I got a letter "intent to Deny" have 30 days to prove I was never married before, which I never was but the agent who filed my papers put me down as married, never knew my visa application papers said I was married as my wife and I got married in 2019 and applied for marriage based change of status. Came here on B1/B2 visa, I have no idea what to provide as an evidence. We have a month old baby and a life here, will I be deported if I can't provide strong evidence of I was never married before.
Intent to Deny
- Thread starter sidxec777
- Start date
Sm1smom
Super Moderator
Unfortunately, you’re responsible for whatever was written on your DS160 which was used in applying for your B1/B2. Claim of not knowing what the agent put down on the form on your behalf will not cut it. Since you’re on record with the US government as being previously married, you’ll need to produce either a divorce paper showing the previous marriage was legally terminated before you married your current wife, or a death certificate showing the previous spouse is dead.
This is not a DIY situation anymore, you better go speak with a lawyer.
This is not a DIY situation anymore, you better go speak with a lawyer.
It’s one thing to prove that you’re married or divorced but proving that you were never married is quite tricky as I’m not sure if there is any central DB of marriages in US or abroad. Perhaps affidavits from your close relatives and one from you that you made a mistake? Did the agent fill out the name of your spouse in the DS160 as well? Not sure if they as that but that would be a tough one to correct than a mere checkbox of married/single. Agreed with above poster, talk to an experienced attorney before the case gets messed up further.
SusieQQQ
Well-Known Member
There have been a few of these cases reported on the other forum. I’ve not yet seen a successful resolution in terms of visa issuance, because it’s almost impossible to prove you were never married. In the event that one somehow manages it, there would then be the misrepresentation bar to deal with (it’s not just ticked the wrong box because spouse details are required) - but I’ve never seen it get that far. The solution to staying together as a married couple may have to be to move to OP’s homeland.
OP -a request please - if you do manage to get this sorted out, please come back and report how. It could be very useful to others in the same situation.
That’s what I thought...it shouldn’t be merely a checkbox. The name of the spouse must be included since the same applies to I-485 and N-400. A box check could be a genuine mistake but If someone fudged the name of the spouse that would be misrepresention. Now whether it is material or not would depend on if the benefit (visa) would be otherwise unavailable to them under true facts (of being unmarried) as per Kungys & Maslanjak. I think a lawyer should be able to make a legal argument that the misrepresentation is not material in this specific case as being married or unmarried would not affect the B1/B2 visa issuance, so a 212a6ci bar will not apply. But this may balloon into a federal case under APA as most USCIS adjudicators are clerical level workers and not legal experts. Good luck OP. Hopefully you will get it resolved. They are actually trying to see if you have a bigamous relationship which is illegal.
You maybe right about B1/B2 not sure but I recall reading a federal case where someone claimed to be single for a DV visa and then claimed to be married back home during N400. They were able to win the denial under a 1421c federal appeal because the lawyer argued that being married is not a bar to a DV and would not disqualify the applicant so the misrepresentation was not material. Misrepresentation results in a bar only if it’s material to the outcome. For example if a person was married and claimed to be single and then married a USC and applied for I-130 that’s material misrepresentation since bigamy is expressly illegal so the 2nd marriage without divorce would not qualify someone for AOS. But being single and claiming to be married although bizzare doesn’t seem to affect the legal outcome of the visa issuance since there is no statutory bar for issuing B visas to married individuals (according to me, I maybe wrong). Honestly OP’s biggest challenge is to prove that he/she was really unmarried. I’m not sure how to do that.
Sm1smom
Super Moderator
I’m actually interested in reading about this particular case considering failure to disclose or include existing an existing spouse or children on the DV entry would indeed have led to a disqualification during the interview. Being married may not be a bar, but failure to disclose this marriage on the DV entry form and subsequently during the immigration interview constitutes an approval bar. This is a misrepresentation as the disclosure of a spouse at the time of the interview would have resulted in a visa denial. A lawyer being able to successfully argue this wasn’t a misrepresentation is quite intriguing. Can you provide the case citation or source of this story please?
SusieQQQ
Well-Known Member
I’m not sure where fin gets this idea that a misrepresentation is only material if it is a statutory bar to getting a visa. Nothing in the manual on misrepresentation says that, only that it is something that leads to the person getting an immigration benefit they otherwise would not have got. Providing false information to create a tie that doesn’t exist to get around 214b would certainly fall into that.
Agree the DV case sounds odd as it is expressly stated in law as an ineligibility.
Again, I think the misrepresentation is irrelevant anyway here as this case is almost certainly going to be unable to overcome the denial based on past reports of similar cases. Seeing as OP is presumably hiring a lawyer they can ask about the misrepresentation angle too anyway.
