What is a Sham Marriage?
Immigration Marriage Fraud Laws and Penalties
One of the primary goals of the U.S. immigration laws is to reunite families, including married couples. However, the apparent ease of obtaining a green card (U.S. lawful permanent residence) based on marriage has led to abuse. Couples regularly enter into sham marriages, for money or other benefits, in order to obtain a U.S. green card for the immigrant.
To combat such abuse, Congress has enacted extensive legislation giving the U.S. immigration authorities the power to investigate and discover instances of marriage fraud (with immigration consequences for the intending immigrant) and creating criminal penalties for those who commit marriage fraud.
Why People Commit Marriage Fraud
U.S. immigration law offers limited avenues to people wishing to obtain a green card. Many whose job skills are not in sufficiently high demand, or whose family relationships are not sufficiently close, find the door closed upon them.
Meanwhile, the spouses of U.S. citizens and lawful permanent residents (green card holders) are particularly favored under the immigration laws. Spouses of U.S. citizens are considered “immediate relatives,” and eligible for an immigrant visa or green card just as soon as they can get through the application process. Spouses of lawful permanent residents, while they face an annual limit on the number of allotted visas and therefore a wait of a few years, at least wait less time than other relations.
This naturally leads some would-be immigrants to keep an eye on the possibility of marriage to a U.S. citizen. If unable to find someone they truly want to marry, they may end up marrying a friend or paying a stranger to help them immigrate. Such cases are considered marriage fraud.
The immigration authorities accordingly place marriage fraud high on their list of enforcement priorities. U.S. Citizenship and Immigration Services (USCIS, formerly known as the Immigration and Naturalization Service or INS) does not keep actual statistics on marriage fraud, but has stated, at various times, that between one third and one fifth of the marriage-based applications that it receives are based on fraud.
What Is Marriage Fraud?
U.S. immigration law (namely the Immigration and Nationality Act, or I.N.A.) does not actually define marriage fraud. In fact, it doesn’t even define the terms “marriage,” “spouse,” “husband,” or “wife.”
However, the law does state that USCIS will deny an immigration petition if the alien has in the past, or is currently attempting or conspiring to, “enter into a marriage for the purpose of evading the immigration laws.” (I.N.A. Section 204(c).) In other words, if the purpose of the marriage is to get the immigrant a green card, it’s a fraud.
How Marriage Fraud Is Discovered
At various points in the immigration process, USCIS will require applicants to prove that the marriage is “bona fide,” or was entered into in “good faith.” Courts have interpreted that to mean that the marriage was entered into with the idea of establishing a life together. (Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975).)
The immigration laws require USCIS to pay particular attention to marriages that were less than two years old at the time that either the green card was approved (if the application was made in the U.S.) or the immigrant enters the U.S. with an immigrant visa (if coming from overseas). After applying for a green card, such immigrants will be granted one that is only conditional – that is, valid for two years. (See I.N.A Section 216.)
Within the 90 days leading up to the end of those two years, the couple must submit a new application to USCIS and attach documents proving that their marriage is ongoing and still the real thing. Waivers are available for cases of divorce (which, by itself, is not seen as an indication that the marriage was a sham); but if the couple is simply no longer living together or the U.S. spouse is unwilling to sign onto this joint petition, there is a good possibility that USCIS will deny the petition. If the evidence warrants it, USCIS may also possibly initiate an investigation for marriage fraud.
Even if the couple makes it through this part of the process, however, the marriage may be scrutinized again if and when the immigrant later applies for U.S. citizenship. Particularly if the couple has divorced, USCIS may ask for further proof that the marriage was bona fide. .
Although most marriage-based cases are decided based on documentary evidence, the immigration authorities have broad investigative powers. They have been known to visit the couple’s home, talk to their friends, check with their employers, and so on.
Penalties for Marriage Fraud
A finding of marriage fraud can have both civil and criminal consequences for the immigrant, and criminal consequences for the U.S. citizen or permanent resident petitioner.
An immigrant found to have committed marriage fraud could be removed from the United States (deported). If he or she still holds a nonimmigrant (temporary) visa, it would be revoked. In addition, the fraud would remain on the person’s immigration record, making it virtually impossible to obtain any future U.S. visa or green card.
With regard to criminal penalties for the alien as well as the U.S. petitioner, the law says:
Any 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 five years, or fined not more than $250,000, or both.
Punishment can also be meted out under Title 18 of the U.S. Code, at Section 1546. This section prohibits, among other things, making false statements under oath. Sentencing under this section starts at ten years for a first or second offense.
The most severe penalties are usually applied to people who engage in conspiracy operations, such as systematically arranging fraudulent marriages. But that doesn’t mean that a U.S. citizen or resident who enters into a fraudulent marriage on his or her own will not also be punished.
If the U.S. spouse is only a permanent resident, not a citizen, he or she might be placed into removal proceedings and ultimately deported based on the finding of marriage fraud.