The Board of Immigration Appeals has issued a new decision clarifying the standard for denying an I-130 petition based on marriage fraud. The standard of proof necessary to bar the approval of a visa petition based on marriage fraud is substantial and probative evidence. This standard is more than a preponderance of evidence, and closer to (but less than) clear and convincing evidence. Both direct and circumstantial evidence may be considered in determining whether there is substantial and probative evidence of marriage fraud, and circumstantial evidence alone may be sufficient to constitute substantial and probative evidence.

The central question in determining whether a sham marriage exists is whether the parties intended to establish a life together at the time they were married. Such a determination requires an examination of the conduct of the parties before and after the marriage to ascertain their intent, but only to the extent that it bears upon their subjective state of mind at the time they were married.

A sworn statement by the parties admitting that the marriage is fraudulent, that money changed hands, and that the couple did not intend to live together or consummate the marriage is direct evidence of fraud that is substantial and probative. However, an admission or other such direct evidence is not necessary to establish marriage fraud.

Where there are some minor inconsistencies and the documentary evidence is limited, they should be considered in assessing whether there is fraud, but these factors, without more, would not likely be sufficient to satisfy the substantial and probative evidence standard for marriage fraud. Evidence that the parties knowingly and deliberately attempted to mislead or deceive immigration officials regarding their cohabitation, joint finances, or other aspects of the marriage strongly indicate fraud. Detailed reports from on-site visits and field investigations are especially important pieces of evidence that may reveal the presence of fraud. Evidence that the parties have other romantic partners, with whom they may have children, is also a significant consideration, especially when these facts are either not disclosed or are deliberately concealed. Statements from family members, employers, or acquaintances indicating they do not know about the marriage or that the parties told them the marriage is a sham are additional indicia of fraud. Other circumstantial evidence that may support a finding of marriage fraud includes evidence that one or both parties have been filing taxes as single persons during the marriage or otherwise holding themselves out to be single while representing to immigration officials that they are still married. Official Government documents indicating fraud carry more evidentiary weight than informal evidence of a bona fide marriage, such as insurance policies or bank account statements.

Where there is evidence that the petitioner has been married to several beneficiaries, especially if a connection between the petitioner and a former spouse has continued through joint property ownership, finances, or benefits, the likelihood of the beneficiary’s involvement in a fraudulent scheme should be considered. Affidavits alone will generally not be sufficient to overcome evidence of marriage fraud in the record without objective documentary evidence to corroborate the assertions made by the affiants.

The full text of Matter of P. Singh can be found here: