Introduction

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听辞谤 permanent bars听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 搂 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 鈥淸a marriage] entered into for sole purpose of obtaining an alien’s admission as an immigrant.鈥� 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听bona fides听of a previous marriage, please see our full article.

Status derived from marriage

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听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 搂 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 听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.4听In the case of a jointly-filed petition, INA 搂 216(d)(1)(A)(i) requires that the couple must听establish:

  • The marriage was legally entered into under the laws where it took place;
  • The marriage has not been judicially annulled or terminated, other than through the death of a spouse;
  • The marriage was not entered into for purpose of securing admission as an immigrant;
  • 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. 搂 216.4(a)(5) list evidence that a couple may provide to demonstrate that the marriage was not entered into for securing immigration听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听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 搂 216(c) and 8 C.F.R.听216.4(b)(3).

Pursuant to INA 搂 216(a)(4), there are three hardship waivers of the joint filing requirement for the I-751 are available5听in the case听that:

  • Extreme hardship as a result of removal stemming from the period under CR would be incurred;6
  • The marriage was entered into in good faith, but was terminated;7
  • 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听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 搂 (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听associated with marriage fraud if not granted a waiver.

How is the evidence pertaining to the legitimacy of a marriage evaluated?

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听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听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听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听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听A marriage is not inherently fraudulent if it does not have the hallmarks of an 鈥渋deal鈥� marriage.16听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听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听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听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听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;
  • Previous marriages by U.S. citizen to foreign nationals.20

Removal on account of marriage fraud

INA 搂 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听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听marriage.

Aliens may also be removed pursuant to INA 搂 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听If the CR refuses to consummate a marriage, USCIS may find that he or she refused to fulfill a marital agreement.23听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

Penalties for sham marriages

An individual may be charged as inadmissible for fraud or misrepresentation of a material fact on account of seeking benefits through a sham marriage. Furthermore, if the individual was admitted by virtue of the sham marriage, he or she may be found to be removable for having been inadmissible at the time of entry due to fraud or听misrepresentation.

The INA contains two sections on penalties for sham听marriages:

The first, found in INA 搂 204(c), pertains to the future inadmissibility of a person found to have entered into a marriage to evade U.S. immigration听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 搂 275(c) specifies potential criminal penalties for sham听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听both.

If an individual is criminally convicted of marriage fraud, he or she may face additional charges of removal stemming from the conviction. These may include, but are not limited to, being determined to have been convicted of a crime involving moral turpitude (CIMT) and certain removal provisions relating to document听fraud.

A finding of marriage fraud does not necessitate criminal penalties.25听Nevertheless, if relief听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

Marriage fraud relief

Under section 237(a)(1)(H), the USCIS may waive removal based on an individual having been inadmissible at the time of entry or adjustment of status due to fraud or misrepresentation of a material fact to procure immigration benefits. The individual must be otherwise admissible and be the spouse, parent, son, or daughter of a U.S. citizen or LPR.27听The qualifying relationship cannot be based on a sham marriage.28听Violence Against Women Act (VAWA) self-petitioners do not require a qualifying relative.29听This waiver is only available in removal proceedings. In theory, inadmissibility for fraud or misrepresentation may be waived under section 212(i). However, section 212(i) arises in the context of immigrant visa petitions, and thus will be mooted if the section 204(c) subsequent marriage bar听attaches.

Marriage fraud does not bar eligibility for cancellation of removal, although it would strongly weigh against granting relief even if the applicant is prima facie (on the face) eligible. For cases where section 204(c) applies, forms of relief and requests that do not involve the individual being the principal beneficiary of an immigrant visa petition are not barred, although marriage fraud would still represent a serious barrier to having any petitions or applications听approved.

It is important to remember that marriage fraud is often fatal in the immigration context. An individual should never count on being granted relief given both the seriousness of marriage fraud and the fact that having been found to have engaged in marriage fraud weighs heavily against the individual’s credibility in immigration proceedings and听adjudications.

Advice

The most important piece of advice regarding marriage fraud is:听Do not ever even consider entering into a sham marriage to obtain immigration benefits.听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听best case scenario听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,听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听relief听from the adverse ramifications of marriage fraud is,听always,听not engaging in marriage fraud in the first听place.

Many aliens enter into sham marriages knowing full well that doing so is illegal. In these cases, the alien may get 鈥渉elp鈥� 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 鈥渉elp鈥� them who are 鈥渋mmigration consultants鈥� or 鈥渁dvisers,鈥� 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听immigration听attorney, rather than working with someone who is neither qualified to give immigration advice nor acting in the immigrant’s best听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听with听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听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听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听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听legitimately.

