A

MA1 1ER OF A—

In VISA PETITION Proceedings

A-11959587

Decided by Board June 1, 1962

Visa petition—Section 205(c), 1952 act, as amended—Effect of revocation of

visa petition based on sham marriage.

Visa petition filed by beneficiary's first wife in 1959 accorded him nonquota

status as the spouse of a United States citizen. In 1961, approval of the

petition was revoked, and on appeal to the Board it was established that

the marriage was contracted for the purpose of evading the immigration

laws. Present petition was filed on behalf of beneficiary by his second wife,.

a United States citizen. In connection with the applicability of section

205(c), as amended by section 10 of the Act of September 20, 1961, it was

argued that beneficiary bad not previcusly been accorded nonquota status

since approval of the prior visa petition had been revoked.

Held: Nonquota status or third preference quota status was conferred upon,

the beneficiary when the visa petition was approved; subsequent revocation

is unimportant. It having been established in 1961 that the marriage was

not bona fide and was entered into for the purpose of evading the immigra-

tion laws, the provisions of section 10 of P. L. 87-301 are applicable to the-

instant petition and it must be denied.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order

of the District Director, Los Angeles District, dated February 5,,

1962, denying the visa petition for the reason that the alien benefi-

ciary previously was accorded a nonquota status under section

101(a) (27) (A) of the Immigration and Nationality Act as the

spouse of a citizen of the United States on the basis of a marriage,

which the Attorney General has determined was entered into for

the purpoce of evading the immigration laws; when these circum-

stances exist, the law prohibits the approval of the petition for such

alien.

The petitioner, a native-born citizen of the United States, 14 years

old, female, seeks nonquota status on behalf of the alien beneficiary,

a native and citizen of Portugal, 21 years old. The parties were

married at Saint George, Utah, on December 23, 1961. The peti-

tioner was never married previously, while the beneficiary was mar--

705

r,54:3 7-113-----4 6

lied once previously, on September 3, 1959, such marriage being

terminated by a decree of annulment obtained by the beneficiary on

December 21, 1961, in the Eighth Judicial District Court of the State

of Nevada in and for the County of Clark, City of Las Vegas.

The record shows that the alien last entered the United States on

January 13, 1959, as a visitor. He was previously the beneficiary of

a prior petition filed by his first wife on December 7, 1959, which

was approved on January 26, 1960, according the beneficiary non-

quota status as the spouse of a United States citizen. The parties

were married at Las Vegas, Nevada, on September 3, 1959, the

petitioner being then 41 years of age, the beneficiary 19. On Janu-

ary 13, 1961, the petitioner was notified that pursuant to 8 CFR

206.2 proceedings were being instituted for revocation of the ap-

proval of the visa petition on the ground that a bona fide husband-

and-wife relationship did not exist between her and the beneficiary

and that, therefore, the marriage could not serve as a basis for the

proper issuance of a nonquota immigrant visa, On July 14, 1961,

the District Director, Los Angeles District, notified the petitioner

that approval of the visa petition was revoked. On appeal to this

Board it was found that the evidence clearly established that the

marriage of the parties was not consummated; that the proposed

beneficiary had never resided with, the petitioner as man and wife;

that the petitioner, in an affidavit executed on December 14, 1960,

stated that she married the beneficiary at the request of his aunt so

that he could remain in the United States. The Board order con-

cluded that there had never been a valid bona fide marriage between

the petitioner and the proposed beneficiary ; that he could not qualify

for nonquota status; and that the marriage contracted between them

could not serve as a basis for the issuance of a nonquota immigrant

visa. The file also discloses that the heneficiary's application for

adjustment of status as a permanent resident pursuant to section 245

of the Immigration and Nationality Act was denied by the District

Director, Los Angeles District, on November 22, 1961, for the reason

that an immigrant visa was not presently available to the benefi-

ciary and his appeal to the Regional Commissioner, San Pedro

Region, was dismissed on December 14, 1961.

The District Director's &vial of the visa petition does not set

forth the provisions of the law which prohibit the approval of the

petition under the circumstances in this case, but such denial must

necessarily he predicated upon section 20Nc) of the Immigration

and Nationality Act, as amended by section 10 of the Act of Sep-

tember 26, 1961, Public Law 87-301, which provides, in part :

Notwithstanding the provisions of this subsection, no petition shall be ap-

proved if the alien previously has been accorded, by reason of marriage oe-

termined by the Attorney General to have been entered into for the purpose

of evading the Immigration laws-

706

(1 ) a nnwpinta status under section 101(a) (27) (A) as the spouse of a

citizen of the United States. .

