What is Immigration Marriage Fraud
The Immigration and Nationality Act (INA) provides for immigration benefits for the alien spouse of a U.S. citizen. For example, a U.S. citizen may file an immediate relative petition on behalf of his or her alien spouse, which is not subject to an annual cap. The beneficiary of a U.S. citizen’s spousal immigrant visa petition may be eligible for waivers of harsh forms of inadmissibility, such as the 3- and 10-year unlawful presence bars.
For these reasons, many aliens are tempted to enter into what is called a “sham marriage.” This is defined in statute in INA 216(b)(1)(A)(i) as “[a marriage] entered into for sole purpose of obtaining an alien’s admission as an immigrant.” However, the immediate relative category for the spouse of a U.S. citizen is for the bona fide spouse of a U.S. citizen, not for someone who entered into a sham marriage in order to circumvent the immigration laws. For this reason, the immigration laws contain harsh penalties for those who enter into a sham marriage or conspire to enter into a sham marriage for the purpose of circumventing the immigration laws.
When May Marriage Fraud Arise as an Issue
The Department of Homeland Security (DHS) may take action at any time it has evidence that an alien procured or sought to procure status through a sham marriage. However, there are certain points in the family petitioning process when a marriage will be subjected to direct scrutiny from U.S. immigration officials.
The first of these points is of course the petitioning process. In order to secure an immigrant visa for the spouse of a U.S. citizen, the petitioner and the beneficiary must submit evidence establishing the legitimacy of their marriage. Similar evidence is required for K1 visa petitioners (nonimmigrant fiancée visas).
A person who procures status on the basis of marriage will not immediately be a full lawful permanent resident (LPR). Rather, such a person will instead be granted what is called “conditional permanent residency.” The conditions on LPR status run for two years from the grant of status (note that these two years count toward the five-year LPR period for naturalization purposes). A conditional LPR must apply to have the conditions removed from his or her status within 90 days of the expiration of the two-year conditional LPR period. In order to have the conditions removed, the U.S. citizen and his or her conditional LPR spouse must file the application jointly and appear for an interview. In the interview, one of the things that the USCIS will look to determine that the marriage was not entered into for the primary purpose of procuring immigration benefits. There are limited exceptions from the joint filing requirement if the conditional LPR spouse establishes that the marriage was terminated or that he or she was battered or subjected to extreme cruelty by the U.S. citizen spouse (or if the U.S. citizen spouse was in a bigamous relationship), and the marriage was entered into in good faith.
Finally, persons who previously gained status through marriage may be required to establish the bona fides of the previous marriage in order to be subsequently accorded status.
What is a “Bona Fide” Marriage?
The key consideration in determining whether a marriage is bona fide is “whether the bride and groom intended to establish a life together at the time they were married” (see the Matter of Laureano, 19 I&N Dec. 1, 2-3 (BIA 1983)). The Board of Immigration Appeals (BIA) held in the Matter of Peterson, 12 I&N Dec. 663 (BIA 1968) that a marriage need not have all of the ideal “hallmarks” of a marriage in order to be bona fide. For example, whether a marriage was consummated is not necessarily determinative of whether the marriage is legitimate (e.g., see Peterson where an elderly U.S. citizen married a woman because he needed a housekeeper and the marriage was never consummated).
Additionally, merely having considered the immigration benefits in a marriage does not in and of itself render a marriage fraudulent. The primary consideration for adjudicators will be whether the couple intended to establish a life together at the time of the marriage. A marriage will only be considered a sham if the couple entered into it for reasons other than to establish a life together.
