Getting a Marriage-Based Green Card After a Past Fraudulent Marriage

If U.S. Citizenship and Immigration Services (USCIS) or another U.S. immigration agency such as an embassy or consulate finds that you entered into a marriage with a U.S. citizen or lawful permanent resident for the primary purpose of getting a U.S. green card (a fraudulent marriage), you will not be eligible to have any other visa petitions approved on your behalf later. This is known as the "Marriage Fraud Bar," found in the Immigration and Nationality Act at I.N.A. § 204(c).

We'll get into the details of this bar here, specifically addressing foreign nationals with a past marriage fraud finding in their file who once again marry a U.S. citizen or resident and hope to apply for a green card.

What Is a Fraudulent Marriage?

To understand what a fraudulent marriage is, you first need to understand the legal definition of "fraud." In the immigration context, fraud broadly involves the knowing or willful misrepresentation of a material fact for purposes of gaining a benefit the applicant would not otherwise be eligible to receive.

So, people who have sought a a green card based on a marriage that was not entered into legitimately can be said to have misrepresented the material fact that they were in a legitimate marriage for the purpose of obtaining an immigration benefit. That's fraud.

To Whom Does the Marriage Fraud Bar Apply?

U.S. immigration law is unforgiving with respect to findings of marriage fraud in visa and green card applications. The "Marriage Fraud Bar" prohibits people who are seeking to become green card holders from having a petition approved on their behalf if they have ever been involved or attempted to be involved in a so-called "fraudulent marriage."

The exact procedural route the foreign national takes doesn't matter. The bar covers both foreign nationals who are filing Forms I-130 and I-485 adjustment of status applications for a green card here in the U.S. and those filing immigrant visa applications for a green card from abroad (consular processing).

But What If This Second Marriage Is Really Real?

If you have entered into a fraudulent marriage previously, it does not matter how valid your current marriage to a U.S. citizen or permanent resident might be when it comes to obtaining a green card. You and your current spouse could have five children together and plenty of evidence that your marriage is real or "bona fide." By law, U.S. immigration agencies are forced to look back at the prior marriage that was found to be a fraud, and you'll need to be ready to disprove that (as described more below).

Does It Help If You're Still Married to the Same Person as Before?

The legal analysis is basically the same whether you are applying for U.S. residence based on the existing marriage to the same person as when you applied before or based on a new marriage with someone else.

Past Denial for Reasons Other Than Fraud Might Not Bar Future Visa Applications

If you had applied for a green card in the past based on your marriage to a U.S. citizen or lawful permanent resident, and that application was denied, it will be important to review the reasons for the denial before filing a new marriage-based green card application.

If that earlier application was denied due to issues unrelated to fraud, such as insufficient evidence, lack of eligibility, inadmissibility, abandonment due to your failure to attend an interview at USCIS or the consulate, or because the marriage simply failed before your approval (for reasons not involving fraud), such reasons will not bar you outright from applying for future immigration benefits. They could, however, still negatively affect your future applications, so you'll need to research the reason for the denial and find ways to overcome it.

How to Know Whether a Past Marriage Was Found to Be Fraudulent, and How to Argue Against This Finding

The best way to learn whether USCIS or another agency found fraud in your past visa application is to obtain a copy of its denial of your Form I-130 or Form I-485 application. If you see terms such as "sham marriage," "fraudulent marriage," or marriage "entered into for the sole purpose of circumscribing immigration law," that means a conclusive finding of fraud.

To counter this, you will need to demonstrate that the earlier marriage was in fact not fraudulent in order to be granted a green card based on your new (or continued) marriage. You will need to show that the past marriage was a bona fide or real marriage.

If you can't tell for sure whether a past finding of fraud is in your immigration record, you might still want to offer evidence that the past marriage was bona fide, just in case. USCIS is supposed to make an independent determination of whether the past marriage was fraudulent based on any evidence before it (such as new evidence of the legitimacy of the marriage that you furnish with the new immigration petition).

