In this case, the Board of Immigration Appeals (“BIA”), which is kind of like the “Supreme Court of Immigration Judges,” held that a noncitizen who conspires to engage in marriage fraud to obtain a K-1 fiancé visa is barred from obtaining an immigration visa petition under INA § 204(c)(2). The BIA also held that for INA § 204(c)(2) to apply, the noncitizen’s conspiracy must include an “overt act” to enter a marriage for the purpose of evading U.S. immigration law.
Many immigration clients hire KKTP to help them come to the United States, or adjust to lawful permanent resident (“LPR) status in the United States, through a family member. To do so, clients often hire our firm to file a Form I-130, Petition for Alien Relative. Sometimes, clients come to us with a Form I-130 already approved, and hire us to assist them in the final stages of their immigration process.
Matter of R. I. Ortega is an important case to remember because it shows that when noncitizens apply to enter the U.S. as Immigrants or adjust to LPR status, USCIS will likely closely inspect the noncitizen’s entire immigration history. In this case, the BIA held that because Mr. Ortega had attempted, many years in the past, to enter the United States on a temporary K-1 fiancé visa through a sham marriage, he could not adjust status through his U.S. citizen mother. USCIS revoked the approved Form I-130 filed for Mr. Ortega’s benefit by his U.S. citizen mother under INA § 204(c)(2). So, before noncitizens attempt to adjust to LPR status or become U.S. citizens, it is incredibly important that they review their entire immigration history – including unsuccessful attempts to enter the U.S. in the past – with their attorney.
This case is also interesting because in it, the BIA applies a different definition for the word “conspiracy.” The BIA held, somewhat contrary to its 2010 case Matter of Richardson, that the word “conspiracy” under INA § 204(c)(2) requires commission of an “overt act” in furtherance of the conspiracy. How this new definition for the word “conspiracy” will impact KKTP clients in the future – particularly in Immigration Court removal proceedings – remains to be seen, and is a complicated question, so stay tuned for further developments!
