Any non-citizen of the United States who enters into a marriage for the sole or primary purpose of evading U.S. immigration law and obtaining permanent residence (a green card) is deemed to have engaged in marriage fraud.
(See the relevant law at I.N.A. Section 204(c) and Matter of Laureano, 19 I&N Dec. 1 (B.I.A. 1983).)
This has a number of consequences under federal immigration law. (It can also be punished under U.S. criminal law, but that's a separate topic.) Below, we'll explore:
- what a non-fraudulent, real, or "bona fide" marriage is, in legal terms
- how marriage fraud gets uncovered during the marriage-based green card application process, and
- what the consequences are for the perpetrators of marriage fraud.
What's a Real Marriage, in Immigration Law Terms
A bona fide marriage, according to U.S. immigration law, is one that not only starts with a legally valid ceremony, but also involves a couple who intend to live in a real marital relationship, and to establish a life together. These are normally indicated by such things as living together, spending vacations, birthdays, and holidays together, having children, buying cars, houses, or other property together, and combining other financial, social, and practical aspects of their lives after marriage.
In fact, you'll be expected to submit documentary evidence of such things. These might include, for example, copies of joint bank and credit card account statements, photos, letters, birth certificates of children, and copies of lease or mortgage documents. None of these is an absolute requirement, but they're all looked upon as important evidence.
How U.S. Immigration Authorities Typically Discover Marriage Fraud
In the course of applying for a green card based on marriage, U.S. immigration authorities (including U.S. Citizenship and Immigration Services or "USCIS" as well as the Department of State or "DOS") will take a close look at whether the couple was able to provide sufficient evidence that they have joined their lives.
If the documents are not convincing, the immigration officials will likely ask for more, or initiate a separate investigation. They can even show up at the house where the couple is supposedly living together (if they're both in the United States) to do an early morning "bed check."
Also, toward the end of the application process, immigration authorities will interview one or both members of the couple, and will ask questions to ascertain whether it is a real marriage. If any red flags pop up during the interview, such as a huge cultural difference or inability to speak the same language, they will ask even more questions.
The officials can decide to add another step to the process and conduct marriage fraud interviews (sometimes called "Stokes" interviews), during which the couple will be separated. Each one will be asked the same set of questions. Then, their answers will be compared. Too many mismatching answers and the application is likely to be denied and a notation of marriage fraud made in the record. The officials may also forward the case to immigration court for removal proceedings.
U.S. immigration law requires particular scrutiny of new marriages. Under the Immigration Marriage Fraud Amendments of 1986 ("IMFA"), an applicant whose marriage is less than 24 months old upon receiving approval for a green card will receive only "conditional," not permanent residence. This status expires after another two years. Within the 90 days before that two-year expiration date, the immigrant must apply to have the condition removed (using USCIS Form I-751) so as to become a full-fledged lawful permanent resident.
And, of course, the I-751 application involves supplying even more documentary proof that the marriage is ongoing and valid. When in doubt about whether to grant the removal of conditions, USCIS will ask for more documents or conduct an interview.
Marriage Fraud Makes an Immigrant Deportable
Marriage fraud is included in the grounds of deportability at Immigration and Nationality Act (I.N.A.) § 237(a)(1)(G), or 8 U.S.C. § 1227(a)(1)(G).
An immigrant who is already living in the United States after having committed marriage fraud can be expelled through a process known as "removal," after a hearing before an immigration judge. They will be expected to stay outside the United States for several years at a minimum. An immigrant who wishes to return to the United States in the future, after having been removed (deported) for marriage fraud, is likely to be denied entry on grounds of being legally "inadmissible."
If placed in deportation proceedings due to suspicion of a fraudulent marriage, the immigrant still has an opportunity to try to convince the judge that the marriage is real; and even to ask the judge to grant a green card on this basis (if otherwise legally possible).
But the immigration judge will give the case a very close look. The immigrant will need to testify, present evidence, and be cross-examined by an attorney representing the U.S. government.
The scrutiny will be even higher if the marriage took place after deportation proceedings had begun. (See I.N.A. § 204(g).) In the latter case, the law requires the applicant to establish by "clear and convincing evidence" that "the marriage was entered into in good faith and in accordance with the laws of the place where the marriage took place and that the marriage was not entered into for the purpose of procuring the alien's admission as an immigrant and no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition."
Marriage Fraud Makes the Immigrant Inadmissible in the Future
To be "inadmissible" means to be barred from eligibility from virtually any sort of U.S. visa or green card. Once you have fraud or misrepresentation on your record, you are inadmissible under I.N.A. § 212(a)(6)(C)(i).
While this section of the law doesn't specifically mention marriage fraud, it does describe "willfully misrepresenting a material fact," and there is no question that the bona fides of one's marriage, being central to requesting a family-based immigrant visa, is a material fact. So, a record of marriage fraud will likely make it impossible to obtain future immigration benefits such as lawful permanent residence.
Questions for Your Attorney
If your application for a U.S. green card based on marriage is going badly; perhaps USCIS or DOS is asking for more information or follow-up interviews, or has even suggested that it believes your case is fraudulent; you will absolutely need the help of an experienced immigration attorney. To attempt to go it alone raises the risks of not only denial, but deportation proceedings and future inadmissibility.
Here are some questions to ask your prospective attorney:
- How much experience do you have in marriage-fraud cases?
- What aspect of my case do you think U.S. immigration authorities are finding unconvincing or suspicious?
- How do we prepare for our upcoming visa or green card interview?
- What are my chances of winning my case? How long will it take?
- How much will you charge? (See What Immigration Lawyers Report About Their Fees and Free Consultations.)