This provision of law embodies a two-pronged requirement: (1)

that the alien previously have been accorded a nonquota status

under section 101(a) (27) (A) as the spouse of United States citizen;

and (2) that the marriage, upon which the status was accorded, was

entered into for the purpose of evading the immigration laws. Both

requirements must be established.

Counsel, in his brief, raises this question of whether the benefi-

ciary has been accorded a nonquota status when a prior petition has

been revoked. He argues that the very revocation acts nunc pro tune

to wipe out any possible benefit that the proposed beneficiary of the

prior petition could have had; that the revocation meant that the

proposed beneficiary did not receive any benefit under the immigra-

tion laws by virtue of his prior marriage; that he did not secure any

change of status, or any status from that marriage; that he never

acquired permanent residence in the United States because of a

ioniquota status based on his first marriage.

The issue raised is whether this alien previously has been accorded

nonquota (or third preference quota) status only when he has ob-

tained a change or adjustment of status or has acquired permanent

residence upon the basis of the sham marriage, or whether he was

accorded such status when the visa petition was approved.

The legislative history concerning the various bills' which finally

evolved as S. 2237 was eitau- Letl. as P. L. 87 301 on September 26,

-

1961, sheds very little clarification on this point. In his comments

on H.R. 6300, Congressman Walter explained that section 8(c)

(which contained the same language as embodied in section 10 of

P. L. 87-301) proposed to strengthen the existing law by giving the

Attorney General a new legal instrumentality to counteract the

increasing number of fraudulent acquisitions of nonquota status

through false marriages between aliens and United States citizens,

often prearranged by racketeers; that the Attorney General had

recently reported to the Congress about the increasing number of

such sham marriages indicating the existence of marriage schemers

operating in various parts of the country, particularly on the water

front, and arranging for high fees for deceitful marriages involving,

in most instances, alien seamen. 2 This statement appears almost

without change in the House Report to accompany S. 2237 which was

enacted into P. L. 87-301. 3 Senator Eastland stated that section 10

of the bill was designed to strengthen the provisions GI the Immi-

1S. 1809, H.R. 6671 and H.R. 6300, 87th Congress, 1st Session.

= Congressional Record—House (daily ed. April 13, 1961), p. 5376.

'an. 1086 (87th Congress, 1st Session), pages 36-37; 2 U.S. Code Con-

gressional and Administrative News (237th Congress, 1st Sesluu, 1901), p. 2980.

707

gration and Nationality Act with respect to the exclusion from

entry of those aliens who have entered into the fraudulent marriages

for the purpose of evading the law.'

The legislative history is helpful only to the extent that it ex-

presses dissatisfaction with the provisions of existing law 5 regard-

ing aliens who have entered into fraudulent marriages 'For the pur-

pose of evading the immigration law. It is noteworthy that section

10 of the Act of September 26, 1961, was enacted as an amendment

to section 205(c), and that section 205 of the Immigration and

Nationality Act is entitled "Procedure for Granting Nonquota Status

or Preference by Reason of Relationship " 6 The pertinent regula-

tions, 8 CFR 205.1 and also 8 CFR 299.1, provide that a petition to

accord nonquota status under section 101(a) (27) (A) of the Act or

quota immigrant status under section 203(a) (3) of the Act shall be

filed on a Form 1-130. By reference, the prescribed form becomes

a part of the regulations_ This Form T 130, which is entitled "Peti-

-

tion to Classify Status of Aliens for Issuance of Immigrant Visa"

provides for the Secretary of State to be informed, in the case of

approval of the visa petition by the District Director, that nonquota

status or third preference quota status is granted. Section 205(c)

provides that the Secretary of State shall then authorize the consular

officer to grant the nonquota or preference as'the case may be.

From the foregoing, it is concluded that the nonquota status or

third preference quota status has been conferred upon the beneficiary

when the Form 1-130 has been approved by the District Director.

It would appear to be unimportant that such status may subse-

quently be revoked under the provisions of section 206 of the Immi-

gration and Nationality Act or that the beneficiary may be found

deportable in an exclusion or deportation proceeding on the basis

of a sham or fraudulent marriage. It is concluded that when the

previous petition filed by the beneficiary's prior spouse was approved

for nonquota status on March 15, 1958, he was at that time accorded

nonquota status under section 101(a) (27) (A) as the spouse of a

United States citizen. The first requirement of the amendatory

section 10 of Public Law 87-301 is met.