Determining the Bona Fides of a Marriage
To start, it is important to note that immigration adjudicators are extremely well-trained and adept in discovering marriage fraud. Although the mere fact that marriage fraud is illegal under U.S. law should be in and of itself a sufficient deterrent, the skill of immigration adjudicators in uncovering marriage fraud and the harsh penalties that follow are further deterrents. Adjudicators look for the following in interviews as mark indicators of marriage fraud:
- Extreme nervousness;
- Over interaction;
- Lateness for interview;
- Answers prompted by attorney;
- Lack of eye contact;
- Evasive or general answers;
- Answers interrupted by attorney or other person present;
- Attorney directs to distract or mislead;
- Over-submission of documents;
- Staged photographs of couple;
- Petition preparer suspected of fraud;
- Suspect documents;
- Documents issued immediately before or after interview;
- Short time between entry and marriage;
- Unusual marriage history;
- Children born during marriage to a different parent;
- Divorce and marriage date close together;
- Unusual or large age discrepancy between spouses;
- Unusual cultural differences between spouses; and
- Previous marriages by U.S. citizens to foreign nationals.
No single factor is necessarily determinative in assessing the bona fides of a marriage. Rather, adjudicators will consider all relevant factors in determining whether a marriage is legitimate. The burden rests with the alien and the petitioner to establish eligibility for immigration benefits deriving from marriage.
When seeking to remove conditions on permanent residency obtained through marriage to a U.S. citizen, regulations in 8 C.F.R. 216.4(a)(5) suggest the submission of the following documentation:
- Documentation showing joint ownership of property;
- Lease showing joint tenancy of a common residence;
- Documentation showing comingling of financial resources;
- Birth certificates of children born to the marriage;
- Affidavits of third parties having knowledge of the bona fides of the marital relationship; or
- Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States.
The best evidence to establish the bona fides of a marriage will depend on the specific circumstances of the marriage and of the two parties. A person seeking to establish the bona fides of a marriage that he or she entered into for legitimate purposes should consult with an experienced immigration attorney for guidance regarding the appropriate documentation that he or she should submit.
Consequences of Marriage Fraud
The INA proscribes severe penalties for those who are found to have committed marriage fraud. Section 204(c) prohibits the approval of an immigrant visa petition on behalf of an alien who was previously found to have entered into a sham marriage or who conspired to enter into such a marriage. No formal finding of a sham marriage or conspiracy to enter into a sham marriage is required to trigger section 204(c). However, adjudicators must have evidence that the alien either previously entered into a sham marriage or conspired to do so.
Section 275(c) of the INA states that an individual who knowingly enters into a marriage for purpose of evading “any provision of the immigration laws” shall be imprisoned for not more than five years, or fined not more than $250,000, or both. However, it is not necessary for purpose of section 204(c) that the person be penalized under section 275(c).
An alien who procures or endeavors to procure immigration status through a sham marriage may be found to be inadmissible for fraud or misrepresentation of a material fact to procure an immigration benefit under section 212(a)(6)(C)(i) of the INA. Under section 237(a)(1)(G), an alien may be found to be removal for being inadmissible for fraud or misrepresentation if he or she procures status on the basis of a marriage, the marriage is terminated before the 2-year conditional LPR period elapses, and the alien fails to establish that the marriage was not entered into in order to circumvent the immigration laws. The alien may also be found to be inadmissible and deportable if it appears to the Government that he or she refused to fulfill the marital agreement for the marriage from which he or she procured status.
Under section 237(a)(1)(H), there is a discretionary waiver available for the parent, son, or daughter of a U.S. citizen or of an LPR who was in possession of an immigrant visa or equivalent document and who was otherwise admissible at the time of admission save for 212(a)(5)(A) and (7)(a) which were a direct result of fraud or misrepresentation. There is also a similar provision for VAWA self-petitioners. Section 212(a)(6)(C)(i) inadmissibility may be waived in limited circumstances with section 212(i). It is important to note that these waivers are purely discretionary, and that no person who was found to have entered into a sham marriage or conspired to do so can expect to be entitled to a waiver.
Being found to have entered into a sham marriage or have conspired to do so is an extremely serious immigration violation. The circumstances in which the penalties for marriage fraud may be waived are very limited. Additionally, it is important to note that immigration attorneys have an ethical duty to not willfully present a fraudulent case to a tribunal. Persons with legitimate marriages should consult with an experienced immigration attorney for guidance on how to establish the bona fides of a marriage or a previous marriage to immigration adjudicators.
- See AILA InfoNet at Doc. No. 10012861