DIXON

                                                           Interim Decision #2615




                                MATTER OF DIXON
                            In Deportation Proceedings
                                      A-20262126

                     Decided by Board September 15, 1977
(1) Respondent was admitted to the United States under section 301(a)(15)(K) of the
  Immigration and Nationality Act as the fiancee of a U.S. citizen. Within 90 days of entry
  she contracted a lawful marriage with the United States citizen which had become
  nonviable at the time she applied for recordation of lawful admission for permanent
  residence under section 214(d) of the Act. The District Director denied recordation on
  the ground that respondent's marriage was no longer viable.
(2) A nonviable or terminated marriage does not bar an applicant from section 214(d)
  benefits if she can establish that she entered into a lawful marriage with the petitioning
  fiance within 90 days after entry and she is not within any of the classes of individuals
  who are excludable from admission under section 212 of the Act.
(3) Since lawful permanent residence is accorded a section 214(d) applicant as an immediate relative. and the marriage, whether viable or not, is sufficient basis to accord
  that status, the labor certification requirements of section 212(a)(14) of the Act should
  not be made a part of the consideration in determining whether an applicant is "otherwise admissible" for purposes of section 214(d) of the Act under the circumstances of
  this case.
(4) Matter of Harris, Interim Decision 2336 (BIA 1974) overruled.
CHARGE:
  Order: Act of 1952—Section 241(n)(2) [S U.S.C. 1251(a)(2)]—Nonimmigrant-- remained
                       longer than permitted
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 Carolyn J. Biermann, Esquire                            Mary Jo Grotenrath
 4484 West Pine Boulevard ,                              Appellate Trial Attorney
 St. Louis, Missouri 63108

BY: Milhollan, Chairman; Wilson, Maniatis, Applernan, and Maguire, Board Meinbers


  The respondent has appealed from the September 28, 1976, decision of
the immigration judge in which he found her deportable as charged,
denied her motion to terminate deportation proceedings, and granted
her voluntary departure. The appeal will be sustained and the proceedings will be terminated.
  The respondent, a native and citizen of the Philippines, was admitted

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to the United States as a K-1 nonimmigrant fiancee on February 27,
1974. She married her United States citizen fiance within the 90-day
period required by sections 101(a)(15)(K) and 214(d) of the Immigration
and Nationality Act. On December 13, 1974, the respondent filed an
application for recordation of lawful admission for permanent residence
pursuant to section 241(d) of the Act. That provision provides that:
  In the event the marriage between the said alien and the petitioner shall occur within
  three months after the entry and they are found otherwise admissible, the Attorney
  General shall record the lawful admission for permanent residenee of the alien and
  minor children as of the date of payment of required visa fee.

   In Service interviews pertaining to the application, the respondent
admitted that her marriage to Mr. Dixon had quickly deteriorated to a
point beyond salvaging, that she had ceased living with her husband on
June 19, 1974, and that she did not intend to return to him. On the basis
of this testimony, the Acting District Director concluded that the applicant's marriage was no longer viable and denied recordation, citing our
decision in Matter of Harris, Interim Decision 2336 (BIA 1974).
   In Harris, we concluded that the standard of marriage should be the
same in applications for recordation of lawful admission for permanent
 residence under section 214(d) and in applications for adjustment of
 status under section 245. As a consequence, we held that "neither a
 nonviable marriage nor a terminated marriage will support section
214(d) recordation of lawful admission for permanent residence, and
 that, just as a marriage must exist in fact as well as in law for it to
support adjustment of status pursuant to section 245, so must it exist to
support recordation of lawful admission for permanent residence pursuant to section 214(d)." Harris, at 5.
    At her deportation hearing and again on appeal, the respondent
contests departability by challenging the denial of relief under section
214(d). She has renewed her application for recordation before the
immigration judge, pursuant to 8 C.F.R. 245.2(d).
    The respondent contends that our decision in Harris is an invalid
construction of section 214(d) because in imposing the "viability requirement," we have placed greater restrictions on an alien fiancee than
are set out in the statute. It is the respondent's position that section
21-4(d) requires 'only that the alien fiancee enter into a lawful marriage
with the citizen petitioner within 90 days of entry and that the alien be
found otherwise admissible. According to the respondent's argument, if
compliance with these requirements is established, the Attorney Genera! is required to record the alien's lawful admission for permanent
residence. The Immigration and Naturalization Service joins the respondent in urging this interpretation. We note, moreover, that the
Service has adhered to this position since 1972. See Matter of Blair, 14
I. q& N. Dee. 153 (R.C. 1972); Matter of Hays, 

 (D. D. ,

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                                                            Interim Decision #2615

R. C. 1972); see also the dissenting opinion in Matter of Harris, Interim
Decision 2336 (BIA 1974).
   After careful consideration of the arguments advanced in the respondent's excellent brief, we have concluded that the viability requirement,
which is applicable in section 245 proceedings, is not relevant in applications for benefits under section 214(d). While the regulation, 8 C.F.R.
245.2(d), requires the filing of an application for permanent resident
status pursuant to section 214(d) to be made on Form 1-485, and is
included in the regulations generally relating to adjustment of status, it
is in fact adjustment under a separate and distinct provision of the
statute, carrying its own requirements, and having no relationship to
the requirements of section 245. Thus, a nonviable or terminated marriage does not bar an applicant from section 214(d) benefits, if she can
establish that she entered into a lawful marriage' with the petitioning
fiance within 90 days after entry and that she is otherwise admissible. 2
                          Matter of Harris, Interim Decision 2336 (BIA Henc,wshalovru
1974) and shall endorse the Service's decisions in Matter of Blair, supra,
and Matter of Hays, supra.
  The record indicates that the respondent entered into the planned
marriage within 90 days of her arrival—there is no suggestion that the
marriage was legally invalid or fraudulent—the respondent appears
otherwise admissible. The statute is satisfied; recordation is required.
Hence, the lawful admission of the respondent for permanent residence
shall be recorded and deportation proceedings against her will be terminated.
   ORDER: It is ordered that the respondent's application for status as
a permanent resident under section 214(d) of the Immigration and
Nationality Act be granted and deportation proceedings against her be
terminated.

     For immigration purposes, the validity of a marriage is judged not only by the law of
the place of celebration, but also by the intentions of the parties involved. Thus, even if
individuals enter into a legally binding ceremonial marriage, the relationship will not be
recognized for immigration purposes if it was contracted solely for the purpose of obtaining immigration benefits. See Lutwak v. INS, 

 (1953); Johl14U.S., 370 F-2d
174 (9 Cir. 1966); U.S. v. Sacco, 

 (9 Cir. 1970), cert. denied, 

(1970); U.S. v. Lozano 

 (7 Cir. 1975).
   2 The term "otherwise admissible" refers to a finding that the alien is not within any of
the classes of individna Is who are excluded from admission under section 212 of the Act: In
214(d) applications, such as this, which involve a nonviable or terminated marriage, the
alien would normally be expected to secure skilled or unskilled labor in the United States
and would thereby fall within the excludable class set out in section 212(a)(14). We note,
however, that lawful permanent residence is accorded a section. 214(d) applicant as an
immediate relative, a status exempt from the provisions of section 212(a)(14). Since Ave
have concluded that an applicant's marriage remains a basis for section 214(d) benefits,
whether viable or not, we do not believe that the requirements of section 212(a)(14) should
b e made applicable in determining whether the alien is otherwise admissible.

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