McKEE

Interim Decision #2782




                                 MATTER OF MCKEE

                           In Visa Petition Proceedings
                                      A-22354345
                        Decided by Board March 11, 1980
(1) A fraudulent or sham marriage that is entered into for the primary purpose of
  circumventing the immigratian laws does not enable an alien spouse to obtain immigration benefits.
(2) Where the parties enter into a valid marriage, and there is nothing to show that they
  have since obtained a legal separation or dissolution of that marriage, a visa petition
  filed on behalf of the alien spouse should not be denied solely because the parties are
  not residing together.
(3) Although the separation of spouses in and of itself is not a valid basis for denial of a
  visa petition based upon a determination that the marriage is not viable, a separation
  is a relevant factor in determining the parties' intent at the time of their marriage,
  i.e., whether the marriage is a sham.
ON BEHALF OF PETITIONER: David M. Doering, Esquire
                                1256 Clarkson Street
                                Denver, Colorado 80218
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members


  The petitioner has appealed from the decision of a District Director,
dated December 12, 1978, denying the visa petition filed on behalf of
the beneficiary as his spouse under section 201(b) of the Immigration
and Nationality Act, 8 U.S.C. 1151(b). The record will be remanded.
  The petitioner, a 24-year-old United States citizen, married the
beneficiary, a 25 year old native and citizen of Australia, on August 12,
                    -      -


1977 in Pensacola, Florida. On October 12, 1977, the petitioner filed a
visa petition on the beneficiary's behalf, seeking to accord her immediate relative status. In his decision, the District Director found
that the parties had separated, and, on that basis, he denied the
petition. On appeal, the petitioner has raised several arguments in
support of his claim that the District Director erred in considering the
unsworn statement of the beneficiary that she and the petitioner had
separated, in not affording the petitioner an opportunity to rebut this
adverse evidence, and in considering the separation of the parties as a
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valid basis upon which to deny the petition.
  In connection with the petitioner's last argument, we requested the
position of the Immigration and Naturalization Service on April 24,
1979. In a memorandum dated June 22, 1979, the Service indicated
their agreement with the rationale of the recent decision of Chan v.
Bell, 

 (D. D.C. 1978), thereby accepting the court's
ruling that, where the parties to a marriage were living apart, but
there was no contention that the marriage was a sham at its inception
in that it had been entered into for the purpose of evading the immigration laws, the Service could not deny the visa petition solely
because the parties were no longer living together.
  In the past, this Board has held that a visa petition would only be
approved where the petitioner established that he and the beneficiary
had entered into a bona fide marriage which is presently viable and
ongoing. See Matter of Mintah, 15 I&N Dee. 540 (BIA 1975). We found
support for our position in the Congressional objective of preservation
of the family unit through the immigration laws. See generally Matter
of Lew,

 (D.D. 1965). A marriage that is entered into for
the primary purpose of circumventing the immigration laws, referred
to as a fraudulent or sham marriage, has not been recognized as
enabling an alien spouse to obtain immigration benefits. See Lutwak v.
United States, 344 T.T..S. 604 (1953); MeLat v. Longo, 

 (D.
V.I. 1976); Matter of M—, 

 (BIA 1958); see generally Johl
v. United States, 

 (9 Cir. 1967). However, we have always
recognized that a fraudulent or sham marriage is intrinsically different from a nonviable or nonsubsisting one, see, e.g., Matter of Rahmati,

 (BIA 1978), although we have denied visa petition
approval in both instances.
  Chan v. 

 involved an appeal from the denial of a visa
petition filed by a United States citizen petitioner on behalf of her
husband. The parties in that case had known each other for several
years prior to their marriage on January 10, 1975. The couple lived
together for several months subsequent to their marriage during
which time they jointly purchased property. In July 1975, they separated, but continued an amicable relationship and their joint property
ownership. In May 1976, the petitioner informed the District Director
by letter that she and her husband had separated. Based upon this
separation, the District Director denied the visa petition on June 14,
1976. A subsequent appeal to the Board was denied on November 9,
1977.
  In its decision, the Chan court characterized the Attorney General's
role in the adjudication of immediate relative visa petitions under
section 201(b) of the Act as "limited: he is required to approve any true
petition of a spouse of an American citizen in order that such spouse
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may secure immediate relative status." 

. Compare Menezes v.
INS 

 (9 Cir. 1979). See also Dabaghian v. Civiletti, 

 (9 Cir. 1979). The court noted that, at the time the visa petition
was filed, the parties were lawfully married and that no divorce or
legal separation had taken place, nor had any proceedings for divorce
or legal separation been instituted. The court then went on to state its
reasons for rejection of our decision affirming the District Director's
denial of the visa petition based upon our characterization of the
Chans' marriage as "nonviable."
 The Chan court addressed the distinction between a sham and a
nonviable marriage, recognizing that the Service is not precluded
"from refusing to recognize fraudulent marriages." Id. at n. 8. However, the court found no support in the statute or regulations for our
refusal to approve a visa petition based on a finding that the parties to
a valid marriage did not have a subsisting relationship. We find the
reasoning of the court's decision in this regard persuasive.
  In the present case, the DiStrict Director denied the visa petition
based upon his determination that-
                                                  [lit must be established that a viable marriage exists both at the time of filing of the
  petition and at this time. On October 16, 191S, the beneficiary of the petition related to
  an officer of this Service that you and she were no longer residing together as man and
  wife.
He, therefore, based his denial of the petition on the sole basis that the
parties were not residing together. The record indicates that the
parties entered into a marriage valid under the laws of Florida, the
plage of celebration; there is no evidence that they have since obtained
a legal separation or dissolution of that marriage under the laws of any
state. Accordingly, we find that it was error for the District Director to
deny the instant visa petition based solely on the separation of the
parties. To the extent the Matter of Mintah, supra, indicates otherwise,
it is hereby modified.
   However, it is important to recognize that, although a separation in
and of itself is no longer a valid basis for denial of a visa petition based
upon a determination that the marriage is not viable, it is a relevant
factor in determining the parties' intent at the time of their marriage,
i.e., whether the marriage is a sham. See Bark v. INS, 

 (9
Cir. 1975). In Bark, the court held that a marriage was a "sham" if "the
bride and groom did not intend to establish a life together at the time
they were married." 

. The court there found that the
duration of a separation is relevant, but not dispositive, on the issue of
intent, stating that—
  Conduct of the parties after marriage is relevant only to the extent that it bears upon
  their subjective state of mind at the time they were married. Evidence that the parties
  separated after their wedding is relevant in ascertaining whether they intended to

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  establish a life together when they exchanged marriage vows. But evidence of separation, standing alone, cannot support a finding that a marriage was not bona fide when
  it was entered.. .. Of course, the time and extent of separation, combined with other
  facts and circumstances, can and have adequately supported the conclusion that a
  marriage was not bona fide.

 (citations omitted). See also Matter of Phillis,

 (BIA. 1975).
  In the present case, no determination has been made regarding the
parties' intent at the time of their marriage. Additionally, there is go
evidence concerning the present status of the petitioner's marriage,
i.e., whether the parties are legally separated or have dissolved their
marriage, nor has there been compliance with the regulation requiring
the Service to give the petitioner an opportunity to rebut any adverse
evidence before rendering a decision. See 8 C.F.R. 103.2(b)(2); Matter of
Holmes, 

 (BIA 1974). Accordingly, we will remand the
record for further consideration and the entry of a new decision. Sec
generally Matter of To, 

 (BIA 1974). The petition c
should be given an opportunity on remand to submit any additional
evidence he may have in support of the petition. •
   ORDER, The record is remanded.