A

MA1 1ER OF A—
In VISA PETITION Proceedings
A-11959587
Decided by Board June 1, 1962
Visa petition—Section 205(c), 1952 act, as amended—Effect of revocation of
visa petition based on sham marriage.
Visa petition filed by beneficiary's first wife in 1959 accorded him nonquota
status as the spouse of a United States citizen. In 1961, approval of the
petition was revoked, and on appeal to the Board it was established that
the marriage was contracted for the purpose of evading the immigration
laws. Present petition was filed on behalf of beneficiary by his second wife,.
a United States citizen. In connection with the applicability of section
205(c), as amended by section 10 of the Act of September 20, 1961, it was
argued that beneficiary bad not previcusly been accorded nonquota status
since approval of the prior visa petition had been revoked.
Held: Nonquota status or third preference quota status was conferred upon,
the beneficiary when the visa petition was approved; subsequent revocation
is unimportant. It having been established in 1961 that the marriage was
not bona fide and was entered into for the purpose of evading the immigra-
tion laws, the provisions of section 10 of P. L. 87-301 are applicable to the-
instant petition and it must be denied.

BEFORE THE BOARD

DISCUSSION: The case comes forward on appeal from the order
of the District Director, Los Angeles District, dated February 5,,
1962, denying the visa petition for the reason that the alien benefi-
ciary previously was accorded a nonquota status under section
101(a) (27) (A) of the Immigration and Nationality Act as the
spouse of a citizen of the United States on the basis of a marriage,
which the Attorney General has determined was entered into for
the purpoce of evading the immigration laws; when these circum-
stances exist, the law prohibits the approval of the petition for such
alien.
The petitioner, a native-born citizen of the United States, 14 years
old, female, seeks nonquota status on behalf of the alien beneficiary,
a native and citizen of Portugal, 21 years old. The parties were
married at Saint George, Utah, on December 23, 1961. The peti-
tioner was never married previously, while the beneficiary was mar--
705
r,54:3 7-113-----4 6
 lied once previously, on September 3, 1959, such marriage being
terminated by a decree of annulment obtained by the beneficiary on
December 21, 1961, in the Eighth Judicial District Court of the State
of Nevada in and for the County of Clark, City of Las Vegas.
The record shows that the alien last entered the United States on
January 13, 1959, as a visitor. He was previously the beneficiary of
a prior petition filed by his first wife on December 7, 1959, which
was approved on January 26, 1960, according the beneficiary non-
quota status as the spouse of a United States citizen. The parties
were married at Las Vegas, Nevada, on September 3, 1959, the
petitioner being then 41 years of age, the beneficiary 19. On Janu-
ary 13, 1961, the petitioner was notified that pursuant to 8 CFR
206.2 proceedings were being instituted for revocation of the ap-
proval of the visa petition on the ground that a bona fide husband-
and-wife relationship did not exist between her and the beneficiary
and that, therefore, the marriage could not serve as a basis for the
proper issuance of a nonquota immigrant visa, On July 14, 1961,
the District Director, Los Angeles District, notified the petitioner
that approval of the visa petition was revoked. On appeal to this
Board it was found that the evidence clearly established that the
marriage of the parties was not consummated; that the proposed
beneficiary had never resided with, the petitioner as man and wife;
that the petitioner, in an affidavit executed on December 14, 1960,
stated that she married the beneficiary at the request of his aunt so
that he could remain in the United States. The Board order con-
cluded that there had never been a valid bona fide marriage between
the petitioner and the proposed beneficiary ; that he could not qualify
for nonquota status; and that the marriage contracted between them
could not serve as a basis for the issuance of a nonquota immigrant
visa. The file also discloses that the heneficiary's application for
adjustment of status as a permanent resident pursuant to section 245
of the Immigration and Nationality Act was denied by the District
Director, Los Angeles District, on November 22, 1961, for the reason
that an immigrant visa was not presently available to the benefi-
ciary and his appeal to the Regional Commissioner, San Pedro
Region, was dismissed on December 14, 1961.
The District Director's &vial of the visa petition does not set
forth the provisions of the law which prohibit the approval of the
petition under the circumstances in this case, but such denial must
necessarily he predicated upon section 20Nc) of the Immigration
and Nationality Act, as amended by section 10 of the Act of Sep-
tember 26, 1961, Public Law 87-301, which provides, in part :
Notwithstanding the provisions of this subsection, no petition shall be ap-
proved if the alien previously has been accorded, by reason of marriage oe-
termined by the Attorney General to have been entered into for the purpose
of evading the Immigration laws-

