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U.S. Citizenship and Immigration Services

MATTER OF C-Y-L-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 1, 2017

CERTIFICATION OF CALIFORNIA SERVICE CENTER DECISION

PETITION: FORM I-129F, PETITION FOR ALIEN FIANCE(E)

The Petitioner, a U.S. citizen, seeks the Beneficiary's admission to the United States under the fiance(e) visa classification. 1 See Immigration and Nationality Act (the Act) section 101(a)(15)(K)(i), 8 U.S.C. § 1101(a)(15)(K)(i) (the "K-1" visa classification). A U.S. citizen may petition to bring a fiance to the United States in K-1 status in order to marry that person and must establish, among other things, that the parties have previously met within two years before the date of filing the petition, have a bona .fide intention to marry, and are willing and legally able to conclude a valid marriage in the United States within 90 days of the fiance's admission.

The Director of the California Service Center denied the Form I -129F, Petition for Alien Fiance( e). She concluded that the Beneficiary had previously entered into a marriage for the purpose of evading U.S. immigration laws and that, the petition must therefore be denied under section 204(c) of the Act, 8 U.S.C. § 1154(c), which bars the approval of visa petitions for those found to have engaged in marriage fraud for immigration benefits. The Director then certified the case to us for review.

By way of background, section 204( c) of the Act is part of the greater section 204 of the Act, which is entitled "Procedure for Granting Immigrant Status" and acts to bar the approval of immigrant visa petitions filed on behalf of those who have previously engaged in marriage fraud for immigration benefits. K visas, on the other hand, reside among the many nonimmigrant visas enumerated under section 101 ( a)(15) of the Act. The issue presented, therefore, is whether the "marriage fraud bar'' in section 204( c) pertaining to immigrant visas also applies to K -1 visas notwithstanding their designation with other nonimmigrant visa categories. Upon de novo review, we conclude that it does and will affirm the Director's decision.

I. PROCEDURAL HISTORY

In 2006, the Petitioner filed a Form I-129F (receipt number , listing the same Beneficiary as presented today. The Director denied the petition, holding that section 204(c) barred its approval. We sustained the appeal, concluding that section 204(c) applies only to immigrant petitions, not nonimmigrant ones such as fiance petitions. The U.S. Department of State, however,

1 As the Beneficiary in this case is male, we will use the masculine form ("fiance'') throughout the decision.

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declined to issue the Beneficiary a visa, finding him inadmissible for fraud or misrepresentation of a material fact under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i). The Beneficiary accordingly filed a Form 1-601, Application for Waiver of Grounds of Inadmissibility, which U.S. Citizenship and Immigration Services (USCIS) initially denied. The Beneficiary appealed the denial of his waiver application, conceding in his appeal brief that "[h ]e tried to use a non-bona fide marriage to apply for immigration benefits." The Director reopened the waiver application and approved it on September 28, 2012. Ultimately, however, the Director administratively closed the fiance petition because its validity dates had expired.

In 2013, the Petitioner filed the fiance petition that is before us now. The Director issued a notice of intent to deny the petition (NOID), notifYing the Petitioner that the Beneficiary may have previously engaged in marriage fraud. Specifically, the Director stated that the Beneficiary's ex-wife (a U.S. citizen) signed a sworn statement, which was executed under penalty of perjury, admitting that she was paid $3,500 to marry the Beneficiary for the sole purpose of obtaining him a "green card,'' and that they only met once, never lived together, never consummated the marriage, and never had a spousal relationship. The Director also indicated that the Beneficiary himself had admitted that his previous marriage was fraudulent in his earlier waiver application. In the NOlO, the Director also discussed at length the marriage fraud bar under section 204( c) of the Act and whether it applied to K petitions such as this one. She provided the Petitioner an opportunity to respond as set forth in the regulations. 8 C.F .R. § I 03 .2(b )(8).

