval for "good and sufficient cause." Section 205 of the Act, 8 U.S.C. § 1155. USCIS 
properly issues a notice of intent to revoke (NOIR) a petition's approval if the unrebutted and 
unexplained record at the time of the NOIR's mailing would have warranted the petition's denial. 
Matter ofEstime, 19 I&N Dec. 450,451 (BIA 1987). The Agency properly revokes a filing's approval 
if a petitioner does not respond to a NOIR or if the business's NOIR response does not overcome the 
alleged revocation ground(s). Id. at 451-52. 
II. ANALYSIS 
USCIS cannot approve a visa petition for a noncitizen who has attempted or conspired to enter into a 
marriage "for the purpose of evading the immigration laws." Section 204( c) of the Act. Even iflegally 
valid where it occurred, a marriage "entered into for the primary purpose of circumventing the 
immigration laws" permanently bars approval of a visa petition. Matter ofP. Singh, 27 I&N Dec. 598, 
601 (BIA 2019) (citations omitted). To determine the existence of a fraudulent or sham marriage, 
adjudicators must determine whether the parties "intended to establish a life together at the time they 
were married." Id. Officers must examine the parties' conduct before and after the marriage to 
ascertain their intent, but "only to the extent that it bears upon their subjective state of mind at the time 
they were married." Id. 
"Substantial and probative evidence" must support a marriage-fraud finding. 8 C.F.R. 
§ 204.2(a)(l)(ii). Thus, to invoke the marriage-fraud bar, the record must establish that a marriage 
was "more than probably" fraudulent. Matter ofP. Singh, 27 I&N Dec. at 607. This standard of proof 
is higher than a preponderance of the evidence but lower than clear and convincing evidence. Id. at 
607 n.7. 
The Director based revocation of this petition's approval largely on alleged discrepancies between the 
testimonies of the Beneficiary and his former spouse. After the Beneficiary's spouse filed a family­
based immigrant visa petition for him, a USCIS officer interviewed the couple in January 2015. See 
section 20l(b)(2)(A)(i) of the Act, 8 U.S.C. § l 15 l(b)(2)(A)(i) (allowing family-based, immigrant visa 
classification of noncitizen spouses of U.S. citizens as "immediate relatives"). The officer separated 
them, asked each the same series of questions, and alleged the following inconsistencies: 
• As listed on his spouse's petition for him, the Benefici1 stated thaj ~e, his spouse, and her 
2-year-old son from a prior relationship lived together in Ohio. But she testified 
at the interview that she and her son primarily lived in Ohio, about 60 miles 
froml Iand saw the Beneficiary on weekends. 
• She stated she had three brothers. He said she had only one brother. 
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• She stated she received disability benefits because she suffered from attention deficit 
hyperactivity disorder (ADHD) and bipolar disorder, psychological conditions that caused 
mood swings, depression, anxiety, and irritability. He said she received the benefits because 
she had problems with "stress." 
• She stated her mother helped her pay rent. He said he paid all the couple's bills. 
• She stated that the lease to the I lhome listed her as a tenant. He said she was not on 
that lease. 
• She stated that he proposed marriage to her with a ring. He said that, when he proposed, he 
did not give her a ring. 
• She identified his joint financial sponsor as his uncle. See section 213A of the Act, 8 U.S.C. 
§ 1183a (listing "requirements for sponsor's affidavit of support"). He said his financial 
sponsor was a friend. 
• She stated that her son attended a daycare facility in I I He said the boy attended 
daycare inl I 
The Director found that the Beneficiary's marriage was "more than probably" fraudulent. The 
Director stated: "The beneficiary initially attempted to assert the couple lived together when they did 
not. The couple also provided discrepant testimony about essential elements to a relationship, 
including their [marriage] proposal, childcare, family members, and health issues." 
The Beneficiary and his spouse, however, provided credible explanations for some of the inconsistent 
testimony. They said the Beneficiary had met only one of her brothers, so he mistakenly thought she 
had only one male sibling. Also, they said he had told her that his uncle would serve as his financial 
sponsor but forgot to mention his friend's later substitution into that role. Further, the couple explained 
that he had asked her to marry him twice: first without a ring; and then with a ring. He said that, 
consistent with his native Ghanaian culture, he did not believe that engagement required a ring and 
identified his first request as the marriage proposal. His U.S.-bom spouse said she took seriously only 
the second proposal with the ring. 
Also, the Director did not consider uncontroverted evidence of the couple's relationship before their 
marriage. See Matter of P. Singh, 27 I&N Dec. at 601 (requiring consideration of parties' conduct 
"before and after the marriage"). Both parties testified that they met at a university in November 2012 
when she sat next to him at an African cultural event. They talked there, and she gave him her 
telephone number. The couple then frequently talked on the phone and began dating. The record 
shows that he got along well with her son. His two marriage proposals came a few weeks apart in 
November 2013, about a year after they met. The record shows that, after the couple's engagement, 
the Beneficiary's father, who lives in the United Kingdom, spoke to her mother on the phone. Thus, 
a preponderance of the pre-marital evidence indicates the couple's intent to share their lives together. 
Like the Director, we are troubled by the couple's inconsistent testimony in January 2015 regarding 
their residences. On its own, however, evidence of separate residences does not establish a fraudulent 
marriage. Matter of Tawfik, 20 I&N Dec. 166, 169 (BIA 1990). Also, evidence indicates that the 
Beneficiary wanted his spouse and stepson to live with him inl lbut that she resisted. She 
stated that "stress" and other symptoms from her psychological conditions caused her to remain in 
IBecause the couple did not cite this explanation at the time of their interview in January 
2015, the Director discounted it. Both parties, however, described their separate residences as a source 
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of friction in their marriage, and the record shows they attended counseling together in 2015 in an 
effort to resolve the issue. 
Further, about four months after the couple's initial interview, USCIS officers gathered additional 
evidence that suggests the couple's intent to share their lives together. The officers reported that they 
made unannounced visits to the Beneficiary and his spouse at their separate residences on a Tuesday 
in May 2015. Both spouses showed officers clothing at their homes belonging to the other party and 
stated that the Beneficiary visited his spouse inl Ialmost every weekend. Additionally, the 
Beneficiary's home inl Icontained a child's bed, toys, and photographs of the Beneficiary's 
spouse and her son. She also showed officers photos on her cell phone and an airline ticket regarding 
the couple's trip to Hawaii together in March 2015. Additionally, the Beneficiary told the officers that 
his spouse was injured in an automobile accident in April 2015 and identified the person who cared 
for her son when she attended physical therapy appointments. The Beneficiary's spouse later 
confirmed the information the Beneficiary provided. 
The record also contains evidence that: the Beneficiary and his spouse had joint car insurance; his 
employment health benefits covered her as a dependent; the couple had photographs of them together 
at their wedding, his university graduation, and with her son; and the couple presented numerous 
affidavits from family members and friends. The Beneficiary also had continuing contact with his 
mother-in-law, who also lived inl I 
Thus, while the couple's inconsistent testimony regarding their residences casts doubt on the bona 
fides of the Beneficiary's marriage, the record as a whole does not establish that the union was "more 
than probably" entered into for the purposes of evading immigration laws. We will therefore withdraw 
the revocation decision. 
ORDER: The appeal is sustained. 
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