“As required by law, U.S. Citizenship and Immigration Services will deny immigration petitions and applications for adjustment of status where there is evidence of fraud involved.”

One of the quickest ways to adjust one’s status in the United States is through a lawful marriage to a U.S. citizen. As a result, the Immigration Service saw many sham or business marriages. To protect the agency and the country from fraudulent applications and marriages, Congress passed Immigration Marriage Fraud Amendments of 1986.

Marriage now results in conditional residence status unless it is more than two years old at the time of granting the immigrant status. Two year period is measured from the time residency is granted. Conditional residence status may be terminated if before the second anniversary of the grant of conditional residence, the Immigration Service determines: 1) marriage was judicially terminated, such as a divorce, or 2) marriage was entered into to gain an immigration benefit, or 3) the couple failed to petition (Form I-751) the Immigration Service to remove conditions within 90 days prior to second anniversary of conditional residence or the couple failed to attend their interview, unless the non-citizen has filed Form I-751 seeking a waiver of the joint filing requirement. Conditional residence becomes permanent residence after second anniversary of status if it is not terminated for any of the above reasons.

Immigration Marriage Fraud Amendments Act covers spouses, children of spouses, and K visa fiancés.

If the Immigration Service suspects that an alien has entered into a sham marriage, that alien is subject to removal from the United States. For that to happen, the marriage must be fraudulent at its inception or from the very beginning.

To determine whether the marriage was fraudulent at inception, the Immigration Service looks at several factors. The question that becomes relevant is: did the bride and groom intend to establish a life together? The government looks at the subjective state of mind. However objective factors are also considered. The conduct of parties before and after the marriage is relevant. To prove validity of the marriage, the couple must present evidence which may include, but is not limited to, insurance policies, property, leases, income tax, bank accounts, etc. Additionally, the couple must be consistent in its answers to the immigration officer.

If the Immigration Service makes a final determination that an alien entered into a marriage for the sole purpose of gaining an immigration benefit, then that becomes a permanent bar to approval of any subsequent immigrant visa petitions.

Marriage fraud is a serious crime that carries with it a severe monetary penalty and even possible jail time for the citizen spouse. For the alien spouse, a determination of a sham marriage means a possibility of never becoming a Lawful Permanent Resident in the United States and an imminent removal.

Any alien who enters into a marriage for the sole or primary purpose of evading U.S. immigration law is deemed to have engaged in marriage fraud and is inadmissible on that basis. An alien is any person who is not a citizen or national of the United States. Any alien who is found to have engaged in marriage fraud can be expelled from the United States through a removal process.

Immigration Marriage Fraud law: Legal Basis

Marriage fraud is covered by Immigration and Nationality Act (INA) § 237(a)(1)(G), 8 U.S.C. § 1227(a)(1)(G). In order to be deemed one who has engaged in “marriage fraud,” an alien must enter into a marriage for the sole or primary purpose of evading U.S. immigration law.

Under § 1227(a)(1)(G), an alien is considered deportable as having procured a visa or other documentation by fraud and is considered to be in the United States illegally if:

1. The alien obtains any admission into the United States with an immigrant visa or other documentation procured on the basis of a marriage entered into less than 2 years prior to such admission and that, within 2 years after any admission, is judicially annulled or terminated, unless the alien establishes to the satisfaction of the Attorney General that such a marriage was not contracted for the purpose of evading any provisions of the immigration laws, or
2. It appears that the alien has failed or refused to fulfill the alien’s marital agreement, which in the opinion of the Secretary of Homeland Security, was made for the purpose of procuring the alien’s admission as an immigrant.

Marriage Fraud Amendments

In order to reduce marriage fraud, Congress enacted the Immigration Marriage Fraud Amendments of 1986. These amendments provide that:

• If the person is relying on a marriage less than 24 months old when he or she (whether the spouse or son or daughter of a United States citizen or of a lawful permanent resident) receives LPR status, that status will be only conditional. The status can be terminated, and two years after receiving status, the person must apply to have the “condition” removed so that he or she will be a full-fledged LPR.
• If the status is terminated, the alien may request a review of the determination in removal proceedings. In such proceedings, the government must show that the marriage was entered into for the purpose of procuring the alien’s entry as an immigrant, that the marriage was judicially annulled or terminated, other than through the death of a spouse, or that a fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparation of a lawful petition) for the filing of a petition with respect to the alien spouse or alien son or daughter, INA § 216, 8 U.S.C. § 1186a.

Marriage During Removal Proceedings

Aliens who marry during removal proceedings are barred from adjusting their status or seeking immigrant visas on the basis of a marriage entered into while they are in administrative or judicial proceedings. Approval of a visa petition for immediate relative or preference status on the basis of such marriage is limited unless it is shown that the marriage was entered into in good faith, in accordance with the law, and not for the purpose of procuring a visa, INA § 204(g), 8 U.S.C. 1154(g).