What Is Marriage Fraud Under U.S. Immigration Law?

A sham marriage is one that is entered into in order to get around U.S. immigration laws.

By , J.D.

If you are considering a fake ("sham") marriage as a means of getting U.S. lawful permanent residence (a green card), you probably already know that what you are planning is illegal. This website is not going to give you any special tips on making a fraudulent marriage look real. However, we will explain what constitutes a real marriage under U.S. immigration law, and outline the risks of entering into a fake marriage.

Definition of Marriage Fraud in U.S. Immigration Law

A sham marriage is one that is entered into in order to get around ("evade") U.S. immigration laws. (See I.N.A. Section 204(c).)

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, namely to establish a life together, following the marriage ceremony—and must prove their intention through their actions. If the couple doesn't intend to establish a life together, their marriage is a sham.

Another way in which an immigration application based on marriage can be found fraudulent is if it isn't legally valid. Say, for example, that you are already married to another person, and were never able to get a legal divorce. Even if you truly love your new spouse, this current marriage is invalid. Applying for U.S. lawful permanent residence (a green card) on the basis of an invalid marriage is, indeed, considered fraudulent.

What the U.S. Government Expects a Real Marriage to Look Like

What is the U.S. government's view of a typical 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. You certainly are not required to match every description on this listbut the fewer you match, the greater the likelihood that you will face lots of questions and close scrutiny of your application.

The "normal" married 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, birthdays, and holidays, join clubs or gyms, and have sex and children.

Typical 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. They celebrate each others' birthdays and meet each others' families.

And they might even have arguments and marital problems, but ideally will visit a counselor or other trusted adviser to help work these out.

High Level of U.S. Government Suspicion Regarding Marriage Fraud

Detecting marriage frauds is a top priority for U.S. Citizenship and Immigration Services (USCIS) and its affiliated agency, Immigration and Customs Enforcement (ICE). Based on a decades-old survey, government officers still sometimes say that up to 30% of marriages between aliens and U.S. citizens are suspect. That statistic has been shown to be deeply flawed, but its legacy lives on.

How U.S. Government Detects Marriage Fraud

To detect frauds, U.S. immigration authorities require a lot of proof that a marriage is real, including demanding more documentation than they do from other family-based immigrant visa applicants. Applicants must prove that they share their lives by providing copies of such documents as 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 at their visa interview (at a U.S. consulate) or green card interview (at a USCIS office, for applicants who are adjusting their status in the U.S.). They subject marriage-based immigrants to a longer and more detailed personal interview than other applicants go through,

The U.S. government will not normally follow a couple around or investigate their life beyond the required paperwork and the interviews it always conducts. But it has the power to do so if it sees grounds for suspicion. Inspectors can visit your home unannounced, talk to your friends, interview your employers, and so on.

By requiring more of married couples than of others, the U.S. government has set up a system that gives it a lot of information about whether a marriage is the real thing or not. U.S. immigration 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.

Second, "Stokes" Interview Required of Some Couples

If the first interview with the consular officer or USCIS officer doesn't go well, they may hold a second one, sometimes immediately. The would-be immigrant and spouse are separated and asked the same set of questions, after which their questions are compared. If, for instance, the husband declares that they always spend his birthday on the beach but the wife says they always go to the mountains, they might have a problem.

To learn more about what happens during an immigration marriage fraud interview with the USCIS, click here.)

People who enter into sham marriages most often trip themselves up just trying to get through the standard process, having thought that a fake marriage was going to be easier to get away with than it really is.

Even After Initial Approval, Newer Couples Must Go Through Two-Year Testing Period

As if the above weren't enough, the law has created a two-year testing period for couples who have been married less than two years when their green card is approved or when they enter the U.S. on their immigrant visa. This is called "conditional residence." Close to the end of that time period, they must submit an application (Form I-751) signed by both members of the couple and proving once again that the marriage is bona fide and ongoing.

Those people then face penalties, potentially including both denial of their immigration applicants and possible criminal prosecution (for both the U.S. spouse and the intending immigrant).

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