Marriage Fraud

INTRODUCTION

Although increasingly limited, there are still several ways for a foreigner to gain lawful permanent resident (LPR) status in the United States. Because of the complexity involved in gaining LPR status, great commitment is required on the part of the applicant to see the process through, as well as readiness to be subjected to lengthy wait periods, rigorous government examination, and numerous setbacks. The process becomes even more convoluted if it involves an immigrant who overstayed his or her visa, or came into the United States without having been inspected, admitted, or paroled. These individuals are generally referred to as undocumented immigrants or aliens. Because of their lack of valid immigrant status, many of them cannot travel internationally or obtain state-level identification (such as a driver license or state-issued non-driver license ID). Furthermore, they cannot obtain lawful employment and may even experience difficulty paying their taxes due to the lack of a Social Security number.

On the other hand, entering the United States from abroad presents insurmountable challenges for many aliens. This is because a non-USC or LPR returning to the United States from a brief and casual trip abroad and presenting him or herself at the U.S. port of entry is considered an applicant for admission. That means that the permissibility of that person to enter the United States is closely examined. Applicants for admission who have accrued certain amounts of unlawful presence in the United States (time spent without proper authorization) would be legally restricted from entering the United States by inadmissibility bars. 180 days or less of unlawful presence would, upon reentry, result in a three-year bar, whereas those 365 days or more of unlawful presence would result in a ten year-bar. These bars were created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) — a major immigration law overhaul enacted by the Congress and signed into law by President Clinton in 1996. Congress instituted the bars as a means of deterring visitors who wished to stay past the date of their authorized stay, as well as those enter or attempt to enter the United States without inspection. Ironically, over the years since the enactment of the IIRIRA, the bars have often had the opposite effect from what Congress intended, as they have encouraged many immigrants who violated their immigration status, or who gained it in an improper way to begin with, to remain in this country since the inadmissibility bars only attach upon departing the United States.

In light of the difficulties obtaining LPR status, and the imposition of inadmissibility bars, immigration privileges extended to spouses of U.S. citizens (USC) are very attractive. This is because because an immigrant petition by a USC spouse would make the foreigner potentially eligible for adjustment of status, even in cases where a foreigner had overstayed a nonimmigrant visa. Since inadmissibility bars only apply if someone subject due to accrual of unlawful presence departs the United States, adjusting status from within the United States is a legally available option. As a result, some individuals are incentivized to engage in sham marriages to circumvent immigrant laws; sometimes without fully realizing the potentially severe consequences that they will be subject to if the fraud is discovered.

AVAILABILITY OF WAIVERS

An affirmative finding of marriage fraud made by USCIS or an immigration judge, if not challenged and allowed to stand, renders the foreigner removable and inadmissible at the same time. What is more, inadmissibility stemming from the affirmative finding of marriage fraud attaches for life with no possibility of a waiver.

In contrast, there are certain waivers are available for inadmissibility resulting from overstaying a nonimmigrant visa. To obtain a discretionary waiver of inadmissibility for overstaying, the immigrant would have to show that he or she has a spouse or parent who is a USC. Furthermore, since these bars of inadmissibility only attach upon exiting the United States, those who overstayed their visas would not need to leave the country when they are petitioned for by their genuine USC spouse or adult child. This process is called adjustment of status. Others, if they qualify, may obtain LPR status from outside of the United States after obtaining inadmissibility waivers, and then be permitted to enter the United States on a lawfully issued immigrant visa. Recent Provisional Stateside Unlawful Presence Waiver regulations substantially simplified these processes for qualified foreigners and shortened the minimum the waiting time outside of the United States.

SOME OF THE REASONS FOR IMMIGRATION FRAUD BASED ON MARRIAGE

It is important to understand these special waiver provisions of the Immigration and Nationality Act (INA) which excuse overstay for immediate relatives of USCs in adjustment of status process, because this is where the crux of the fraudulent marriage problem occurs.

Let us imagine for a moment the mindset of an undocumented immigrant who has overstayed his or her nonimmigrant visa. The promise of living in the Unites States, the land of opportunity, is remarkably attractive. There are only two apparent options for the undocumented immigrants: to leave the United States and become subject to either the three or ten-year bar of inadmissibility, or to continue living illegally in the United States. However, with some very limited exceptions, an undocumented immigrant cannot obtain employment authorization, and thus would have great difficulty earning a living. The undocumented immigrant could at any moment be taken into custody and subjected to deportation or removal proceedings. Hence, it appears that there is no real hope for the undocumented immigrant.

