C. Using a Fake Marriage to Come to the U.S.

It is illegal for anyone to get married solely for the purpose of getting, or helping someone to get, permanent residence in the United States. There are stiff fines and possible jail terms for people who are convicted of this crime. But we would be foolish not to address the fact that many people attempt to fake a marriage to obtain a green card.

Skip Ahead: If you are getting married for legitimate reasons, you can skip this section and continue reading at Section D.

If you are considering a fake, or sham, marriage, you probably already know that what you are planning is illegal. You should also know that this book is written with the assumption that you are marrying for love, not for a green card. We are not going to give you any special tips on making a fraudulent marriage look real. However, we will outline the risks for you.

1. What Is a Sham Marriage?

A sham marriage is one that is entered into in order to get around the U.S. immigration laws. For a marriage to be valid under the law, it is not enough that the couple had a real marriage ceremony and got all the right governmental stamps on their marriage certificate. They have to intend to live in a real marital relationship following the marriage ceremony—and prove their intention through their actions. If the couple doesn’t intend to establish a life together, their marriage is a sham. (For more on what USCIS considers to be a real or bona fide marital relationship for purposes of green card eligibility, see Chapter 2, Section B.)

2. Will You Get Caught?

Detecting marriage frauds is a top priority for USCIS. USCIS officers still quote a survey from the 1980s which found that up to 30% of marriages between aliens and U.S. citizens are suspect. That survey has since been shown to be deeply flawed, but its legacy lives on.

In order to detect frauds, the immigration authorities require a lot of proof that a marriage is real, including more documentation than for other family-based immigration applicants. They subject marriage-based immigrants to a longer and more detailed personal interview and a two-year testing period for couples who have been married fewer than two years.

The government will not normally follow you around or investigate your life beyond the required paperwork and the interviews it always conducts. But it has the power to look deeply into your life if the authorities get suspicious. Government inspectors can visit your home, talk to your friends, interview your employers, and more. By requiring more of married couples than others, the government has already set up a system that gives it a lot of information about whether your marriage is real.

What is the U.S. government’s view of a normal marriage? The statutes and regulations don’t go into detail on this, so the following comes from a combination of court cases and attorneys’ experiences.

According to USCIS, the normal couple has a fair amount in common. They share a language and religion. They live together and do things together, like take vacations, celebrate important events or holidays, and have sex and children. Normal couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses.

The government requires applicants to prove that they share their lives in a way similar to what is described above. Applicants do this by providing copies of documents like rental agreements, bank account statements, and children’s birth certificates. The government further tests the validity of the marriage by talking to the applicant and usually to his or her spouse. Every marriage-based applicant for a visa or green card (including fiancés), whether they are applying in the United States or overseas, will have to attend a personal interview with a U.S. government official.

U.S. government officials have developed amazing talents for discovering fraud by examining what look like insignificant details of people’s lives. To ferret out lies, they have learned to cross-check dates and facts within the application forms and between the application forms and people’s testimony.

Example:
Rasputin has married Alice, a U.S. citizen, in the hopes of obtaining a green card. They submit an application for a green card in the United States. At Rasputin’s green card interview, the officer asks for his full name, his address, and how he entered the United States. Rasputin can’t believe how easy this all is. The officer goes on to ask for the dates of all of Rasputin’s visits to the United States, the date of his divorce from his previous wife and the dates of all of his children’s births. Rasputin is getting bored. Then the officer notices something funny. The date of birth of Rasputin’s last child by his former wife is a full year after the date of their supposed divorce. The officer becomes suspicious, and Rasputin and Alice are taken to separate rooms for fraud interviews. They are examined in minute detail about their married lives. When neither of them can remember what the other one eats for breakfast or what they did for their last birthdays, the case is denied and referred to the local Immigration Court for proceedings to deport Rasputin.

If a couple has been married for less than two years when the immigrant first receives residency, USCIS gets a second chance at testing the validity of the marriage. The immigrants in such couples don’t get a permanent green card right away. Instead, the law requires that their first green card expire after another two years. (The technical term is that the immigrant has “conditional residency.”)

When the two years are up, both members of the couple must file an application for the immigrant’s permanent residency. They must include copies of documents showing that they are still married and sharing the important elements of their lives. This form is mailed to a USCIS office. As USCIS knows, it is extremely difficult for members of sham marriages to keep things together for a full two years, even on paper. If the marriage appears to be a real one when the two years is up, the conversion from conditional to permanent residency won’t involve an intensive investigation—the application process doesn’t even include an interview if the written application looks legit.

Example:
Maria married Fred, a U.S. citizen, in order to get a green card. Fred was a friend of Maria’s, who simply wanted to help her out. Maria manages to get approved by the consulate at her immigrant visa interview, and enters the United States. Because their marriage is new, Maria is given two years as a conditional resident. During those two years, Maria overdraws their joint checking account three times. Fred gets angry and closes the account. Maria has an accident with their jointly owned car and it goes to the junk yard. Fred buys another car in his own name and won’t let Maria drive it. Fred gets fed up and wonders why he got into this in the first place. He falls in love with someone else and insists that Maria move out. At the end of her two years of conditional residency, Maria can’t get Fred to answer her phone calls. In desperation, she fills out the application form on her own, fakes Fred’s signature and lists his address as her own. However, the only documents she can attach are the same bank account statements and car registration she submitted to the consulate two years ago. USCIS checks the files and notices this. They call her and Fred in for an interview. It’s not long before the truth comes out and enforcement proceedings are begun.

As you see from the examples above, people who enter into sham marriages most often trip themselves up just trying to get through the standard process. It’s not that USCIS can read people’s minds or that it spends all its time peeking into applicants’ bedrooms. They simply catch a lot of people who thought that a fake marriage was going to be easier than it really is.

3. What Happens If You Are Caught

The law pretty much speaks for itself on what happens to immigrants who commit marriage fraud. You can face prison, a fine or both:

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 5 years, or fined not more than $250,000, or both (I.N.A. § 275(c), 8 U.S.C. § 1325(c)).

The U.S. citizen or resident could also face criminal prosecution, including fines or imprisonment, depending on the facts of the case. They are most likely to be prosecuted for either criminal conspiracy (conspiring with the immigrant is enough; see U.S. v. Vickerage, 921 F.2d 143 (8th Cir. 1990)), or for establishing a “commercial enterprise” to get people green cards (see I.N.A. § 275(d), 8 U.S.C. § 1325(d)).

The extent to which these penalties are applied depends on the specifics of each case. The government tends to reserve the highest penalties for U.S. citizens or residents engaged in major conspiracy operations, such as systematically arranging fraudulent marriages. But that doesn’t mean that small-time participants in marriage fraud can count on a soft punishment—though most immigrants will probably simply be deported and never allowed to return.

Next: D. How to Use This Book

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