The Petitioner submitted a brief response to the NOID, noting that this same issue was raised in the 2006 fiance petition and stating that "the Administrative Appeals Office (AAO) expressly held that INA [Immigration and Nationality Act) Section 204(c) does not apply in these proceedings.'' According to the Petitioner, that decision is "binding[,] valid and final," and, therefore, that 204( c) does not operate to bar her second fiance petition.

In her denial of the petition, the Director pointed out that our decision in the 2006 petition was not binding precedent, nor did it address in detail the precise issues in the current petition. The Director accordingly concluded that our last decision does not compel the approval of the current filing, and denied the petition for the reasons she set forth in the NOID, i.e., that section 204(c) barred it. The Director then certified her decision for our review under 8 C.F.R. § 103.4(a) and provided the Petitioner with the opportunity to submit a brief or other statement. The record does not include any supplemental briefing or evidence from the Petitioner.

For the reasons discussed below, we agree with the Director that the Petitioner's fiance petition is barred from approval under section 204( c) of the Act. We acknowledge that we found otherwise in a previous non-precedent decision, but the Director is correct that our earlier decision does not bind us in future adjudications. See 8 C.F.R. § 103.3(c)_2 We can and do now consider the matter anew and

2 See also USC IS Policy Memorandum PM-602-0086.1, Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) 3 (Nov. I 8, 20 I 3), https://www.uscis.gov/laws/policy-memoranda. ("Non-precedent AAO decisions apply existing law and policy to a unique factual record in an individual case. The decision is binding on the

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de novo, but we are mindful of our obligation to explain why we believe a different course 1s necessary.

II. LAW

A. The Marriage Fraud Bar

The marriage fraud bar has been in existence for over 50 years. Enacted in 1961 and expanded twice, the current section 204( c) bars approval of an immigrant petition filed on behalf of a foreign national who has sought to evade U.S. immigration laws through a sham marriage.3 Section 204(c) in its current form states in relevant part:

[N]o petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States ... , by reason of a marriage determined by the [Secretary of Homeland Security] to have been entered into for the purpose of evading the immigration laws, or (2) the [Secretary of Homeland Security] has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

B. The K Visa

1. The K-1 Fiance Classification

In 1970, Congress established the K-1 visa classification to resolve a dilemma that non-citizens, engaged to U.S. citizens, faced when wanting to enter the United States. Nonimmigrants as a general rule must show they have a foreign residence that they do not intend to abandon, and they are presumed under the Act to be immigrants unless they can do so.4 But fiances coming to the United States cannot make this showing, because they are presumed to (and likely do) intend to

parties to the case but does not create or modify agency guidance or practice.''). 3 The bar was initially located in section 205(c) of the Act and stated, in relevant part, "[N]o 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 ... a nonquota status ... as the spouse of a citizen of the United States, or ... a preference quota status .... " Pub. L. No. 87-301, § 10 (1961). In 1965, Congress moved the bar to its current location in the Act and amended it to cover fraudulent marriages with lawful permanent residents. See Pub. L. No. 89-236, § 4 ( 1965). Congress next expanded the bar in conjunction with other sweeping changes to marriage-based immigration benefits in the Immigration Marriage Fraud Amendments of 1986 ("'!MFA''), Pub. L. No. 99-639. For persons receiving immigration benefits based on a recent marriage, IMF A made U.S. lawful resident status conditional for two years, after which the parties could apply to remove the conditions. !MFA also expanded section 204(c)'s reach to cover attempts to obtain immigration benefits based on a sham marriage, as well as conspiracies and attempts to enter into such a marriage. 4 See section I 0 I (a)( 15) of the Act, supra (every alien is an immigrant except those enumerated under that subsection); see also, e.g., section IOI(a)(l5)(8) of the Act (permitting temporary visitors for business or pleasure who have "a residence in a foreign country which [they have] no intention of abandoning'').