Agree the DV case sounds odd as it is expressly stated in law as an ineligibility.
Again, I think the misrepresentation is irrelevant anyway here as this case is almost certainly going to be unable to overcome the denial based on past reports of similar cases. Seeing as OP is presumably hiring a lawyer they can ask about the misrepresentation angle too anyway.
Early last year, I had my own federal case and so I recall reading a bunch of cases with delayed/denied citizenship and this case was a part of that. It was not particularly relevant to me so I didn't keep the citation. But in general, the materiality standard in immigration law is governed by the Supreme Court decision in Kungys v United States. This decision also governs the "good moral character" requirement specifically pertaining to lying and what specific lies would bar GMC (further elaborated by Maslanjak v US in 2017). Any case involving materiality or GMC either by BIA or federal courts always uses the Kungys "natural tendency" test. You could read the case but just to give a gist I am copying a summary of facts from Lexis.
In October 1944, Kungys and his wife moved to Tuebingen in Nazi-occupied Germany where they lived under an unrestrictive residence permit that allowed them to move freely throughout the territory without special conditions. In January 1947, they applied for a United States non preference immigration visa at the American consulate in Stuttgart, Germany. Although the records in Tuebingen accurately stated Kungys' true date and place of birth, Kungys submitted a false Lithuanian identity card, false birth certificate, false police certificate, and a certificate stating that the Gestapo had persecuted him. Based on this information, the American consulate *451 issued Kungys a non-preference visa in March 1948. Kungys became a naturalized citizen in Newark, New Jersey, in 1954.
The government moved to de-naturalize him that he had materially misrepresented his date of birth, place or birth and wartime occupation during his immigrant visa and naturalization application and hence his naturalization was illegally procured.
In determining whether Kungys' misrepresentations met the Court's new standard of materiality, the Court held that � 340(a) is limited to falsehoods or deceptions in the naturalization proceedings and not misrepresentations made in the visa process, because it is the former falsehoods which "procure" the naturalization. The Court concluded that Kungys' misrepresentations of the date and place of his birth in his naturalization petition were not material. There was no suggestion that the facts were themselves relevant to Kungys' qualifications for citizenship. Likewise, there was no showing that the true date and place of birth would have disclosed other facts relevant to his qualifications and would have resulted either in outright denial or an investigation resulting in denial of the naturalization application. Hence, the government failed to establish clearly, unequivocally, and convincingly that Kungys' misrepresentations had a natural tendency to influence the decision of the INS.
For purposes of determining the natural tendency of a misrepresentation to affect a decision under § 1451(a), what must have a natural tendency to influence the official decision is the misrepresentation itself, not the failure to create an inconsistency with an earlier misrepresentation.
A misrepresentation is generally material only if by it the individual received a benefit for which she would not otherwise have been eligible. See Kungys v. United States, 485 U.S. 759 (1988); see also Matter of Tijam, 22 I&N Dec. 408 (BIA 1998); Matter of Martinez-Lopez, 10 I&N Dec. 409 (A.G. 1964; BIA 1962). A misrepresentation or concealment must be shown by clear, unequivocal, and convincing evidence to be predictably capable of affecting, that is, having a natural tendency to affect, the official decision in order to be considered material. Kungys at 771:...72.
In Cufari v. United States (1st Cir.1954) the First Circuit held that a naturalized citizen could not be denaturalized for failing to disclose his criminal record at the time of naturalization, unless the government could prove that he had been asked during the proceedings whether he had a criminal record and that he had answered in the negative.
Again, I am not a lawyer but I think a lawyer can make an argument that the claim of being married or single is statutarily irrelevant for the B1/B2 visa since there is no statute or regulation that governs the grant or denial of such a visa based on marriage. B1/B2 visas are routinely granted to both married/single and divorced individuals. Whether the argument is successful or not depends on the judge and the government's counter argument where they have to show that had they known that the applicant was single, the visa would have been denied or it would lead to a line of inquiry that would have led to disqualifying facts.
However, like I said the biggest problem is to prove that OP was not married before. The burden of proof is on OP as this would make his current marriage a bigamy (if not divorced) which is an expressly disqualifying fact. This opens up a can of worms. Suppose OP has named Jill Smith as his wife on DS160, how can he prove that she was not really is wife during the time and he was really single? Was he lying then or is he lying now? The question of materiality will come into play ONLY AFTER it is proved that OP was actually single and unmarried before he married his current wife. Only after OP proves that he did not engage in a bigamous relationship, then the courts will try to find if his previous misrepresentation was material or not. Hence I agree with @SusieQQQ that based on other cases it will be a tough nut to crack - I am assuming the other cases had a hard time proving the single status in the first place.