Immigration and Nationality Act defines marriage fraud as an occurrence where someone gets married or tries to get married to evade immigration laws. People who are guilty of this often do it to acquire a benefit, like getting a marriage-based green card.
Cases like these are usually taken to court where the attorney general declares suspects guilty of marriage fraud if found so. If a couple is found guilty during marriage fraud finding, they’ll face some harsh consequences, both immigration and criminal conviction.
However, when a couple is found guilty of defrauding the US government through this act, it doesn’t mean all is lost. Depending on the circumstances surrounding the situation, someone found guilty of immigration fraud may find some relief.
In this article, we will discuss several things concerning marriage fraud, its consequences, and the possible solutions. The USCIS (United States Citizenship and Immigration Services) takes evading immigration laws seriously, and defaulters face serious infringement.
Due to the delicate nature of applying for the green card, we often recommend that immigrants seek the service of a standard law firm. With the help of an experienced attorney, you can ensure that you don’t make mistakes. Also, if you’re found guilty of a fraudulent marriage, working with an immigration attorney is your best option for getting out.
Can I Get a Waiver for Marriage Fraud?
You can apply for a section 237(a) (1) (H) waiver if found guilty of marriage fraud and deemed inadmissible. However, this provision doesn’t cover a new immigrant visa petition or any subsequent petition, but a chance to waive and avoid removal proceedings.
The USCIS issued that there are two steps it takes towards considering an individual’s eligibility for a waiver. First, the applicant needs to show that they meet the statutory and regulatory requirements for the said waiver.
Also, the petitioner needs to prove and establish that they merit a favorable exercise of discretion. The Attorney General is responsible for wavering misrepresentations like marriage fraud, curing the invalid visa regardless of whether one is innocent or not.
This waiver or preference status is available to immigrants related to a U.S citizen, whether as a spouse, parent, daughter, or son. It is also available to foreign nationals lawfully admitted for permanent residence status in the United States.
What Is Jail Time for Marriage Fraud?
An individual found guilty of intentionally entering into a marriage to evade immigration policies will be imprisoned for five years at the most. They either do five years in prison or pay a $250,000 fine at the most – or they do jail time and pay a fine.
People guilty of marriage fraud can also face charges of visa fraud, conspiracy, perjury or making false statements, or harboring an alien. Each of those charges carries its own prison sentence and fines, which will be added to the initial sentence.
As far as enforcing penalties go, it depends on the specifics around a couple’s case. Most of the time the government reserves the worst punishment for citizens or residents of the United States who are guilty of conspiracy operations.
For example, U.S. citizens who arrange fraudulent marriages for profit will get the worst punishments, and they’ll be enforced. A typical example is a major law enforcement action that took place in 2019 where almost 100 people were charged.
Is There a Waiver for 204 C?
The section 204 c marriage fraud bar is permanent; there is no waiver available for it. This section is specifically for individuals who have been discovered to engage in, attempted to, or conspired to engage in marriage fraud.
It prevents them from having subsequent petitions approved on their behalf. It also prevents the individual from getting approval for subsequent family-based or employment-based visa petitions filed on their behalf.
However, the section doesn’t bar an immigrant from other forms of relief, including cancellation of removal, withholding of removal, and other immigrant status paths. Meanwhile, 204(c) doesn’t necessarily apply in every case of a denied benefit request due to insufficient substantial and probative evidence in establishing the bona fide marriage.
For the rule to hold, the adjudicating officer or DA has to establish that the individual entered the marriage fraudulently or that the previous marriage has ended lawfully.
Therefore, in the case of insufficient evidence to prove the legitimacy of a marriage, section 204 c does not attach. It only holds when it’s been proven beyond reasonable doubt that the individual is guilty of the marriage fraud allegations.
Section 204(c) is considered when the prior visa petition for immigrant visa is under adjudication. The prior petition filed for previous marriage or any subsequent petition filed must be bona fide for an immigration judge to rule on it.
How Does the USCIS Detect Marriage Frauds?