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remain with their U.S. citizen soon-to-be-spouse in this country. Since they could not show the requisite "nonimmigrant" intent, the couple was therefore obliged to marry abroad, after which the U.S. citizen could file an immigrant visa petition on behalf of his or her new spouse, which, if granted, could be used to then apply for an immigrant visa overseas. This meant the couple had to endure the sometimes protracted period for the petition to be adjudicated, sent overseas for consular processing, and for the U. S. Department of State to issue an immigrant visa for the foreign national spouse to finally enter the United States.

Congress accordingly created the K-1 visa classification for the benefit of U.S. citizens (only) to mitigate the impact of these processing times on family unity. The legislative history that accompanies the 1970 law indicates that Congress was "resolving the problem presented by fiancees of U.S. citizens who seek to enter the United States to be married: since they intend to remain permanently in the United States, they cannot qualify as bona fide nonimmigrants and, until married, immigrant visas may not be available to them." H.R. Rep. No. 91-851 at 2752 (1970). Congress understood that U.S. citizens were being forced to travel abroad to marry and then either wait abroad with their new spouse or return alone to the United States to complete the sometimes lengthy immigrant visa process. !d. at 2758. The K classification addressed this situation, allowing the fiance of a U.S. citizen to enter the United States solely to conclude a valid marriage within 90 days of entry, after which he or she could immediately seek adjustment of status from within the United States. Section 101(a)(l5)(K) ofthe Act; see also section 245(d) ofthe Act, 8 U.S.C. § 1255(d).5

2. The K-3 Foreign Spouse Classification

Three decades later, Congress created a related K visa classification for foreign national spouses of U.S. citizens who would otherwise be subject to the "immigrant intent" bar.6 With this "K-3" visa, a U.S. citizen can marry a foreign national abroad and file an immigrant visa petition (Form 1-130, Petition for Alien Relative) with USCIS, after which the non-citizen spouse can join the U.S. citizen spouse in the United States to await the petition's processing. When the petition is approved, the spouse may apply to adjust his or her immigration status to that of a lawful permanent resident. Section 101(a)(15)(K)(ii) ofthe Act. 7

With both the K-1 (fiance) and K-3 (spouse) nonimmigrant visas, Congress sought to help couples unite sooner in the immigration process and thereby promote family unity. We will discuss in further detail below how this related but distinct immigration path between the K-1 and K-3 visas

5 Initially, K visa beneficiaries had an adjustment of status provision that applied only to them, former section 214( d) of the Act. This provision required the Attorney General to record a beneficiary's ''lawful admission for pennanent residence'' upon a showing that the marriage took place within the requisite time period, the beneficiary was otherwise admissible to the United States, and the required fees had been paid. As discussed later, Congress later amended this adjustment mechanism, which, interestingly for our case, resulted in some statutory dissonance that required a non-plain language statutory interpretation to resolve. See, e.g., Matter (?{Sesay, 25 I&N Dec. 431 (BIA 20 II). 6 See The Legal immigration Family Equity (LIFE) Act, Pub. L. No. I 06-553, § II 03(a) (as amended 2000). 7 The children of both classes of K-1 and K-3 beneficiaries are eligible for derivative visa classification under section I 0 I (a)(l5)(K)(iii) ("K-2'' and "K-4" visas, respectively). See 8 C.F.R. § 214.1 (a)(2).

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informs our evaluation of the interplay between the K -1 fiance visa and the section 204( c) sham marriage bar.

III. ANALYSIS

We begin our analysis with the plain language and structure of the Act, which we acknowledge at first blush suggests that the 204( c) bar, which applies only to immigrant visa petitions, does not attach to K -1 visas, because the latter are enumerated among the nonimmigrant visa classifications in section 101(a)(15) of the Act. Section 204(c) is found in a section entitled "Procedure for Granting Immigrant Status," which immediately follows the list of immigrant classifications in section 203, titled "Allocation of Immigrant Visas." Section 101 ( a)(15) of the Act, on the other hand, begins by stating that "[t]he term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens", which includes the K visa classification (emphasis added). Left at that, it would appear that section 204( c) does not apply to the K fiance visa because the latter is found with the other nonimmigrant visas, and section 204( c) is included in the part of the statute dealing solely with immigrant visas. 8 And, indeed, we concluded as much in the earlier non­precedent decision the Petitioner cites.

