“That if desperate times call for desperate measures, then I’m free to act as desperately as I wish.”
― Suzanne Collins, Catching Fire
With all due respect to Suzanne Collins, desperate acts in an immigration context, change the times from desperate to heart breaking. Below is an example, not of one particular case, but a blending of several cases. The names are made up and not related to any actual person.
John had come to the United States on a student visa, completed his studies and got a good job on his employment authorization document (work card). As time got closer to the expiration of the EAD John started to get desperate as to how he could stay in the United States. There are no work visas available and the processing time for the employment based green card would take longer than John has on his EAD. John has a friend from college, Suzie. Suzie likes John and does not want to see him have to go home. John and Suzie marry so John does not have to leave the country, and they file the necessary immigration paperwork.
Time goes by and John and Suzie get their notice for an interview. They talk about their situation, neither one wants to lie to an immigration officer. They decide to withdraw their petition and applications, because John has met Mary and he is deeply in love with Mary. Immigration acknowledges the withdraw of the petition and application, and shortly thereafter John and Suzie end their marriage. Once that has happened John and Mary have a beautiful church wedding with all of their family and prepare to live happily ever after. Mary, the United States Citizen, files for John’s green card.
The paperwork goes through, no problems, John gets his EAD and a few months later John and Mary are scheduled for an interview at the Cincinnati Field Office of USCIS. John and Mary are happy, excited and a little bit scared of the interview. They are not worried because their marriage is real and they have all the evidence to prove it.
At the interview the officer ask both John and Mary several questions based upon their paperwork, how they met and about their life together. The officer then ask John about his previous marriage to Suzie. John explains to the officer that Suzie is his friend and she was just trying to help him out. They were not really married and they withdrew their paperwork so they would not have to lie to an immigration officer. The officer asked John to write down what happened with his marriage to Suzie, so the officer could put the explanation in the file, along with the withdraw. John is happy to do so to get the interview over and get his green card.
Once the officer has the statement, he tells John and Mary he knows their marriage is real, but because of what John has done with his marriage to Suzie he is barred from ever getting his green card. John and Mary are heart broken and don’t know how this could be.
Section 204(c) of the Act provides that:
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.
If there is evidence that the beneficiary has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws, the petition must be denied. However, the evidence of the attempt or conspiracy must be contained in the alien’s file. (See also 8 CFR 204.2(a)(1)(ii).)
Note: Section 204(c) prohibits the approval of any petition, not just an I-130 petition. Accordingly, if an alien has attempted of conspired to enter into a fraudulent marriage, USCIS would also be barred from approving an I-140 petition filed in his or her behalf.
What can John and Mary do? Based on the facts above, John have violated a law that has no waiver. There is not any relief available for John, under these facts. By changing the facts, even slightly, John, with the help of a good immigration lawyer, could convince the officer that John had not violated 204(c) and John and Mary could live happily ever after. Such change in facts could be, that John never filed any documents with USCIS and Suzie wanted to surprise him by filing for John. If John and Suzie married, but the marriage did not last even a few months. These cases John could still be eligible to adjust.
If you have prior marriages and you are filing for immigration benefits, please do yourself a favor and at least speak to an immigration lawyer. A good immigration lawyer will be able to point out any problems with your case, tell you how long the case will take and what your chances of success are.