The USCIS determined that some marriages are fraudulent for the sole purpose of getting green cards. As such, to make finding of marriage fraud easier, it has set a system that supplies much information about the reality of a marriage by requiring more of married couples.
It cross-checks dates and the information in application forms as well as between application forms and the applicant’s testimony to fish out lies.
The US immigration department set quite a number of rules for marriage fraud finding, and that includes a review of the immigration law relating to marriage fraud finding. They take it seriously enough to demand more documentation from family-based immigrant visa applicants.
In a sham marriage, two people get married for immigration purposes, among other reasons; they don’t have an actual marriage. To establish the reality of their marriage, applicants have to prove that they share their lives.
They must produce documents like rental agreements, children’s birth certificates, and bank account statements. Then, the USCIS tests the validity of the marriage further by conducting a green card interview with the applicant. Marriage-based immigrants are subjected to a much longer and more detailed interview than other applicants.
The government doesn’t typically investigate or follow couples around beyond the required paperwork and interviews it conducts. However, it is at liberty to go to extra lengths to investigate any suspicion it may have concerning the marriage. That may include inspectors visiting your home unannounced, interviewing your employers, and speaking with your friends.
How Do You Prove a Sham Marriage?
To prove a marriage is sham, substantial and probative evidence needs to be provided and should be more than “probably true.” The officer responsible for determining marriage fraud can consider all circumstantial and direct evidence as well as all relevant evidence before deciding.
To prove a sham marriage, the immigration judge of a sham marriage will consider the following factors:
- The substantial and probative evidence provided had significant inconsistencies and there isn’t enough documentary evidence that the couple share their lives together;
- Proof that a beneficiary previously attempted to knowingly mislead immigration officials about aspects of the marriage, including cohabitation, alien’s file, and joint finances;
- Evidence and confirmation that both the beneficiary and petitioner have separate romantic partners;
- Termination of the marriage shortly, typically within two years, after the beneficiary acquired the immigration benefits;
- Neither party’s family members and close acquaintances have any knowledge of the marriage;
- If one or both the beneficiary and petitioner file their taxes as “single.”
Is It Possible to Get a Reversal of INA 204 (C) and Approval of I-130 and I-485?
The USCIS field office reconsiders and reverses its denial of citizens’ immigration appeals when the affected individuals appeal under INA 204 c – also known as marriage fraud bar. The BIA (Board of Immigration Appeals) is at liberty and has the authority to review such decisions. For INA 204 C, BIA noted that evading the immigration laws will amount to not enjoying immigration benefits.
For instance, a U.S. citizen spouse client for whom the USCIS denied form I-130 petition for her immigrant spouse filed an appeal for the reversal of INA 204 C. The USCIS vacated the section 204(c) without an order from the BIA and approved the petition.
The spouse got a reversal of the finding of marriage fraud and got their I-130 approved. Additionally, the applicant got their concurrently filed form I-485 application for conditional permanent resident status – thanks to his immigration lawyers.
All of these happened within three months of the applicant’s lawyer filing the Notice of Appeal. Consequently, it happened within only two months of submitting the legal memorandum to support the filed appeal by the permanent resident.
What Are the Penalties for Marriage Fraud and Limited Reliefs?
Attempting to or succeeding in attempting to procure an immigration benefit through a fake marriage results in inadmissibility or deportability. The issue of bona fides is one that is taken very seriously, especially relating to a U.S. citizen spouse. Your application can be denied based on several factors including inability to supply a valid phone number, failure to prove any crime involving moral turpitude.
Whether it is your first marriage or second, the Department of Homeland Security, in its broad phrasing, must ensure that a U.S citizen spouse proves valid marriage.
Which of the penalties the individual gets of the two categories depends on his alien status. Apart from deportability, inadmissibility, and criminal penalties, an individual found to have committed marriage fraud won’t have a 204(c) petition approved for him. These petitions include family-sponsored and employment-based visa petitions filed on his behalf.
For the inadmissibility penalty, there is a limited possibility of a waiver through section 212(i), which relies on the system’s discretion. An immigrant may apply for the waiver if they are a lawful permanent resident or relative of a U.S citizen.