But, upon further examination of the statutory framework and legislative history pertaining to K -1 visas and the marriage bar, we do not believe that this interpretation is consistent with Congress' clear, long standing intent to bar non-citizens who engage in marriage fraud from immigrating to the United States. Courts have recognized narrow exceptions to the plain meaning interpretation that can apply in "exceptionally rare" circumstances. One example is when such an interpretation produces an outcome that is "demonstrably at odds with clearly expressed congressional intent to the contrary," and another is when the result would be an absurd outcome. See Tiscareno-Garcia v. Holder, 780 F.3d 205, 208 (4th Cir. 2015); see also Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in judgment) (when interpreting statutory language that produces an absurd result, it is appropriate "to observe that counsel have not provided, nor have we discovered, a shred of evidence that anyone has ever proposed or assumed such a bizarre disposition"); Si Min Cen v. Attorney General, 825 F.3d 177, 192 (3d Cir. 2016) ("we do not approach statutory construction as a myopic exercise, but rather as a holistic endeavor in which we 'interpret the statute "as a symmetrical and coherent regulatory scheme," and "fit, if possible, all parts into an harmonious whole."'") (Citations omitted).

A. The Plain Language Approach Stymies Congressional Intent and Yields Absurd Outcomes

And, in order to harmoniously interpret the statute, we believe that 204( c) of the Act cannot be read to exclude K-1 fiances from the fraudulent marriage bar, requiring us to look further than the statute's plain language. In doing so, we first consider Congress' longstanding and continuing efforts to combat marriage fraud, including in the K-1 visa context, as we discuss further below. Second, there is no

8 We note that section 204( c) of the Act begins "no petition shall be approved" if a foreign national has engaged in marriage fraud for immigration benefits, but we do not read this so expansively as to mean any petition for an immigration benefit whatsoever. Instead, as we point out below, we believe 204(c) by its role and placement in the statutory framework applies only to individuals seeking to immigrate to the United States pennanently.

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doubt that K-3 spouses who have previously engaged in marriage fraud are barred under section 204(c), and not a shred of evidence exists that Congress could have intended to exempt similarly situated fiances (K-1 ). Finally, we explore BIA and federal court decisions that reconcile other K -related incongruities by rejecting plain language interpretations with irreconcilable results.

1. To Combat Marriage Fraud, Congress Channels Its Efforts Through the 204(c) Bar

For more than 50 years, Congress has channeled its efforts to combat marriage fraud through the 204(c) bar, expanding it to cover sham marriages with lawful permanent residents (1965) and attempts and conspiracies (1986). The legislative history evinces Congress' goal to permanently bar U.S. immigration benefits to those who earlier sought such benefits through a sham marriage. For example, the House Report relating to the 1986 IMF A bill strengthening marriage fraud deterrence describes broadly the purpose of adding attempts and conspiracies to the 204( c) bar: "[This] bill perpetually bars from immigrating to the United States any alien who has conspired to engage in a fraudulent marriage or who has attempted to obtain an immigration benefit on the basis of such marriage." H.R. REP. 99-906 at 1 (1986) (emphasis added). Congress clearly understood that non­citizen fiances travel to the United States to immigrate with a K-1 visa; that was the whole reason for its creation in 1970. It would frustrate the statutory framework designed to combat marriage fraud -and Congress' expressed purpose in creating it - to conclude that non-citizen fiances are shielded from the marriage bar simply because of the K-1 visa's technical placement in the list of nonimmigrant classifications.