In many scenarios, USCIS restates its claims regarding marriage fraud from its earlier denial within its fact-finding on the new marital petition. These claims are typically outlined in a document titled "Notice of Intent to Deny" (NOID), which USCIS issues after a review of the I-130 petition and any supporting evidence. For green card applicants applying from within the U.S., this normally occurs after the adjustment of status interview.

You will be given a period of time after receipt of the NOID to rebut USCIS's claims and demonstrate that the past marriage was not fraudulent.

Examples of Evidence to Demonstrate That Past Marriage Was Not Fraudulent

There are some important pieces of evidence you will want to gather, as well as issues to address, in order to demonstrate that a past marriage was not fraudulent. These include:

• Sworn affidavit from your prior or current spouse stating that your marriage is or was real. For information on how to draft an affidavit, see Creating Substitute Documents or Affidavits for Immigration Applications. An affidavit needs to be detailed and explain any problems with your previous application that led to a finding of fraud. If USCIS previously found fraud in denying your marriage-based petition, and you are still married to the same person, who is refiling a new petition on your behalf, this step is especially important. If your spouse withdrew a previous petition and hinted that the marriage might have been entered into fraudulently, your spouse will need to explain why this was either incorrect or why U.S. immigration officials might have misinterpreted the reasons for a withdrawal. Your spouse might also need to address any specific statements they made and the reasons behind them. For example, if you were having marriage difficulties and your spouse withdrew the petition for that reason, then your spouse will need to discuss these issues in the affidavit. If you are able to get a prior spouse to cooperate with you by providing an affidavit stating that your past marriage failed but was entered into with true intentions, this can greatly help your current application. Remember, you do not need to prove that your past marriage was a "good" marriage, only that it was a real one.

• Direct evidence contradicting USCIS's reasons for making a finding of fraud regarding the past marriage. If a USCIS denial questioned, for example, whether you and your spouse lived together or whether you shared financial assets, then you'll need to provide concrete evidence alleviating these concerns. You could include such items as IRS and state-government-certified transcripts of income tax returns, detailed monthly bank statements for joint accounts showing that you and your spouse were actively sharing finances, a signed copy of a residential lease by all parties (including the landlord) with an accompanying affidavit from the landlord affirming that both you and your spouse lived together on the premises, and if you co-owned property, proof of joint ownership with mortgage statements showing both names, and a copy of the deed.

• Personal affidavit or affidavits from third parties. These should be from people with direct knowledge of information specifically contradicting the reasons USCIS deemed the marriage to be fraudulent. USCIS is not going to be impressed by affidavits stating merely that the couple was in love and looked great together. Instead, USCIS needs to see concrete evidence that will help alleviate its concerns. For instance, if USCIS questioned whether you and your spouse actually lived together, and the two of you in fact had a roommate (or a friend or family member staying with you) during part of the marriage, ask the roommate to submit an affidavit discussing first-hand knowledge of the marital relationship and the living arrangements. The type of people who are most helpful to write affidavits rebutting marriage fraud findings are those who can write in detail about specific incidents or examples (such as recalling in detail double dates they went on with you and your spouse).

• Written rebuttal of any USCIS findings of inconsistencies. If separate interviews were conducted of you and your spouse (sometimes referred to as a "Stokes interview"), and USCIS listed inconsistencies in your respective testimonies during this interview as a main reason for denying the application, you need to deal with these findings. Draft a written rebuttal of as many of these supposed inconsistencies as possible. Some reasonable explanations for inconsistencies between your and your spouse's testimony could include your failure to understand the question, language barriers, an inaccurate recording of the testimony by the interviewer, a good faith reason for the interviewee not knowing the correct answer, and your having given a partially correct or mostly correct answer that USCIS handled as an inconsistency.

The above list is not exhaustive. USCIS handles each situation of alleged marriage fraud on an individual basis.

Getting Legal Help

If you are applying for U.S. lawful permanent or conditional residence (a green card) and are up against USCIS's past fraudulent marriage finding, be sure to consult an attorney. An experienced immigration attorney will have in-depth knowledge of the law and court decisions relating to findings of marriage fraud and can prepare a strong case to combat a previous finding of fraud. See How Expensive Is an Immigration Lawyer?.