The Immigration and Nationality (“INA”) contains very harsh provisions to combat fraudulent marriages. A sham, fake, or fraudulent marriage is one entered into by the couple to get around this country's immigration laws. Under the INA, a marriage is not valid solely because the couple went through the motions to obtain a certificate of marriage. Rather, the couple must intend to actually build a life together. Under INA § 204(c) U.S. Citizenship and Immigration Services (“USCIS”) cannot approve an immigrant visa petition if the beneficiary previously entered, attempted, or conspired to enter into a fraudulent marriage. See INA § 204(c). See also 8 C.F.R. § 204.2(a)(1)(i). Section 204(c) applies regardless of whether the alien actually obtained immigration benefits through the sham marriage. See 8 C.F.R. § 204.2(a)(1)(i). USCIS must deny all subsequent immigrant visa petitions filed on behalf of a beneficiary who engaged in marriage fraud. USCIS cannot exercise discretion and approve the petition regardless of the merits of the subsequent petition or reasons for engaging in marriage fraud.
Given the harsh consequences of a marriage fraud finding, there must be substantial and probative evidence of an attempt or conspiracy to commit marriage fraud in order to deny an immigrant visa petition. See 8 C.F.R. § 204.2(a)(ii). See also Salas-Velazquez v. INS, 34 F.3d 705, 708 (8th Cir. 1995); and Syed v. Ashcroft, 389 F.3d 248 (1st Cir. 2004). The beneficiary does not have to be convicted of, or even prosecuted of, an attempt or conspiracy to commit marriage fraud for INA § 204(c) to be triggered. Id. However, speculation or conjecture is not enough. There must be evidence of an attempt or conspiracy to commit marriage fraud in the alien's file. Id.
USCIS may rely upon a prior determination that the beneficiary entered a fraudulent marriage in instances where the alien was found deportable/removable for procuring a visa through fraud in proceedings before the immigration court. A marriage fraud determination by the immigration court is given conclusive effect, because it “inherently involve[d] a factual determination based on clear, unequivocal, and convincing evidence, that that respondent engaged in fraudulent conduct by entering a 'for the purpose of procuring his…entry as an immigrant.'” Matter of Agdinaoay, 16 I. & N. Dec. 545, 547 (BIA 1978 (internal citations omitted). On the contrary, a prior determination by USCIS, or its predecessor, the Immigration and Naturalization Service (“INS”), that a beneficiary entered into a sham marriage is not entitled to the same conclusive effect, because said determination was not made using the clear, unequivocal, and convincing evidence standard. While the adjudicator may rely on any relevant evidence in the alien's file, conclusive effect should not be given to a prior conclusion, but rather the adjudicator should make his/her own independent determination based upon the administrative record before him/her. See Matter of Tawfik, 20 I. & N. Dec. 166, 168 (BIA 1990). See also Matter of Samsen, 15 I. & N. Dec. 28 (BIA 1974).
When determining whether INA § 204(c) is applicable, the adjudicator may consider any relevant evidence, including evidence gathered during a prior proceedings involving the beneficiary before USCIS or its predecessor, the INS, or in court proceedings regarding the previous marriage. Id. Whether USCIS should deny the current visa petition pursuant to INA § 204(c) will hinge on a determination that there is sufficient evidence, including evidence relied upon in the adjudication of any prior visa petition, to support a conclusion that the beneficiary entered a previous marriage for sole purpose of evading the immigration laws. Id. at 168-169. USCIS may rely upon the following types of evidence when determining whether to deny an immigrant visa petition pursuant to INA § 204(c):
- an admission by either party that the marriage was a sham;
- proof the spouse was paid to enter the marriage;
- proof the marriage was never consummated;
- proof the couple never cohabited; and/or
- proof the couple never held themselves out to family and friends as husband and wife.
See Ghaly v. INS, 48 F.3d 1426 (7th Cir. 1995); Salas-Velazquez, supra.; Oddo v. Reno, 17 F. Supp. 2d 529, 532 (E.D. Va. 1998); Al-Kilani v. Barr, 1992 US Dist. LEXIS 5974, *3 (N.D.Ca. 1992); Matter of Kahy, 19 I. & N. Dec. 803, 805 (BIA 1988); and Matter of Phillis, supra. It is important to note that the mere fact that the petitioner and beneficiary were not living together at the time of the visa petition was denied is not sufficient evidence to support a determination of marriage fraud under INA § 204(c). Matter of Tawfik, 20 I. & N. at 169. You can find more information about overcoming a marriage fraud determination by clicking here and here.
If, after review of the administrative record, USCIS determines INA § 204(c) is applicable, the petitioner and beneficiary must be notified of the basis of the determination. The notification should reference the evidence relied upon by USCIS to determine the beneficiary entered into a sham marriage so that the petitioner and beneficiary have a meaningful opportunity to respond to the allegations. Where the petitioner or beneficiary is unaware of the derogatory information, the Federal Regulations require USCIS to advise the petitioner or beneficiary of the derogatory information being relied upon and provide him/her with an opportunity to refute the allegations. 8 C.F.R. § 103.2(b)(16)(i). The petitioner is typically notified in a Notice of Intent to Deny (“NOID”). It is important to challenge any marriage fraud finding.
A finding that an alien entered into a fake marriage to circumvent this country's immigration laws can also lead to a denial of other immigration benefits. Many immigration benefits like asylum, DACA, and TPS require a favorable exercise of discretion on the part of USCIS or an immigration judge. A finding that an alien entered a fraudulent marriage is an adverse factor, which usually weighs heavily against the exercise of discretion. It is important to note that engaging in marriage fraud does not only expose a person to severe immigration consequences, but also criminal penalties. A person who enters into a marriage for the purpose of evading any provision of the INA can be prosecuted and if convicted, faces term of imprisonment for up to five years, a fine of up to $250,000.00, or both imprisonment and a fine. See 8 U.S.C. § 1325(c).