If a person in New York submits a green card application and visa petition for a spouse on the basis of marriage and that person has been denied a marriage petition in the past because of a fraudulent marriage, the new petition can be denied as well. However, there could be extenuating circumstances that might allow the new petition to be granted.
INA Section 204(c) appears to be unambiguous in its language. It states that approving a visa petition is prohibited if a previous marriage-based petition has been denied as marriage fraud. In fact, the United States Citizenship and Immigration Services must independently review the original application. The USCIS district director makes the determination and cannot rely on the previous conclusions to reach that determination. Furthermore, new evidence can be considered as well. This means that the person can submit additional evidence showing that the marriage was not fraudulent or evidence indicating that the first adjudicators inaccurately assessed the situation.
People who are in this situation may want to consult an attorney. The attorney may be able to advise as to how this information can best be presented to the adjudicator.
Family immigration and obtaining a green card can be complex. In addition to complications like those above, there could be other issues. For example, in some situations, a foreign national might qualify for a spousal visa and another type of family visa. An attorney might be able to determine which type has a shorter waiting list. An attorney might also be able to keep on top of any changes in the law and assist the person with gathering the necessary documents and paperwork. The changing nature of immigration law can mean that even if other family members have followed a similar path, regulations may have changed since that time.