706
 (1 ) a nnwpinta status under section 101(a) (27) (A) as the spouse of a
citizen of the United States. .
This provision of law embodies a two-pronged requirement: (1)
that the alien previously have been accorded a nonquota status
under section 101(a) (27) (A) as the spouse of United States citizen;
and (2) that the marriage, upon which the status was accorded, was
entered into for the purpose of evading the immigration laws. Both
requirements must be established.
Counsel, in his brief, raises this question of whether the benefi-
ciary has been accorded a nonquota status when a prior petition has
been revoked. He argues that the very revocation acts nunc pro tune
to wipe out any possible benefit that the proposed beneficiary of the
prior petition could have had; that the revocation meant that the
proposed beneficiary did not receive any benefit under the immigra-
tion laws by virtue of his prior marriage; that he did not secure any
change of status, or any status from that marriage; that he never
acquired permanent residence in the United States because of a
ioniquota status based on his first marriage.
The issue raised is whether this alien previously has been accorded
nonquota (or third preference quota) status only when he has ob-
tained a change or adjustment of status or has acquired permanent
residence upon the basis of the sham marriage, or whether he was
accorded such status when the visa petition was approved.
The legislative history concerning the various bills' which finally
evolved as S. 2237 was eitau- Letl. as P. L. 87 301 on September 26,
-

1961, sheds very little clarification on this point. In his comments
on H.R. 6300, Congressman Walter explained that section 8(c)
(which contained the same language as embodied in section 10 of
P. L. 87-301) proposed to strengthen the existing law by giving the
Attorney General a new legal instrumentality to counteract the
increasing number of fraudulent acquisitions of nonquota status
through false marriages between aliens and United States citizens,
often prearranged by racketeers; that the Attorney General had
recently reported to the Congress about the increasing number of
such sham marriages indicating the existence of marriage schemers
operating in various parts of the country, particularly on the water
front, and arranging for high fees for deceitful marriages involving,
in most instances, alien seamen. 2 This statement appears almost
without change in the House Report to accompany S. 2237 which was
enacted into P. L. 87-301. 3 Senator Eastland stated that section 10
of the bill was designed to strengthen the provisions GI the Immi-
1S. 1809, H.R. 6671 and H.R. 6300, 87th Congress, 1st Session.
= Congressional Record—House (daily ed. April 13, 1961), p. 5376.
'an. 1086 (87th Congress, 1st Session), pages 36-37; 2 U.S. Code Con-
gressional and Administrative News (237th Congress, 1st Sesluu, 1901), p. 2980.

707
gration and Nationality Act with respect to the exclusion from
entry of those aliens who have entered into the fraudulent marriages
for the purpose of evading the law.'
The legislative history is helpful only to the extent that it ex-
presses dissatisfaction with the provisions of existing law 5 regard-
ing aliens who have entered into fraudulent marriages 'For the pur-
pose of evading the immigration law. It is noteworthy that section
10 of the Act of September 26, 1961, was enacted as an amendment
to section 205(c), and that section 205 of the Immigration and
Nationality Act is entitled "Procedure for Granting Nonquota Status
or Preference by Reason of Relationship " 6 The pertinent regula-
tions, 8 CFR 205.1 and also 8 CFR 299.1, provide that a petition to
accord nonquota status under section 101(a) (27) (A) of the Act or
quota immigrant status under section 203(a) (3) of the Act shall be
filed on a Form 1-130. By reference, the prescribed form becomes
a part of the regulations_ This Form T 130, which is entitled "Peti-
-

tion to Classify Status of Aliens for Issuance of Immigrant Visa"
provides for the Secretary of State to be informed, in the case of
approval of the visa petition by the District Director, that nonquota
status or third preference quota status is granted. Section 205(c)
provides that the Secretary of State shall then authorize the consular
officer to grant the nonquota or preference as'the case may be.
From the foregoing, it is concluded that the nonquota status or
third preference quota status has been conferred upon the beneficiary
when the Form 1-130 has been approved by the District Director.
It would appear to be unimportant that such status may subse-
quently be revoked under the provisions of section 206 of the Immi-
gration and Nationality Act or that the beneficiary may be found
deportable in an exclusion or deportation proceeding on the basis
of a sham or fraudulent marriage. It is concluded that when the
previous petition filed by the beneficiary's prior spouse was approved
for nonquota status on March 15, 1958, he was at that time accorded
nonquota status under section 101(a) (27) (A) as the spouse of a
United States citizen. The first requirement of the amendatory
section 10 of Public Law 87-301 is met.
We have previously outlin€d above the evidence which led to the
revocation of the previously-approved visa petition by the District
Director, Los Angeles District, on July 14, 1961, the appeal being
dismissed on October 13, 1961, by this Board on the ground that
there had never been a valid bor.4 ado marriage between the parties_
This prior adjudication constitutes a determination that the mar-
riage was a sham, entered into to accord the beneficiary nonquota .