  1. I. Kurzban,听Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool听(AILA 14th Ed. 2014) 1084, citing INA 搂听216
  2. Kurzban 1084, citing 8 C.F.R 搂搂 235.11(b),听1235.11(b)
  3. Kurzban 1084, citing 8 C.F.R. 搂搂 216.4(a)(1), 1216.4(a)(1); same page, citing INA 搂 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听forces]
  4. Follow link for USCIS page on the Form听I-751
  5. Kurzban 1085, citing 8 C.F.R. 搂搂 216.5, 1216.5; Letter, Miller, Dep. Asst. Comm. (Aug 7, 1989),听reprinted in听66 No. 33听Interpreter Releases听970, 982 (Aug. 28,听1989)
  6. Kurzban 1085, citing 8 C.F.R. 搂 216.5(e)(1);听Singh v. DOJ,听461 F.3d 290, 296-98 (2d Cir. 2006).听Matter of Singh,听24 I&N Dec. 331 (BIA 2007).听Singh v. Mukasey,听536 F.3d 149 (2d Cir. 2008).听Singh v. Holder,听591 F.3d 1190, 1198 (9th Cir. 2010) [series of cases ultimately holding that USCIS regulations are consistent with the underlying听statute]
  7. 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听entails].
  8. Kurzban 1087, citing INA 搂听204(a)(1)(A)(iii)(II)
  9. Kurzban 1085, citing听Waggoner v. Gonzalez,听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];听Singh v. Holder,听591 F.3d 1190, 1197-99 (9th Cir. 2010) [same conclusion on extreme hardship question];听Velazquez v. INS,听876, F.Supp. 1071, 1075-78 (D. Minn. 1995) [does not apply in case of sham听marriage]
  10. Kurzban 8 C.F.R. 搂听216.5(e)(2)
  11. 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,听published on听AILA InfoNet at Doc. No听09072166.
  12. Kurzban 1087, citing听Matter of Rose,听25 I&N Dec. 181 (BIA听2010)
  13. Kurzban 1101, citing听Lutwak v. U.S.,听344 U.S. 604 (1954);听Agyeman v. INS,听296 F.3d 871, 883 (9th Cir. 2002);听Bark v. INS,听511 F.2d 1200 (9th Cir, 1975);听Accord Damon v. Ashcroft,听360 F.3d 1084 (9th Cir. 2004);听Matter of McKee,听17 I&N Dec. 332 (BIA听1980).
  14. Kurzban 1101, citing听U.S. v. Orellana-Blanco,听294 F.3d 1143, 1151 (9th Cir. 2002);听Yohannes v. Holder,听585 F.3d 402, 405 (8th Cir. 2009);听Osalw v. Mukasey,听534 F.3d 977 (8th Cir. 2008);听U.S. v. Qaisi,听779 F.2d 346 (6th Cir.听1985)
  15. Kurzban听1101
  16. Kurzban 1101, citing听Matter of Peterson,听12 I&N Dec. 663 (BIA听1968)
  17. Id.
  18. Id.
  19. Kurzban 1102, citing听Nikrodhanondha v. Reno,听202 F.3d 922 (7th Cir.听2000)
  20. Kurzban 1102, citing for the entire list, USCIS, Fraud Referral Sheet,听published on听AILA InfoNet at Doc. No.听10012861
  21. Kurzban 1101, citing听Rodriguez . INS,听204 F.3D 25 (1st Cir. 2000).听Matter of Neto-Domingos,听15 I&N Dec. 310 (BIA 1975);听Vasquez-Mondragon v. INS,听560 F.2d 1125 (5th Cir.听1977).
  22. Kurzban 1101, citing听Abdulahad v. Holder,听581 F.3d 290, 295 (6th Cir.听2009)
  23. Kurzban听1101
  24. Kurzban 1101, citing听Matter of M,听7 I&N Dec. 601 (BIA听1957)
  25. Kurzban 1103, citing 8 C.F.R. 搂听204.2(a)(1)(ii)
  26. Kurzban 1102, citing听King v. Holder,听570 F.3d 785, 787-88 (6th Cir. 2009) [upheld marriage fraud finding under substantial evidence standard];听Nakamoto v. Ashcroft,听363 F.3d 874, 878-81 (9th Cir.听2004).
  27. Kurzban 1103, citing听Vasquez v. Holder,听602 F.3d 1003, 1008-19 (9th Cir. 2010);听Virk v. INS,听295 F.3d 1055 (9th Cir.听2002).
  28. Kurzban 1103, citing听Matter of Matti,听19 I&N Dec. 43 (BIA听1984).
  29. Kurzban听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 &听Primers.