What Is Marriage Fraud?
Marriage Fraud, as defined in Immigration and Nationality Act § 204(c), occurs when someone gets married or attempts to get married for the purpose of evading immigration laws. Generally, this is for the sake of acquiring a benefit, such as getting a green card through marriage.
If the attorney general determines that you are guilty of marriage fraud, there are a few very harsh immigration and criminal consequences. However, the initial determination does not mean that all hope is lost, as relief might be available depending on the circumstances.
Standard for a Finding of Marriage Fraud
As explained in Matter of P. Singh, the standard of proof for a finding of marriage fraud requires “substantial and probative” evidence. The case further explains that “the evidence has to be more than probably true that the marriage if fraudulent.” The determinator of marriage fraud can consider all direct and circumstantial evidence and must consider all relevant evidence as a whole before making a decision.
Factors often considered will include:
- Significant inconsistencies in evidence provided, coupled with minimum documentary evidence of a shared life
- Evidence of an attempt to knowingly mislead immigration officials about cohabitation, joint finances, or other aspects of the marriage
- Evidence/confirmation that either spouse has a different romantic partner
- Evidence that family members and close acquaintances do not have knowledge of the marriage
- Whether one or both parties files their taxes as “single”
- If the marriage terminates shortly after the acquisition of immigration benefits
Under INA § 204(c), anyone found to have committed marriage fraud will be ineligible for any other petitions for immigration benefits. This means that family or employment-based petitions will not be approved for someone found guilty of marriage fraud, even if the petitions are valid. However, the individual may still be eligible for other forms of relief such as asylum, withholding of removal, and cancellation of removal.
INA §212(a)(6)(C)(i) adds that anyone who sought to get a visa through fraud or misrepresentation will be inadmissible to the United States. Additionally, §237(a)(1)(A) has a special provision where anyone found to have engaged in marriage fraud will be immediately deportable.
Under INA §275(c), anyone found guilty of marriage fraud can face up to five (5) years of imprisonment, fined up to $250,000, or both. As is typical for a criminal case, the standard of proof for criminal penalties requires evidence showing guilt beyond a reasonable doubt. This is a higher standard of proof than that required for immigration consequences, so a finding of guilt for immigration consequences does not immediately mean a criminal conviction is certain.
It is important to note that a criminal conviction for marriage fraud can also have further immigration consequences. For instance, the criminal conviction can be determined to be a crime involving moral turpitude, which can make an individual removable (if in the country) and inadmissible to the country (if attempting to enter legally at a future time).
What to do if Accused of Marriage Fraud or Charged with Marriage Fraud
If you find yourselfaccused of marriage fraud, you should prepare to fight the accusation right away. This will usually require the assistance of an experienced attorney to go over the evidence against you and help you prop up evidence of your valid marriage.
If you are beyond that step and a final determination of marriage fraud has been made against you, you should consult with an attorney to fight this determination. You can do this in a few ways:
- Appeal the decision to the Board of Immigration Appeals;
- Refile a new immigrant visa petition; or
- File a motion to reopen the case with USCIS due to new evidence that has come to light
Each of these options will allow you to fight the determination that you committed marriage fraud. Each has its own benefits and downsides in terms of ease, timing, and financial cost that you will want to discuss with an attorney to decide the best process for you.
The biggest piece of advice we can give is to refrain from attempting to get married purely for immigration benefits. The consequences of getting caught are very serious, the relief available is very limited, and the relief is difficult to get. If you have been wrongly accused of marriage fraud or want to request a waiver, the next piece of advice we can give is to get the help of an experienced immigration attorney. Given the circumstance you are, it is imperative that you work with someone that knows the law and can give you the best chance at relief.
If you need further guidance or have specific questions about your case, you can schedule an initial consultation with us today, don't hesitate to contact us at (949) 478-4963.