There are many immigration benefits available to aliens who are married to U.S. citizens. For this reason, aliens in the United States who have accrued at least 180 days of unlawful presence, cannot work due to their lack of status, and face 3 or 10 year or permanent bars of inadmissibility that attach upon departing from the United States, have been known to consider entering into sham marriages solely for the purpose of obtaining immigration benefits. However, due to the special benefits available to aliens who marry U.S. citizens, and the potential for abuse, immigration authorities apply high levels of scrutiny to the legitimacy of the marriage when an alien seeks an immigration benefit based on marriage to a U.S. citizen. INA § 216(b)(1)(A)(i) defines a sham marriage [in terms of when an alien who obtained status on the basis of a marriage to a U.S. citizen is removable] as “[a marriage] entered into for sole purpose of obtaining an alien's admission as an immigrant.” If United States Citizenship and Immigration Services (USCIS) ultimately finds that a marriage was fraudulent, it will throw the proverbial kitchen sink at the alien, rendering him or her both permanently ineligible to obtain an immigrant visa and subject to removal from the United States. Furthermore, being found guilty of marriage fraud may subject the alien and his or her U.S. citizen spouse to criminal penalties. This article will look at the status afforded by marriage to a U.S. citizen, how the legitimacy of a marriage is evaluated, removal on account of marriage fraud, relief from a finding of marriage fraud, and our advice to readers on all of the issues discussed in this article. The most important point in the entire article is that marriage fraud is absolutely never worth considering.
To learn about proving the bona fides of a previous marriage, please see our full article [see article].
An alien who obtains status on the basis of marriage to a U.S. citizen will be afforded with conditional permanent resident (CR) status for two years from the date of CR status.1 Since this is from the date that residency is granted, if a person who is granted residency remains outside of the United States for 2 years, he or she would be admitted to the United States as a lawful permanent resident (LPR) rather than as a CR.2 CR carries with it the benefits of LPR, with the only difference being that CR only lasts for two years. Pursuant to INA § 216(e), the two years on CR will count toward the five year permanent resident requirement for naturalization purposes. In order to maintain residency, the CR must apply to have the conditions removed on his or her status within 90 days of it elapsing.3 In general, the CR period exists to help insure that the marriage is bona fide.
In order to have conditions removed on permanent resident status, the CR and his or her spouse must jointly file a Form I-751, Petition to Remove Conditions on Residence [PDF version].4 In the case of a jointly-filed petition, INA § 216(d)(1)(A)(i) requires that the couple must establish:
- The marriage was legally entered into under the laws where it took place, and
- the marriage has not been judicially annulled or terminated, other than through the death of a spouse, and
- the marriage was not entered into for purpose of securing admission as an immigrant; and
- no fees or considerations were given other than attorney's fees for the filing of the petition.
The steps for removing the conditions on permanent resident status are designed to make the married couple demonstrate that the marriage was entered into for valid reasons. Regulations found in 8 C.F.R. § 216.4(a)(5) list evidence that a couple may provide to demonstrate that the marriage was not entered into for securing immigration status:
- Documentation showing joint ownership of property;
- Lease showing joint tenancy of a common residence;
- Documentation showing commingling of financial resources;
- Birth certificates of children born to the marriage;
- Affidavits of third parties attesting to the legitimacy of the marital relationship;
- Other documentation.
In many marriages, some of the above points will be inapplicable. USCIS will consider all of the available evidence about a marriage, and its own interviews if necessary, to determine whether the marriage is, in fact bona fide. If USCIS requests an interview after evaluating the Form I-751, failure to report for the interview may result in the termination of status pursuant to both INA § 216(c) and 8 C.F.R. 216.4(b)(3).
- Extreme hardship as a result of removal stemming from the period under CR would be incurred;6 or
- The marriage was entered into in good faith, but was terminated;7 or
- The marriage was entered into in good faith, but the CR or his or her child was subjected to battery by his or her spouse (also applies to a CR spouse in a bigamous relationship).8
The same statute makes explicit that any events necessitating a hardship waiver from the joint-filing requirement must have occurred during the two year CR period. Generally speaking, the requirement that the marriage was entered to in good faith will hold. However, courts have reached differing conclusions on whether or not the extreme hardship waiver is applicable in the case of a fraudulent marriage.9
In addition to the evidence that would support the bona fides of a marriage in the case of a jointly filed I-751, person seeking waivers from the joint filing requirement may submit information about the grounds for which the marriage was terminated.10 It is important to note that the divorce waiver is only applicable if the divorce is finalized. If a couple jointly files a petition while divorce or annulment proceedings are pending or they are legally separated, they will be sent a request for evidence (RFE) with 87 days to provide a divorce decree. If the decree is presented in time, then the I-751 will be amended such that it is treated as a waiver petition from the joint filing requirement. However, if the divorce decree is not produced with 87 days, the petition will be treated as jointly filed.11
If the U.S. citizen spouse of a CR dies during the CR period, a joint petition is not required, although the CR must still demonstrate that the marriage was entered into legally and was not entered into for purpose of obtaining immigration benefits.12
If USCIS finds in the denies the I-751, the CR status will be terminated and the alien will be placed in removal proceedings pursuant to INA 237 § (a)(1)(D). If the reason for denial was that the marriage was not entered into legitimately, he or she may subject to the potential penalties associated with marriage fraud if not granted a waiver.