However, there is the enticing marriage petition. As detailed above, if the immigrant were to marry a USC, he or she would, if petitioned for by the USC spouse, avoid grounds of inadmissibility caused by the accrual of unlawful presence. The inadmissibility bars would simply not attach since the immigrant would have never left the United States in order to seek LPR status. The alien would instead qualify for the limited exception reserved for the immediate relatives, which makes the immigrant potentially eligible for LPR status if his or her spouse's immigrant visa petition is approved. In addition, there would seem to be no apparent repercussions from obtaining adjustment of status through the spouse’s petition, since the adjustment of status ineligibility rules found in section 245 of the INA do not attach if the undocumented immigrant is the immediate relative of a USC.

Critically, however, many of these undocumented immigrants do not fully realize that seeking immigration benefits on the basis of a sham marriage is a federal crime. On an administrative level, USCIS is chiefly concerned with the validity of the marriage because of the privileged position immediate relatives of USCs enjoy under United States immigration law. USCIS puts a very high priority on making sure that the marriage was not entered into as a means of fraudulently gaining immigration benefits. Since the law squarely places the burden on the applicant to demonstrate not only the legal validity, but also the bona fide (i.e. good faith) nature of the marriage, USCIS immigrant visa interviews are a major force in detecting and preventing immigration fraud.

THE PROCESS OF MARRIAGE-BASED APPLICATIONS AND IMMIGRATION FRAUD INVESTIGATION

A set of forms and supporting documents, as well as the filing fees, need to be filed with USCIS's lock box. Given the amount of information that needs to be provided, and the complexity of the application, persons filling marriage-based applications are strongly recommended to retain an experienced immigration attorney.

Shortly after USCIS receives the application packet, and provided that the applications had been correctly prepared, USCIS will send receipt confirmations for each application included in the packet along with a notice to the immigrant regarding a biometrics appointment. If the fingerprints and background check are clear, the applicant is notified of a new appointment, this time for an interview before an immigration officer at a USCIS local office. The immigrant is required to appear at this interview with his or her spouse. At this interview, the immigration officer carefully reviews the petitions and applications that were previously submitted. Any questions that the immigration officer has regarding the application and the validity of the marriage are addressed during the interview. If the marriage is bona fide and this is evident throughout the interview, the couple should expect the application to be approved. Upon approval, the non-citizen should receive his or her permanent resident card within a month or so.

Difficulties in these marriage applications arise when the validity of the marriage is unclear, and consequently challenged by USCIS. Immigration officers and officials in the USCIS's fraud unit, where suspicious cases are referred, are very experienced professionals and, thus, familiar with all of the tactics that are used by unscrupulous applicants who enter into a marriage solely to circumvent immigration laws. Nevertheless, although USCIS does not keep official statistics on the frequency of marriage fraud, the agency indicates that fraud does happen and often goes undetected given the complexity determining whether it occurred. This frequency of marriage fraud causes USCIS officers to be on alert and scrutinize carefully every case, often turning the interview into a dramatic experience for the couple.

IMMIGRATION FRAUD BASED ON MARRIAGE

Although fraud is knowingly committed by a statistically large number of applicants, the statistics are even higher for cases in which “immigration consultants” or “advisers” are involved. These individuals are dangerous because they:

• are not lawyers and thus not authorized by law to give legal advice, 
• are often confused about the substance and requirements of the law, and 
• provide deficient assistance to applicants in properly filling out forms in otherwise legitimate cases. 

These consultants assume various names. In some communities they are known as “immigration services,” while in others as “travel agencies,” “notaries,” or “paralegal services.” Due to language barriers and misplaced trust, it is often very easy for the foreigners to become victims of these individuals, who file on their behalf misleading or fraudulent applications. The results are often catastrophic for the foreigner, who is always the one to bear the brunt of the penalties. This is because, ultimately, the applicant who signed the form. The name of the preparer is often not even indicated on the form. The applicant may face adverse consequences ranging from minimal repercussions (if lucky) to landing in removal proceedings in immigration court due to being accused of material representations or even outright fraud. In other words, the applicant can, and often will, find him or herself facing deportation from the United States with very limited avenues to successfully fight it. It is important to bear in mind that if a legal finding of marriage fraud is made and subsequently upheld, it renders the applicant ineligible for most forms of immigration benefits for life, resulting in a nightmare for the applicant and his or her family.