We have previously outlin€d above the evidence which led to the

revocation of the previously-approved visa petition by the District

Director, Los Angeles District, on July 14, 1961, the appeal being

dismissed on October 13, 1961, by this Board on the ground that

there had never been a valid bor.4 ado marriage between the parties_

This prior adjudication constitutes a determination that the mar-

riage was a sham, entered into to accord the beneficiary nonquota .

4 10T Congresgimul Record—Senate (daily ed. September 15, 1001), p. 13966.

6 Presumably, section 212(a) (19) and section 241(c) of the immigration

and Nationality Act.

6 8 U.S.C.A. 1155.

708

status or the purpose of evading the immigration laws. The sec-

mid requirement of section 10 of Public Law 87 301 is also satisfied.

-

The prohibition of section 205(c) of the Act, as amended by sec-

tion 10 of tile Act of September 26, 1961, applies to the instant

petition. The appeal will be dismissed.

,ORDER: It is ordered that the appeal be and the same is hereby

.dismissed.

Thomas J. Griffin, Member, Dissenting:

The undersigned hereby dissents from the opinion of the majority.

The facts have been adequately stated in the opinion of the major-

ity and the sole issue upon which the undersigned dissents involves

the construction of section 205(c) of the Immigration and Nation-

ality Act, as amended by 75 Stat. 650 (Sept. 26, 1961).

The majority has held that under section 205(e) the beneficiary

herein had been accorded a nonquota status immediately upon the

approt al of his first wife's petition in his behalf. Counsel for the

petitioner contended on appeal that, a status could not, he accorded

the beneficiary of a petition solely upon the basis of that petition

having been approved. Section 205(c) in pertinent part states as

follows:

After an investigation of the facts in each case the Attorney General shall

. . . approve the petition and forward one copy thereof to the Department of

State. . . The Secretary of State shall then authorize the consular officer

concerned to grant the nonquota immigrant status, quota immigrant status,

or preference, as the case may be. Notwithstanding the provisions of this

subsection, no petition shall be approved if the alien previously has been

accorded, by reason of marriage determined by. the Attorney General to have

been entered into for the purpose of evading the immigration laws—

(1) a nonquota status under section 101(a) (27) (A) as the spouse of a

citizen of the United States, or

(2) a preference quota status under section 203(a) (3) as the spouse of

an alien lawfully admitted for permanent residence. (Emphasis supplied.)

The above-cited section here in issue clearly states that the non-

quota immigrant status, quota immigrant status, or preference is to

be granted by the consular officer concerned upon authorization by

the Secretary of State. There is no indication that the status can

be granted by any other person. The section clearly makes a distinc-

tion between the approval of a petition and the granting of a status

pursuant to such approval. However, the opinion of the majority

apparently attempts to equate eligibility for such status as indicated

by the approval of the petition with the actual granting of such

status. Furthermore, as indicated by the opinion of the majority,

the legislative history concerning the background bills which finally

evolved as Public Law 87-301 sheds little light as to the intention

of the Congress on this particular aspect. of the law. Concededly,

709

the Congress desired to discourage sham marriages entered into for

the purpose of evading immigration laws. However, acceptance of

the construction of the majority would place the beneficiary of a

denied petition in a better position than the beneficiary of an ap-

proved petition despite the fact that both beneficiaries are equally

guilty of being parties to a sham marriage to evade the Immigration

laws. It would appear that inasmuch as section 205(c) makes an

obvious distinction between the approval of a petition and the grant-

ing of a status, then 205(c) (1 and 2) should not apply until the

consular officer has granted the status in the form of the issuance of

a visa. It is my position that approval of the petition is nothing

more than a ministerial recognition of the eligibility for status and

that such finding of eligibility cannot be a sufficient basis for the

denial of an ensuant petition.

In summary, it is the position of the undersigned that section

205(c) clearly distinguishes between the approval of a petition and

the granting of a status and that the mere approval of the petition

(an ex parte procedure as to the alien beneficiary) is insufficient

basis for the denial of a second petition.

Robert E. Ludwig, Member, Dissenting:

I concur in the dissent of Board Member, Thomas J. Griffin.

710