Congress also explicitly focused on marriage fraud in the K -1 visa context when it enacted IMF A and expanded the bar. In that legislation, it eliminated the part of former section 214( d) of the Act that allowed for the non-discretionary adjustment of status for K -1 visa holders upon a simple showing of admissibility, a valid marriage to the petitioning U.S. citizen within 90 days of entry, and the payment of the proper fees. Instead, it created a new section 245( d) of the Act that brought fiance adjustments of status into line with other kinds of adjustment and specified that the new two­year conditional status that IMF A placed on non-citizen spouses applied equally to fiances. IMF A §§ 2(c), 3(a)-(c), 100 Stat. at 3542. (It also required the spouses to have met in person within the two-year period prior to the marriage to deter "mail order brides.") See S. Rep. No. 99-491 at 9 (1986). While these amendments focus on ensuring the integrity of the marriage of the U.S. citizen K-1 petitioner and foreign national fiance beneficiary, they underscore the anomaly of any Congressional intent to permit the latter to immigrate to the United States notwithstanding his or her prior marriage fraud.

2. The K-1 Visa is Effectively an Immigrant Visa

For most family-based immigration, the U.S. citizen (or lawful permanent resident) petitioner files a Form I-130, Petition for Alien Relative. When that petition is approved, the foreign national beneficiary can apply for an immigrant visa overseas which, if approved, will allow the beneficiary to enter the United States in lawful permanent resident status. (If in the United States, the beneficiary applies to adjust to that status, which has certain requirements regarding, for example, the lawfulness of the

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beneficiary's entry into this country). While the K -1 visa dispenses with the need for the F orm-130 petition, K -1 s have all the other earmarks of an immigrant visa: consular officers process them as such overseas, and the express intent of the U.S. citizen petitioner and foreign national beneficiary to a K-1 petition is for the beneficiary to immigrate to the United States on the basis of an imminent marriage to the petitioner. In fact, State Department regulations expressly require a consular officer to examine a K-1 fiance beneficiary as if that person were an applicant for an immigrant visa. 22 C.F.R. § 41.81 (d) ("Eligibility as an immigrant required. The consular officer, insofar as is practicable, must determine the eligibility of an alien to receive a [K -1] nonimmigrant visa as if the alien were an applicant for an immigrant visa ... "). And the State Department also instructs consular ot1icers to "direct the interview to determine eligibility as if the alien were applying for an immigrant visa in the immediate relative category"). 9 FAM 502.7-5(C)(4)(b) (CT:VISA-163; 08-25-2016). Given that the purpose of the visa is to facilitate the beneficiary's immigration to the United States, its technical designation in the nonimmigrant category is of far less moment than its operation and the status it confers. And, as we will see below, it is not the designation ofthe K-1 visa in section 101(a)(15) of the Act that would cause it to skirt the 204( c) marriage bar; it is the operational fact that an I-130 petition is not necessary, since the bar would clearly attach to that petition and preclude its approval (just as it does with the K-3 petitions).

3. Barring Spouses (K-3) but Exempting Fiances (K-1) Would Be an Absurd Result.

The absurdity of a plain language construction comes into further focus when we juxtapose the disparate outcomes for the two related K visa classifications for fiances and spouses. Congress created both kinds of K visas to speed family unity for U.S. citizens and their foreign national fiances and spouses during immigration processing. Both are found listed in the nonimmigrant classifications in section 101(a)(15) ofthe Act, although both exist to facilitate immigration by persons intending to immigrate to the United States on the basis of either an existing marriage to a U.S. citizen or one that is soon to occur. Both visa classifications are requested on the same form (Form I-129F, Petition for Alien Fiance(e)). The primary difference is that a K-3 visa petitioner must show that he or she has filed a Form I-130 immigrant visa petition on behalf of their foreign national spouse; only then may that person be accorded K-3 status to enter the United States to await the adjudication of the petition. But the 1-130 is an immigrant petition, and therefore clearly subject to the section 204(c) marriage bar. If a K-3 beneficiary were subject to the marriage bar, that person might be able to enter the United States in K-3 status, but the 1-130 petition would later be denied on the basis of the beneficiary's earlier marriage fraud. In that case, the K-3 beneficiary would then lose that status and be obliged to depart the United States. Section 214(r)(3) of the Act, 8 U.S.C. § 1184(r)(3). By contrast, the K-1 fiance applies directly for adjustment of status after consummating the marriage to the U.S. citizen petitioning spouse. 8 C.F.R. § 214.2(k)(6)(ii). Without an I-130 petition as part of the process, there is no clear application ofthe 204(c) bar as there is with K-3 spouses, and indeed with every other kind of immigrant visa petition.