That is, on the grounds that the refusal of their admission will result in extreme hardship – for them or their relatives. However, BIA noted that the temporal requirement suggest that section 204(c) limits the applicability of section 212(i) for applicants found guilty of marriage fraud.
Nevertheless, the 204(c) only attaches when it has been proven beyond reasonable doubt that the alien entered the marriage with the intention of evading the immigration laws. It doesn’t apply when there is insufficient probative evidence that a marriage is a good faith marriage.
When Can a Marriage Fraud Defaulter be Deported?
Deportation is another consequence of a fraudulent marriage, which is also linked with inadmissibility. Section 237(a)(1)(A) of the INA states that an alien inadmissible at the time of status adjustment or entry is deportable.
The section 237 contains a deportability provision that an alien is deportable if they gain status based on marriage. Also, it stands if they judicially annul or terminate the first marriage within two years and cannot establish that the marriage was real.
Additionally, an alien who fails to establish that they didn’t enter the marriage to circumvent the immigration law is deportable. The United States government is typically saddled with the responsibility of proving an alien’s deportability by clear and convincing evidence without reasonable doubt.
Meanwhile, the 237(a)(1)(H) provides for a discretionary deportability waiver for an alien determined to be deportable. This section provides relief for all willful and innocent frauds, but you have to be an LPR or relative of a US citizen to qualify.
Who Is Ineligible for a Section 212(i) waiver?
An alien deemed inadmissible under section 212(a)(6)(C) for a fraudulent marriage is likely ineligible for the waiver when applying for an immigrant visa. Most aliens who fall in this category lack a qualifying relative and the 204(c) will likely render the waiver moot.
The 204(c) would prevent the approval of the immigrant visa petition, whether or not the immigrant meets the temporal requirement for 212(i) waiver. The question is when the section 204(c) attaches, which is central when determining the relevance of a 212(c).
An alien may be found inadmissible if they submit false documents or supply false information concerning a fictitious marriage during visa application. However, in this case, the alien isn’t subject to section 204(c), meaning there is a possibility of getting a waiver.
Outside the immigrant visa petitioning context of section 204, the immigrant may apply for a waiver in special application types. In cases where they don’t seek the waiver in conjunction with an employment or family-based petition, they may qualify for a waiver.
What Can You Do If You’re Accused of Marriage Fraud?
If you’re accused of marriage fraud, you should get ready to fight the allegations immediately. You will naturally need the help of an experienced attorney who will review the evidence against you. Then, they’ll help you gather evidence to prove your marriage is valid. However, if the allegations have turned to a full-fledged determination of marriage fraud, you should get ready to fight the determination by:
- Appealing the decision denying to the Board of Immigration Appeals (BIA) with the help of an attorney,
- Filing a motion to reopen the case with the United States Citizenship and Immigration Services, provided you have new evidence, or
- Simply refilling a new immigrant visa petition.
You can take any of these options to fight the determination of the government that you committed marriage fraud. Each of the options has its merits and demerits in terms of financial cost, timing, and ease of application.
Hire Herman Legal Group!
Going through a prior marriage fraud bar alone may not be the best thing to do. The more you try, the more of a mess you get yourself in. The best thing is to have an immigration attorney get the job done for you. Interestingly, Herman Legal Group has qualified immigration attorneys with a reputation that precedes them.
You can get started with us today by scheduling a consultation which can be held virtually using ZOOM, Skype, or Google Meet. You can schedule this consultation by calling us via +1-800-808-4013 or +1-216-696-6170. If you are interested in scheduling a consultation with Richard Herman, a seasoned immigration lawyer and the best out there, you can book online.
While there may be some solutions for applicants’ marriages determined to have been fraudulent, the best solution is to desist from it entirely. The immigration and criminal consequences for marriage fraud are dire and there is limited relief available, which is very difficult to get.
Meanwhile, if the determination for marriage fraud against you is false, we recommend hiring an experienced immigration attorney. The best thing you can do is have an attorney client relationship with someone who already knows the in and out of the law.