4 10T Congresgimul Record—Senate (daily ed. September 15, 1001), p. 13966.
6 Presumably, section 212(a) (19) and section 241(c) of the immigration
and Nationality Act.
6 8 U.S.C.A. 1155.
708
 status or the purpose of evading the immigration laws. The sec-
mid requirement of section 10 of Public Law 87 301 is also satisfied.
-

The prohibition of section 205(c) of the Act, as amended by sec-
tion 10 of tile Act of September 26, 1961, applies to the instant
petition. The appeal will be dismissed.
,ORDER: It is ordered that the appeal be and the same is hereby
.dismissed.
Thomas J. Griffin, Member, Dissenting:

The undersigned hereby dissents from the opinion of the majority.
The facts have been adequately stated in the opinion of the major-
ity and the sole issue upon which the undersigned dissents involves
the construction of section 205(c) of the Immigration and Nation-
ality Act, as amended by 75 Stat. 650 (Sept. 26, 1961).
The majority has held that under section 205(e) the beneficiary
herein had been accorded a nonquota status immediately upon the
approt al of his first wife's petition in his behalf. Counsel for the
petitioner contended on appeal that, a status could not, he accorded
the beneficiary of a petition solely upon the basis of that petition
having been approved. Section 205(c) in pertinent part states as
follows:
After an investigation of the facts in each case the Attorney General shall
. . . approve the petition and forward one copy thereof to the Department of
State. . . The Secretary of State shall then authorize the consular officer
concerned to grant the nonquota immigrant status, quota immigrant status,
or preference, as the case may be. Notwithstanding the provisions of this
subsection, no petition shall be approved if the alien previously has been
accorded, by reason of marriage determined by. the Attorney General to have
been entered into for the purpose of evading the immigration laws—
(1) a nonquota status under section 101(a) (27) (A) as the spouse of a
citizen of the United States, or
(2) a preference quota status under section 203(a) (3) as the spouse of
an alien lawfully admitted for permanent residence. (Emphasis supplied.)
The above-cited section here in issue clearly states that the non-
quota immigrant status, quota immigrant status, or preference is to
be granted by the consular officer concerned upon authorization by
the Secretary of State. There is no indication that the status can
be granted by any other person. The section clearly makes a distinc-
tion between the approval of a petition and the granting of a status
pursuant to such approval. However, the opinion of the majority
apparently attempts to equate eligibility for such status as indicated
by the approval of the petition with the actual granting of such
status. Furthermore, as indicated by the opinion of the majority,
the legislative history concerning the background bills which finally
evolved as Public Law 87-301 sheds little light as to the intention
of the Congress on this particular aspect. of the law. Concededly,

709
the Congress desired to discourage sham marriages entered into for
the purpose of evading immigration laws. However, acceptance of
the construction of the majority would place the beneficiary of a
denied petition in a better position than the beneficiary of an ap-
proved petition despite the fact that both beneficiaries are equally
guilty of being parties to a sham marriage to evade the Immigration
laws. It would appear that inasmuch as section 205(c) makes an
obvious distinction between the approval of a petition and the grant-
ing of a status, then 205(c) (1 and 2) should not apply until the
consular officer has granted the status in the form of the issuance of
a visa. It is my position that approval of the petition is nothing
more than a ministerial recognition of the eligibility for status and
that such finding of eligibility cannot be a sufficient basis for the
denial of an ensuant petition.
In summary, it is the position of the undersigned that section
205(c) clearly distinguishes between the approval of a petition and
the granting of a status and that the mere approval of the petition
(an ex parte procedure as to the alien beneficiary) is insufficient
basis for the denial of a second petition.
Robert E. Ludwig, Member, Dissenting:

I concur in the dissent of Board Member, Thomas J. Griffin.

710