If your marriage-based green card application was denied because the U.S. government determined that your marriage to a U.S. citizen or lawful permanent resident is or was fraudulent, you have certain appeal rights. In other words, you can ask a higher legal authority to take another look.
How and where you will submit this appeal depends in part on where the U.S. petitioner lives (in the United States or abroad), where the application paperwork was filed, and how far along in the process the immigrant was when denied. With the right approach, you might be able to get your application back on track for an approval, as we'll describe below
If the decision by U.S. Citizenship and Immigration Services (USCIS) denying your marriage-based petition or application contains phrases such as "sham marriage," "fraudulent marriage," or marriage "entered into for the sole purpose of circumscribing immigration law" then the agency has made a conclusive finding of marriage fraud. (See I.N.A. Section 204(c).)
Procedurally speaking, USCIS may make such a finding either early on, after the U.S. spouse submitted an I-130 petition on the immigrant's behalf, or later, after the couple submitted the entire green card application in the U.S. and attended an adjustment of status interview.
In certain situations, filing an appeal of a marriage fraud finding can amount to fighting a battle that has already been lost. In particular, if the marriage is really a sham or fraud, then pressing the point with USCIS might only lead to greater trouble.
If, however, your marriage is real and you believe USCIS found against you merely because you presented limited evidence of the legitimacy of the marriage (perhaps because the marriage is new and you and your spouse have been slow to establish your life together), and you think you can ultimately overturn the sham marriage finding, then filing an appeal might not only be successful, but a good idea. Without it, the intended immigrant faces the prospect of having an immigration record that's permanently marred by a fraudulent marriage finding.
In some situations, however, it can make more sense to refile an I-130 marriage-based petition than to file an appeal. If, for instance, issues that led to USCIS's denial have now been remedied, such as the couple now living together when they weren't before, refiling the petition will serve to present USCIS with more evidence of the bona fide marriage and a cleaner, more organized presentation.
Refiling the petition might (depending on circumstances) even give you an opportunity to appear at another interview with a USCIS officer and convince USCIS that the marriage is bona fide after all.
But refiling a new petition does not let you start with a clean file. USCIS will carry the fraudulent marriage finding over. So, it will still be necessary to disprove USCIS's concerns that the marriage is a sham.
When making the decision whether to refile an I-130 marriage-based petition or file an appeal, your best bet is to consult with an immigration attorney.
The governmental body that reviews appeals of USCIS denials of I-130 marriage-based petitions is the Department of Justice's Board of Immigration Appeals (B.I.A.). The B.I.A. is independent from USCIS, which is under the control of the Department of Homeland Security. However, you cannot file the appeal directly with the B.I.A.
Instead, you must file the appeal with the District Director of the USCIS local office that denied your visa petition. This address will be included in the USCIS denial decision. USCIS will then forward your petition to the B.I.A.
The appeal must be filed on Form EOIR-29, Notice to the Board of Immigration Appeals from a Decision of an Immigration Officer. The foreign resident or beneficiary of the immigrant petition will not file or sign the appeal. Rather, the spouse who filed the I-130 petition on the immigrant's behalf must do so.
As of mid-2023, the filing fee for the appeal is $110, but a significant fee rise has been proposed.
Form EOIR-29 must be filed within 30 days of the date the I-130 denial decision was mailed to you (or served on you personally) by USCIS. In addition, you should be given 21 days from the day you file your appeal in which to file a written brief in support of the EOIR-29.
If you are filing without a lawyer's help, you'll need to pay close attention to the date listed on the denial decision and follow all instructions pertaining to filing deadlines. If you file your appeal after the deadline has passed, the B.I.A. will reject it and USCIS's decision alleging marriage fraud will become final.
On Form EOIR-29, you will need to clearly state the reasons you believe that the B.I.A. should grant your appeal, focusing on why USCIS is wrong in its belief that the marriage is fraudulent. The B.I.A. can deny the appeal if you don't give specific reasons to support your claim that USCIS's decision was a mistake.
While the form provides only a small space in which to type a few sentences, you do have the option of attaching pages and additional evidence. This is highly recommended, because you will need to convince the B.I.A. that the immigration officer was wrong to find fraud in your I-130 petition.
If, for example, the denial decision questioned whether you and your spouse live together or whether you share financial assets, then you should provide relevant evidence that you may not have included previously or that has just become available. This could include such items as IRS and state-government certified transcripts of income tax returns (filed jointly or from the same address), detailed and up-to-date monthly bank statements for joint accounts showing that you and your spouse are actively sharing finances, a signed copy of a residential lease by all parties including the landlord with an accompanying affidavit from the landlord affirming knowledge that you two are residing together, and, if you own property with your spouse, proof of joint ownership with mortgage statements showing both names and a copy of the deed.
While there is an option on the EOIR-29 to request an oral argument (a live, in-person hearing), the B.I.A. rarely schedules oral arguments. Therefore, you must convince the B.I.A. through your written arguments that the marriage is real, not fraudulent. It's best to submit your written brief along with the appeal, but if you are running out of time, file the appeal form and then submit a brief later, within 21 days. This will give you a better opportunity to fully detail your arguments as to why the marriage is bona fide or real.
When an immigrant files an appeal, USCIS has several choices to make on how it will respond. USCIS staff attorneys may, in some cases, answer the appeal with a detailed written legal brief of their own, stating the agency's case.
Or, USCIS may simply issue a short statement in support of its decision denying the marital petition. If your appeal alleged an error (procedural or otherwise) that USCIS made in the adjudicative process, it could prompt the agency's staff attorneys to request that the case file be remanded back to it, in order to take further action of its own on the case.
Consulting with an experienced immigration attorney is a smart move whenever a U.S. immigration agency makes an allegation of marriage fraud, because of the seriousness of the accusation. A finding of marriage fraud could prevent you from being able to seek any other U.S. immigration benefits.
Additionally, there are significant criminal penalties for committing marriage fraud. Experienced immigration attorneys have likely filed numerous appeals in alleged marriage fraud cases and can give you a good assessment of potential success on appeal and whether filing the appeal is appropriate. These attorneys should also be experienced in writing appellate briefs and can give you a stronger voice before the B.I.A. than if you were to write a brief on your own.
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