Each case is evaluated on its own merits. However, between myriad judicial decisions and USCIS guidelines, we can look at factors that are generally considered in determining whether a marriage was entered into legitimately.
Multiple courts have found that the key question in evaluating a marriage is whether the couple truly intended to establish a life together when they entered into the marriage.13 Provided that the couple did truly intend to establish a life together, courts have found that the intent to obtain something other from the marriage does not make the marriage fraudulent.14 This means that, depending on the facts, provided that the couple intended to establish a life together at the time if marriage and that was in and of itself necessary and sufficient for the parties entering into the marriage, immigration benefits being considered by the parties may not in that case render the marriage fraudulent.
Courts have held that in evaluating the state of mind of the parties when entering into the marriage, only objective facts may be considered.15 A marriage is not inherently fraudulent if it does not have the hallmarks of an “ideal” marriage.16 For example, in 1968, the Board of Immigration Appeals (BIA) held that the marriage of an elderly couple where the U.S. citizen married a woman because he needed a housekeeper where the marriage was never consummated was not a sham.17 Depending on the circumstances, that the couple does not consummate a marriage or even does not cohabit does not necessitate finding that the marriage was entered into fraudulently.18
A very important point is that courts have held that inconsistent statements during the fact-finding process may be the basis for finding that a marriage was fraudulent.19 Persons who entered into legitimate marriages, and are trying to demonstrate this, need to ensure that all of the information they provide to immigration authorities is consistent.
USCIS has listed numerous mark indicators of fraud that its agents look for in interviews with couples and submitted documentation regarding the marriage. These include:
- extreme nervousness,
- over interaction,
- late 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 the interview,
- short time between entry and marriage,
- unusual marriage history,
- children born during marriage to a different parent,
- divorce and new marriage date close together,
- unusual or large age discrepancy between spouses,
- unusual cultural differences between spouses, and
- previous marriages by U.S. citizen to foreign nationals.20
INA § 237(G)(i) contains a provision that when an alien obtains a visa on account of marriage, and the marriage is terminated before two years of CR status elapses, the alien will be removed unless he or she has established that the marriage was not entered into to circumvent U.S. immigration laws. The burden in this case will be on the alien to establish that the marriage was not entered into fraudulently.21 A termination within 2 years is not in and of itself proof that the marriage was fraudulent, but the presumption is that it was a sham marriage unless the alien proves otherwise. Subsection (ii) of the same provision states that aliens who refuse to fulfill the marriage agreement are removable, since not fulfilling the marital agreement is indicative of fraud in entering the marriage.
Aliens may also be removed pursuant to INA § 212(a)(6)(C)(i) [misrepresenting facts to gain admission to the United States] for if USCIS finds that they failed or refused to fulfill a marital agreement that they gained status from.22 If the CR refuses to consummate a marriage, USCIS may find that he or she refused to fulfill a marital agreement.23 However, if the U.S. citizen fails to fulfill the marital agreement, the CR may not, depending on the facts, be found to have misrepresented facts in his or her admission to the United States.24
The INA contains two sections on penalties for sham marriages:
The first, found in INA § 204(c), pertains to the future inadmissibility of a person found to have entered into a marriage to evade U.S. immigration laws:
- no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading immigration laws or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.
INA § 275(c) specifies potential criminal penalties for sham marriages:
- An individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.
A finding of marriage fraud does not necessitate criminal penalties.25 Nevertheless, if relief is not obtained in lieu of removal, an alien who was found to have entered into a fraudulent marriage will never be permitted to obtain a visa of any kind to enter the United States.