We cannot conclude that Congress intended for someone implicated in marriage fraud to evade 204(c)'s marriage fraud bar simply by seeking a K-1 fiance visa (for yet another marriage), while someone who applies for a K-3 spouse visa would be so barred simply for the operational reason that

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the K-3 spouse's administrative path includes an I-130 immigrant petition, while the K-1 fiance does not. Nor is it logical that Congress intentionally placed foreign national fiances in a better position than spouses and thereby created a path that any fraud-inclined couple could easily follow. Nor does any evidence exist at all to even suggest that Congress so intended. See Green v. Bock Laundry Machine Co., 490 U.S. at 527. To the contrary, all indicia point to the fact that, for those who have committed marriage fraud, Congress sought to bar immigration; operational technicality of the visa classification is not the bar's touchstone. H.R. REP. 99-906 at 1, supra, (noting that IMF A "perpetually bars from immigrating to the United States" any alien who has engaged in a conspiracy or attempt to engage in a fraudulent marriage for an immigration benefits (in addition to those who have actually done so)).

B. Case Law Resolving Similar Anomalies in the K Visa Classification to A void Absurd Results

We are not aware of cases in which the Board of Immigration Appeals (the Board) or federal courts have addressed this particular issue regarding K -1 visas and the 204( c) marriage bar. But the Board and at least two circuit courts have grappled with related K visa issues and eschewed the traditional plain language canon of statutory construction to avoid absurd results and give proper effect to Congress' intent. The first such scenario also arose from the fact that K -1 fiances do not need an I-130 immigrant petition to be filed on their behalf, and turned on how this squares with the general requirement that an immigrant visa be immediately available in order to be eligible for adjustment of status.9 As noted above, under former section 214(d) of the Act, K-1 visa beneficiaries adjusted their status after entering the United States and consummating their marriage to the petitioning U.S. citizen upon a showing of admissibility and payment of fees. And this adjustment provision was mandatory upon that showing. In IMF A, however, Congress eliminated former section 214( d) and replaced it with the current section 245( d) of the Act, which, as relates to K visa holders, primarily ensured that these beneficiaries were also subject to IMF A's new two-year conditional residence requirement. But it also had the effect of making K-1 beneficiaries subject to the general provisions of section 245 of the Act as well.

In Matter ofSesay, 25 I&N Dec. 431 (BIA 2011), the Board confronted the question ofhow a K-1 beneficiary could adjust his or her status without possession of an immigrant visa when section 245 of the Act clearly requires that one be immediately available. In concluding that K-1 beneficiaries could adjust their status notwithstanding this fact, the Board said:

Despite incorporating fiance(e) adjustments into section 245, Congress did not alter the prior procedure through which fiance(e)s were admitted to the United States on a

9 The general adjustment provision, section 245(a) ofthe Act, 8 U.S.C. § 1255(a), states in pertinent part: ·'The status of an alien who was inspected and admitted or paroled into the United States ... may be adjusted by the [Secretary of Homeland Security], in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (I) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is .filed." (Emphasis added).

