No 245(i) Benefits from Fixed Marriage Filing
by Michael J. Gurfinkel

Recently, the Board of Immigration Appeals (BIA) ruled that in order for an alien to be “grandfathered” under Section 245(i) based on a spouse’s petition, the alien must prove that the marriage was “bona fide at its inception”.  If the marriage was “fixed” or a “marriage of convenience”, the alien will not be grandfathered under Section 245(i).

Section 245(i) was a law that expired on April 30, 2001.  It basically enabled certain aliens to preserve their future ability to adjust status (be interviewed for their green card) in the U.S., even if they had previously worked without authorization, overstayed, were out of status, jumped ship, entered the U.S. without inspection, etc., if they were petitioned (either by an employer or certain family members) on or before April 30, 2001. Section 245(i) was also “transferrable” from a petition or a labor certification filed before the April 30, 2001 deadline, to a new case filed after the deadline.

However, in order to be “grandfathered”, not only must the case be filed before April 30, 2001, but the petition must have been:

1. Properly filed (i.e. signed by the petitioner and the filing fee included)

2. Not frivolous (meaning not  “patently without substance”), and

3. Meritorious in fact (which, in the context of a marriage-based petition, means that the marriage was “real”, and not for convenience.)

In this case, the alien entered the U.S. without inspection (snuck across the border) and married a U.S. Citizen. She petitioned him before the April 30, 2001 deadline for Section 245(i).  The USCIS suspected that the marriage was fixed, and sent a Notice of Intent to Deny (NOID), and offered them the opportunity to submit proof that the marriage was bona fide. The alien and his wife never responded to the NOID.  Ultimately, the petition by his first wife was denied.

The alien later divorced his wife and married a second U.S. Citizen. Since he entered the U.S. “without inspection”, he needed Section 245(i), and sought to adjust status on the basis of being “grandfathered” using his first wife’s petition that was filed before the April 30, 2001 Section 245(i) deadline. The Immigration Judge found that because it appeared that the first marriage was “fixed”, it was not “meritorious in fact”. Therefore that petition could not “grandfather” the alien under Section 245(i). The BIA affirmed (or upheld) the decision of the Immigration Judge.

The BIA noted that in order to be “grandfathered” under Section 245(i) on the basis of a marriage-based petition, the alien must show (or prove) that the marriage was bona fide, meaning it was a “genuine marriage in which the parties intended to share a life as husband and wife, and not a marriage of convenience designed solely to confer an immigration benefit on one of the parties”.  If the marriage was fraudulent (or fixed), then the petition could not have been meritorious and it cannot grandfather an alien under Section 245(i).

The BIA noted that during the marriage interview of the alien and his first wife, they gave vastly different answers to questions, such as where they went after their wedding ceremony, whether the alien attended church, and how many windows were in their bedroom.  Therefore, the alien did not establish that his first marriage was “bona fide” or “meritorious in fact”, such that he was not grandfathered under Section 245(i).

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