Courts will apply the substantial evidence standard in reviewing an agency's or immigration judge's finding of marriage fraud.26
In very narrow circumstances, USCIS has discretion to waive the penalties for marriage fraud. Section 237(a)(1)(H)(i) of the INA provides for a discretionary waiver for an individual who was inadmissible at the time of admission due to fraud or misrepresentation; who is the parent, son, or daughter of a U.S. citizen or LPR; and who was otherwise admissible at the time of admission except for the grounds of inadmissibility specified in sections 212(a)(5)(A) and (7)(A) which were a direct result of the fraud or misrepresentation.27 The family relationship qualifying an individual for a section 237(a)(1)(H) waiver cannot derive from the fraudulent marriage.28 Section 237(a)(1)(H)(ii) provides that Violence Against Women Act (VAWA) self-petitioners are eligible for discretionary waivers without being the immediate family member of a U.S. citizen or LPR.29 It is important to note that these waivers are only available in removal proceedings.
If an individual is charged as inadmissible for fraud or misrepresentation of a material fact to procure immigration benefits (section 212(a)(6)(C)(i) of the INA), he or she may seek a waiver under section 212(i) of the INA [see article].
These waivers are purely discretionary, and that no one who has been found guilty of marriage fraud should assume that discretion will be exercised in his or her favor.
The most important piece of advice regarding marriage fraud is: Do not ever even consider entering into a sham marriage to obtain immigration benefits. We cannot make this point clearly enough. In addition to being plainly against the law, the potential ramifications for sham marriages are extremely severe. The best case scenario for a non-waived finding of marriage fraud is for the alien being forever unable to obtain a visa to enter the United States. The worst case scenario is fine and up to 5 years of imprisonment. The temptation to enter into a sham marriage is obvious due to the special status afforded to aliens who enter U.S. citizens, but this is exactly why USCIS is so diligent about removing those who enter into sham marriages. Whether an alien will incur a 3 or 10 year or permanent bar of inadmissibility upon leaving or being removed from the United States, those penalties pale in comparison to the potential penalties stemming from marriage fraud. While there are very limited scenarios in which a person can obtain relief from a finding of marriage fraud, these cannot be counted on. Ultimately, the best relief from the adverse ramifications of marriage fraud is, always, not engaging in marriage fraud in the first place.
Many aliens enter into sham marriages knowing full well that doing so is illegal. In these cases, the alien may get “help” from a U.S. citizen friend or even pay money to a U.S. citizen for the marriage. However, many aliens sadly enter into sham marriages without being fully aware of the potential consequences. Aliens should be wary of people seeking to “help” them who are “immigration consultants” or “advisers,” but who are not actual immigration attorneys qualified to practice immigration law. These people, in their many guises, are often responsible for filling out fraudulent applications on behalf of immigrants and encouraging them to enter into fraudulent marriages. It is absolutely crucial for persons who face a bar of inadmissibility or removal to contact a reputable and experienced immigration attorney, rather than working with someone who is neither qualified to give immigration advice nor acting in the immigrant's best interest.
It is also important to remember that, while immigration attorneys are obligated to zealously represent clients, immigration attorneys also have an ethical duty to not willfully present a fraudulent case to a tribunal. In a case about establishing the bona fides of a marriage, an experienced immigration attorney will look at all of the facts of the case and not jump to conclusions in assuming the marriage is fraudulent. However, if even with the benefit of the doubt, the experienced immigration attorney concludes that the marriage was in fact fraudulent, he or she will likely decline to take the case entirely or withdraw from representing the client.
Even aliens who entered into marriage legitimately for purpose of establishing a life together with their spouses should consult with an experienced immigration attorney during the process of removing conditions on permanent residence. Any mistake in the application process, failure to present sufficient evidence that the marriage was bona fide, or a poor interview may lead to USCIS finding that a legitimate marriage was fraudulent.
It is especially important for applicants who were for economic, educational, or other legitimate reasons, not cohabiting, to consult with an experienced immigration attorney for assistance in presenting evidence that the marriage was legitimately entered into.
Likewise, persons who entered into a legitimate marriage, only to have the marriage terminated before 2 years, will require the services of an experienced immigration attorney as soon as possible in order to expeditiously and aggressively present the case that the marriage was legitimately entered into, and that the termination of the marriage should have no bearing on the legitimacy of the marriage at the time it was entered into. Persons requiring extreme hardship waivers or waivers from the joint-filing requirement, or waivers based on battery by the U.S. citizen spouse, should also consult with an experienced immigration attorney to determine eligibility for the waivers, and subsequently to ensure that they may demonstrate effectively, where applicable, that the marriage was entered into legitimately.