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nonimmigrant visa or specify a mechanism through which the fiance( e) could satisfy the "immigrant visa" requirements of section 245(a). To avoid the absurdity of rendering the provision completely unavailable to fiance( e) entrants, we construe the statute to allow fiance( e )s to continue to adjust status, even though they cannot satisfy the literal terms of sections 245( a)(2) and (3 ), which require immigrant visa eligibility and availability.

In the second scenario, two courts of appeals rejected a plain language interpretation to avoid a disparate result between K-4 children beneficiaries (the children of K-3 spouses) and their K-2 counterparts (the children ofK-1 fiances). A K-3 beneficiary's child who is under the age of21 may enter the United States in lawful K-4 status, but must ultimately be the beneficiary of a Form 1-130 petition filed by their soon-to-be United States citizen stepparent. And to qualify as that person's stepchild, they must be under the age of 18 at the time of the marriage creating the step-relationship. So a foreign national may enter the United States in lawful K-4 status, but ultimately not qualify for an immigrant visa because they have aged out of that classification. K-2 children derivatives, however, do not require an 1-130 immigrant visa petition or a qualifying step-child relationship, but can instead apply to adjust status upon their parents' timely marriage to the U.S. citizen.

Applying the plain language of the relevant provisions, the Board upheld this disparate derivative framework in Matter of Akram, 25 I&N Dec. 874 (BIA 2012). The Board noted that the legislation was intended to help foreign nationals who were awaiting the sometimes-lengthy adjudication oftheir 1-130 visa petitions, stating that: "Nothing in the LIFE Act or its legislative history supports a conclusion that an alien should be permitted to enter the United States to await approval of an 1-130 and then be able to adjust when the visa petition is denied." !d. at 879.

But the Seventh Circuit reversed. Akram v. Holder, 712 F.3d 853 (7th Cir. 2013). The court observed that if the appellant's mother had married her U.S. citizen husband in the United States (i.e., entered as a K-1), as opposed to abroad (K-3), "in all likelihood, [the appellant would] already be a lawful permanent resident" because no Form 1-130 would have been filed. !d. at 857-58. Relying on its view of congressional intent and the purpose of the K classification, the court rejected the government's "plain statutory language" argument and found "no statutory reason for treating K-2s and K-4s so differently." !d. at 863.

The Third Circuit recently agreed, declining the same plain language construction to avoid interpreting the statute "in a way that would render [it] absurd." Si Min Cen v. Attorney General, 825 F.3d 177, 194 (3rd Cir. 20 16). The court concluded that a plain language reading of the adjustment of status provision at section 245(d) of the Act "would transform K-4 visas for older K-4 children into nothing more than tourist visas, giving their holders only a glimpse of what life with the families might have been like in America before being sent home because they are legally incapable of fulfilling [section 245(a)'s visa availability] eligibility requirement. Such a reading defies common sense." !d. at 195.

We believe these decisions make clear that the K visa category is unique and presents adjudicators and courts with significant interpretive challenges. While not directly controlling today's factual scenario,

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these cases bolster our confidence that this case, too, is one of those exceptionally rare circumstances where we must look beyond the plain language and structure of the 204( c) bar to give effect to Congressional intent and avoid an absurd result.

IV. CONCLUSION

The K visa category is a kind of immigration platypus: it is found in the nonimmigrant visa category, but explicitly allows for immigration to the United States in the interest of family unity. Both the Board and the federal courts of appeals have grappled with the interplay of the K visa petitions with other sections of the Act, and have often refused to employ a simple plain language approach. We believe the same factors are at play here, and likewise look to the overarching statutory framework and evidence of Congressional intent. We conclude that the K-1 visa classification does not allow a foreign national who, as here, has committed marriage fraud for immigration benefits to escape the long-standing immigration bar in section 204( c) of the Act. Under these circumstances, we agree with the Director and conclude that section 204( c) bars approval of the instant fiance petition.

ORDER: The Director's decision is affirmed.

Cite as Matter <~[C-Y-L-, ID# 59976 (AAO Nov. 1, 2017)

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