What To Do If You Are Accused Of Sham Or Fraudulent Marriage For Immigration Purposes
09 August 2021Author: New York Immigration Green Card Lawyer Alena Shautsova
NYC Immigration lawyer Alena Shautsova helps immigrants to fight for their status in the United States, be it a green card, waiver, removal proceedings, appeals, motions to reopen, or prosecutorial discretion. Our New York top rated Immigration lawyer helps immigrants to analyze their legal circumstances to determine what they can do about their status in the United States in the light of the existing laws and regulations.
Marriage-based green card is perhaps one of the most common ways a person can obtain an immigration status in the United States. It seems easy to start that process: a couple has to be legally married, and present evidence of the “real” marriage, appear for an interview, after which a non-citizen would get a green card. But it is not that simple: one of the goals of the US Immigration authorities is to make sure that the couple is not only married, but that they have a bona fide marriage, or marriage that was not done solely for the purposes of Immigration benefits. How do USCIS officers determine that? What do they use to make their conclusions and what happens if they make a decision that your case should be denied due to a sham marriage or fraud?
To start with, if you are going through or planning on going through green card based on marriage process, you should familiarize yourself with the Immigration forms and instructions to the immigration forms that can be found on www.uscis.gov website. The forms, especially form I 130 and its instructions, give you a pretty good idea as to what USCIS officers expect to see when you file your case. As a rule, it would be statements from joint bank accounts, utility bills, leases, birth certificates for children, etc. But life, of course, can be more complicated than a couple of bank statements. That is why spouses will be called for an Immigration interview, where an officer will have an opportunity to observe the couple and question them as to how well they actually know each other. But an interview, is not the only tool that USCIS officer may use to see if the couple is truthful. USCIS will look at the couple’s behavior at the time of the interview, if an attorney interrupts the interview, over- submission of documents, staged photographs, common preparer known to be involved in fraudulent cases, documents issued immediately before or after the interview, short time between entry and marriage, children born during marriage to other parent, divorce/marriage dates close, unusual or large age discrepancy, unusual cultural differences, previous marriages to foreign nationals. USCIS, Fraud Referral Sheet, AILA Doc. 10012861.
USCIS officer will check couple’s social media, address history as it is available in various databases, they may even conduct an investigation by visiting couple’s places of work and residence. If a couple fails the first interview, they will be called for a second interview which is called Stokes interview in New York. If they fail the second interview, this is when the accusations of sham or fraudulent marriage usually appear.
The law also states that to assist the government in determining if your marriage is real, the process of marriage based green card is divided at times in two steps: first, a non-citizen will receive only a conditional green card, that will be valid for two years. It is done to determine if the couple actually entered in the marriage in good faith. And after the two years, the couple will need to apply to remove the conditions from the green card, so that the non-citizen will receive a permanent green card. It is during this second application when US immigration officers may again accuse the non-citizen of a fraudulent or sham marriage.
There may be one more situation where a non-citizen may be accused of a fraudulent marriage. Consider such facts: X divorced his first non-US citizen spouse O, and married Y who helped X to become a green card holder. Later, X divorces Y, becomes a US citizen, and then remarries O and tries to sponsor O to become a green card holder. Expect a thorough investigation if this happens. Naturally, US immigration authorities will be skeptical that marriage with Y was bona fide.
The consequences of being accused of marriage fraud under INA 204(c ) are drastic: there will be a forever bar on approval of subsequent immigrant visa petitions, both family-based and/ or employment-based, and investment -based. Importantly, the bar does ot apply to any other person, such as children of the barred spouse. It also does not apply to fraudulent statements on I 130 form where there was no attempt to enter in a fraudulent marriage: where I 130 and I 485 was filed for non-existing marriage, 204 (c )cannot apply. Matter of Christo’s Inc., 26 I&N, Dec. 537 (AAO 2015).
Your possible legal solutions will thus depend on your individual circumstances, reasons for the failed interview, and/or reasons for denial of the removal of conditions, and the existing law.
But generally speaking, it is good to know some of the US Immigration basics that explain that a marriage needs not to be an ideal marriage, and that even if couple separates after the marriage, their case may still be approved. See Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980) (if the government does not have evidence of fraud, they cannot deny the adjustment case only because the couple separated at the time of the adjustment decision).
The usual key to win your I 130 case would be strong evidence of real marriage: documents and witness’ statements showing that the couple did reside together. Like in any legal process, the adjudicator: USCIS officer, BIA or a federal judge will weight the evidence and determine it is relevant and sufficient to meets one’d burden of proof. One way to win one’s case, if an I 130 denial received, would be to appeal the denial, and during the appellate process the applicant will be able to present new evidence of real marriage as well. There may be other solutions: refiling or motion to reopen based on circumstances.
If I 751 was denied, the non citizen or the couple may refile it, or wait for the government to place the non-citizen in removal proceedings, and ask the judge to review the petition. In removal proceedings, the non-citizen will also have an opportunity to file for a relief from fraudulent marriage, often the only relief that may be available: 237(a)(1)(H) waiver. The US citizen spouse who is alleged to have also participated in a fraudulent marriage, cannot be used as a qualifying relative for the purposes of this waiver.
A person, who otherwise, qualifies may file a petition for a U visa victims of a crime that allows a person to file for a waiver, which, if granted, waives the 204(c ) fraudulent marriage related allegations.
Finally, a person may be able to file for Cancellation of Removal for non-citizens, if he/she otherwise qualifies, and their conditional status is terminated. While there is no specific waiver for 204(c ) fraudulent marriage allegations, there may be a regular fraud waiver available, in the absence of 204(c ) allegations.
These is just general explanation, and cannot be used legal advice for a specific case, but it may provide guidelines, for your research and possible solutions which will always be determined by individual circumstances.
If you need help with your Immigration case, please call our office 917 885 2261 to book a confidential consultation.