The four statutory elements of INA §245(e)(3)
The bona fide marriage exception requires clear and convincing evidence establishing that:
- The marriage was entered into in good faith;
- The marriage complied with the law of the place where it occurred;
- The marriage was not entered for the purpose of procuring the beneficiary's admission as an immigrant; and
- No prohibited fee or other consideration was given for filing the petition, apart from legitimate attorney assistance.
Did the spouses intend to establish a real marital life together when they married?
The Clear and Convincing Standard
INA §245(e)(3) requires a heightened level of proof. The applicant must do more than satisfy the ordinary preponderance standard used in many immigration benefit determinations.
The central factual issue is the spouses' intent when they married. Later conduct can help prove that original intent, but no single document automatically establishes or defeats the exception.
This page focuses on the legal requirements and exemption procedure. For the detailed evidence analysis, including courtship records, residence, finances, taxes, children, insurance, communications, affidavits, separate residences, separation and inconsistencies, see Clear and Convincing Evidence for Marriages During Removal Proceedings.
The written INA §204(g) exemption request with Form I-130
Current 8 C.F.R. §204.2(a)(1)(iii)(A) requires the petition-stage exemption request to be made in writing.
The submission should clearly state:
- That the marriage occurred during proceedings;
- The relevant commencement date;
- The marriage date;
- That the petitioner requests the INA §245(e)(3) bona fide marriage exception to §204(g);
- The applicable clear and convincing evidence standard; and
- How the submitted exhibits satisfy that standard.
The regulation does not require a separate application or fee for the §204(g) bona fide marriage exemption request.
The written §245(e) request with Form I-485
Current 8 C.F.R. §245.1(c)(8)(iv) requires the adjustment-stage request to be made in writing and submitted with Form I-485.
The request should:
- Identify the statutory restriction;
- State the basis for the exemption;
- Reference the approved I-130 where applicable;
- Identify the evidence establishing the bona fide marriage; and
- Explain why the clear and convincing standard is satisfied.
An approved I-130 under §204(g) is primary evidence for the I-485 exception
Current 8 C.F.R. §245.1(c)(8)(v) provides an important procedural benefit.
Where a visa petition based on the same marriage was approved under the bona fide marriage exemption to §204(g), that approval is considered primary evidence of eligibility for the parallel §245(e) adjustment exemption.
The applicant generally is not required to resubmit additional bona fide marriage evidence unless the adjudicator determines that more evidence is needed.
RFE or NOID Involving the Bona Fide Marriage Exception
An RFE or NOID involving INA §204(g) or §245(e) should expressly address the heightened burden and the specific concerns identified by USCIS. The response should distinguish failure to satisfy the proceedings-marriage exception from a separate INA §204(c) marriage-fraud allegation.
For detailed RFE and NOID evidence strategy, see Clear and Convincing Evidence for Marriages During Removal Proceedings.
Bona fide marriage evidence in a motion to reopen
Marriage evidence can also become central when a person seeks reopening of removal proceedings to pursue adjustment.
Under Matter of Velarde-Pacheco, a timely, procedurally proper motion involving a marriage entered after proceedings began can potentially be granted while the I-130 remains pending when the required factors are satisfied.
One of those factors is clear and convincing evidence indicating a strong likelihood that the marriage is bona fide.
VAWA cases and the heightened §245(e)(3) standard
A VAWA self-petitioner may need to prove good-faith entry into the marriage as part of the VAWA classification.
Where that marriage was entered while qualifying proceedings were pending, INA §204(g) can impose the additional §245(e)(3) clear and convincing evidence requirement.
USCIS AAO decisions distinguish the two burdens:
- Good-faith marriage for the underlying VAWA classification is evaluated under the standard applicable to that benefit; while
- The bona fide marriage exception to §204(g) must meet the higher clear and convincing evidence standard.
Detailed Marriage Evidence Strategy
The legal exception and the evidence used to prove it should be kept conceptually separate. Once INA §245(e)(3) applies, the evidentiary record should be built around the history and substance of the relationship rather than merely the number of documents submitted.
See Clear and Convincing Evidence for Marriages During Removal Proceedings for the detailed evidence checklist and preparation strategy.
Frequently asked questions
What is the bona fide marriage exception?
It is the exception in INA §245(e)(3) that permits qualifying marriage-based immigration benefits despite a marriage entered during specified proceedings when the marriage is proven by clear and convincing evidence.
What is the burden of proof?
Clear and convincing evidence. This is a higher burden than the ordinary preponderance-of-the-evidence standard.
Do we need a special USCIS form for the exemption?
No. Current regulations require a written request with the I-130 at the petition stage and a written request with the I-485 at the adjustment stage. No separate exemption application is required.
What evidence does the regulation specifically recognize?
Examples include joint property, joint tenancy, commingled finances, birth certificates of children, third-party affidavits, and other documentation establishing that the marriage was not entered to evade immigration law.
We do not have a joint bank account. Can we still qualify?
Potentially. No single document is mandatory. The complete record must nevertheless clearly and convincingly establish a genuine marriage, and the absence of normal shared documentation should be explained where relevant.
We later divorced. Does that prove the marriage was fraudulent?
No. The focus is the spouses' intent when the marriage was entered. A bona fide marriage can later fail.
Is an approved I-130 enough for the I-485 exemption?
If the I-130 was approved under the §204(g) bona fide marriage exemption, current regulation treats that approval as primary evidence of the parallel §245(e) exemption, although additional evidence can be requested.
Is this the same as INA §204(c) marriage fraud?
No. Section 245(e)(3) is an exception to restrictions triggered by marriage timing. Section 204(c) is a separate petition bar based on qualifying evidence of an actual fraudulent marriage attempt or conspiracy.