- I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1084, citing INA § 216
- Kurzban 1084, citing 8 C.F.R §§ 235.11(b), 1235.11(b)
- Kurzban 1084, citing 8 C.F.R. §§ 216.4(a)(1), 1216.4(a)(1); same page, citing INA § 216(g); PL 112-58, 125 Stat 747 (Nov. 23, 2011) [The period is tolled if the petitioner or beneficiary is on active duty in the U.S. armed forces]
- Follow link for USCIS page on the Form I-751
- Kurzban 1085, citing 8 C.F.R. §§ 216.5, 1216.5; Letter, Miller, Dep. Asst. Comm. (Aug 7, 1989), reprinted in 66 No. 33 Interpreter Releases 970, 982 (Aug. 28, 1989)
- Kurzban 1085, citing 8 C.F.R. § 216.5(e)(1); Singh v. DOJ, 461 F.3d 290, 296-98 (2d Cir. 2006). Matter of Singh, 24 I&N Dec. 331 (BIA 2007). Singh v. Mukasey, 536 F.3d 149 (2d Cir. 2008). Singh v. Holder, 591 F.3d 1190, 1198 (9th Cir. 2010) [series of cases ultimately holding that USCIS regulations are consistent with the underlying statute]
- Note Kurzban 1086 citing Memo, Neufeld, Acting Assoc. Direction, USCIS, I-751 Filed Prior to Termination of Marriage (Apr. 3, 2009) at 2-3 [if a petition is initially jointly filed while divorce proceedings are pending, the CR will be given time to obtain and present a final divorce order. If he or she fails to do so, the petition will be treated as a joint petition with all of the requirements that entails].
- Kurzban 1087, citing INA § 204(a)(1)(A)(iii)(II)
- Kurzban 1085, citing Waggoner v. Gonzalez, 488 F.3d 632, 634-48 (5th Cir. 2007) [holding that marriage need not have been entered into in good faith for extreme hardship waiver to apply]; Singh v. Holder, 591 F.3d 1190, 1197-99 (9th Cir. 2010) [same conclusion on extreme hardship question]; Velazquez v. INS, 876, F.Supp. 1071, 1075-78 (D. Minn. 1995) [does not apply in case of sham marriage]
- Kurzban 8 C.F.R. § 216.5(e)(2)
- Kurzban, citing for the passage, Memo, Neufeld, Acting Assoc. Direction, USCIS, I-751 Filed Prior to Termination of Marriage (Apr. 3, 2009) at 2-3, published on AILA InfoNet at Doc. No 09072166.
- Kurzban 1087, citing Matter of Rose, 25 I&N Dec. 181 (BIA 2010)
- Kurzban 1101, citing Lutwak v. U.S., 344 U.S. 604 (1954); Agyeman v. INS, 296 F.3d 871, 883 (9th Cir. 2002); Bark v. INS, 511 F.2d 1200 (9th Cir, 1975); Accord Damon v. Ashcroft, 360 F.3d 1084 (9th Cir. 2004); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).
- Kurzban 1101, citing U.S. v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002); Yohannes v. Holder, 585 F.3d 402, 405 (8th Cir. 2009); Osalw v. Mukasey, 534 F.3d 977 (8th Cir. 2008); U.S. v. Qaisi, 779 F.2d 346 (6th Cir. 1985)
- Kurzban 1101
- Kurzban 1101, citing Matter of Peterson, 12 I&N Dec. 663 (BIA 1968)
- Kurzban 1102, citing Nikrodhanondha v. Reno, 202 F.3d 922 (7th Cir. 2000)
- Kurzban 1102, citing for the entire list, USCIS, Fraud Referral Sheet, published on AILA InfoNet at Doc. No. 10012861
- Kurzban 1101, citing Rodriguez . INS, 204 F.3D 25 (1st Cir. 2000). Matter of Neto-Domingos, 15 I&N Dec. 310 (BIA 1975); Vasquez-Mondragon v. INS, 560 F.2d 1125 (5th Cir. 1977).
- Kurzban 1101, citing Abdulahad v. Holder, 581 F.3d 290, 295 (6th Cir. 2009)
- Kurzban 1101
- Kurzban 1101, citing Matter of M, 7 I&N Dec. 601 (BIA 1957)
- Kurzban 1103, citing 8 C.F.R. § 204.2(a)(1)(ii)
- Kurzban 1102, citing King v. Holder, 570 F.3d 785, 787-88 (6th Cir. 2009) [upheld marriage fraud finding under substantial evidence standard]; Nakamoto v. Ashcroft, 363 F.3d 874, 878-81 (9th Cir. 2004).
- Kurzban 1103, citing Vasquez v. Holder, 602 F.3d 1003, 1008-19 (9th Cir. 2010); Virk v. INS, 295 F.3d 1055 (9th Cir. 2002).
- Kurzban 1103, citing Matter of Matti, 19 I&N Dec. 43 (BIA 1984).
- Kurzban 1103
RESOURCES AND MATERIALS:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1084-87, 1101-1103, Print. Treatises & Primers.