Marriage fraud can be committed in several ways. It is not uncommon for a USC friend to “help” a non-citizen gain immigration benefits through a marriage in which no genuine marital relationship exists. In other cases, there are USCs who enter into fraudulent marriages in exchange for financial compensation. There are even criminal organizations, disguised as legitimate businesses, in which brokers set up meetings with non-citizens to facilitate entering into fraudulent marriages for a fee. Even some attorneys have been disciplined for their unethical practices by the Bar Association, Grievance Committee, Executive Office for Immigration Review, and USCIS. Others attorneys have been subject to criminal investigations and ultimately convicted of marriage fraud.

While an immigration attorney's primary duty is to zealously represent his or her client, immigration attorneys also have an ethical responsibility to recognize red flags in a marriage case in order to avoid knowingly presenting a fraudulent case to a tribunal. For example, an experienced immigration attorney will ask: Are there any inconsistencies in a couple's marital situation? Do both parties share the same address? Has the petitioner requested LPR status for any other immigrants in the past? If an immigration attorney analyzes all of the facts and reaches the inescapable conclusion that a marriage is fraudulent, he or she will likely not take the case or will withdraw from representing a client. At the same time, an immigration attorney has an ethical duty to his or her client to give the benefit of the doubt and not jump to premature conclusions. This ethical obligation becomes especially significant given the effect that the recent economic downturn has had on many families. In many bona fide marriages, one party may have to work far away from the couple’s primary home and spend significant amounts of time away. In some other cases, the parties in a marriage may have to maintain separate households while one or both pursue educational opportunities. An immigration attorney will consider all of these circumstances, while giving the benefit of the doubt, in determining whether he or she can represent the client. However, these circumstances, even in a wholly legitimate marriage, may make proving the bona fide nature of a marriage to the satisfaction of immigration adjudicators a daunting task.

DIFFICULTIES IN MARRIAGE CASES UNRELATED TO MARRIAGE FRAUD

As touched upon in the last paragraph, apart from fraud, there are other variables that can complicate proving the bona fide nature of the marriage. Although it may seem unlikely, if there are previous marriage-based petitions and applications by either the beneficiary or the petitioner, these previous marriages will also be examined. Convincing an immigration officer that all of the prior marriages were genuine is a burden placed upon on the applicant.

If the applicant has prior criminal convictions on record, this will be another difficult hurdle to clear in marriage-based immigration cases. For criminal convictions, it is essential that all certificates of dispositions and complaints are readily available. Certain convictions result in an automatic bar against immigration benefits or permanent residence in the United States. This is one area where it is extremely important to consult with an experienced immigration attorney prior to filing for adjustment of status with USCIS.

Prior or current proceedings in immigration court will also present difficulties for applicants. USCIS will examine any immigration court proceedings with utmost scrutiny, since immigration court proceedings may incentivize someone to enter into a sham marriage. USCIS will attempt to confirm that the marriage was not entered into under false pretenses by subjecting both parties in the married couple to separate interviews.

USCIS has safeguards in place designed to detect and deter marriage fraud. If the marriage has not reached its two-year anniversary, the beneficiary of permanent resident status will be afforded conditional permanent resident status (CR) for two years. To become a LPR, the CR must jointly file a petition to remove the conditions within 90 days of the expiration of CR. There are several exceptions from the joint-filing requirement that apply when a marriage was entered into in good faith, but ultimately was terminated; when the CR was subjected to battery or extreme cruelty, or when the CR would incur “extreme hardship” upon removal. The joint-filing exception is also available if the USC spouse dies within the two years.

Fortunately, the conditional residency period has had a positive effect in reducing the number of fraudulent marriage applications submitted to USCIS. There also has been a drastic decrease in the number of prosecutions for marriage fraud since the conditional residency period was instituted.

In some cases, USCIS may issue a denial in a case where the marriage is actually bona fide. In this event, there is still hope. The applicant may seek an appeal or reconsideration of the ruling. Furthermore, the applicant may present his or her case to an immigration court and ask for a review of the denial.

Ultimately, the best way to avoid an initial denial is to be as well prepared as possible for what you may be asked during the interview. An experienced immigration attorney will be aware of the type of questions that will be asked and what you may need to focus on clarifying given the facts of your situation. These are areas where the hard work, diligence, and attention to detail of an experienced immigration attorney pay off.