Prior Marriage Must be "Bona Fide" in Order to be Used for INA §245(i) Purposes

Prior Marriage must be “Bona Fide” in order to be used for INA §245(i) purposes

Many aliens that are out of status, but are otherwise eligible to obtain a greencard through a family based or employment based petition, are barred from doing so unless they are grandfathered by INA Section 245(i). To be grandfathered by INA section 245(i), one of the requirements is that you are a beneficiary of a prior immigrant petition filed on or before April 30, 2001 that was approvable. What happens when the prior petition was a marriage based petition which was denied? What happens if the denial was due to failure to prove bona fide marriage? Are you able to use that former petition for purposes of grandfathering under INA §245(i)?

The BIA held in Matter of Jara Riero and Jara Espinol, 25 I. & N. Dec. 267 (B.I.A. August 15, 2007), that an alien seeking to establish eligibility for adjustment of status under INA § 245(i) based on a previous marriage petition must prove that the marriage was bona fide at its inception. This was necessary in order to show that the visa petition was "meritorious in fact" pursuant to 8 CFR § 1245.10(a)(3) (2007).

CFR § 1245.10(a)(3) (2007) defines approvable when filed to mean that as of the date of the filing of the qualifying immigrant visa petition under section 204 or qualifying application for labor certification, the qualifying petition or application was properly filed, meritorious in fact, and non-frivolous. This determination will be made based on the circumstances that existed at the time the qualifying petition or application was filed. A visa petition that was properly filed on or before April 30, 2001, and was approvable when filed, but was later withdrawn, denied, or revoked due to circumstances that have arisen after the time of filing, will preserve the alien beneficiary's grandfathered status if the alien is otherwise eligible to file an application for adjustment of status under section 245(i) of the Act.

The denial, withdrawal, or revocation of the approval of a qualifying immigrant visa petition, or application for labor certification, that was properly filed on or before April 30, 2001, and that was approvable when filed, will not preclude its grandfathered alien (including the grandfathered alien's family members) from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition, a diversity visa, or any other ground for adjustment of status under the Act, as appropriate. 8 CFR § 1245.10(i).

In the Mater or Riero and Espinol, the BIA found that, while there is little case law construing the terms "approvable when filed" or "meritorious in fact," it agreed with the decision of the U.S. Court of Appeals for the First Circuit inLasprilla v. Ashcroft, 365 F.3d 98 (1st Cir. 2004), that, in order for a visa petition to be "approvable when filed" in this context, there must be a showing that the marriage was bona fide. Moreover, the Board held, in order to be "meritorious in fact," the visa petition must be based on "a genuine marriage in which the parties intended to share a life as husband and wife, not a marriage of convenience designed solely to confer an immigration benefit on one of the parties."

The BIA’s decision was supported by the explanation in the Federal Register which states that a visa petition is not approvable when filed if it "is fraudulent or if the named beneficiary did not have, at the time of filing, the appropriate family relationship or employment relationship that would support the issuance of an immigrant visa." In the marriage context, a "fraudulent" visa petition would include one where the marriage was not entered into in good faith. The respondent bears the burden of proving that the marriage was entered into in good faith.

Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.

Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive former CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail kureyeslaw@gmail.com; visit at www.kenreyeslaw.com