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

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

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

A sham marriage is one that is entered into in order to get around ("evade") the 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 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.

How U.S. Government Detects Marriage Fraud

Detecting marriage frauds is a top priority for U.S.Citizenship and Immigration Services (USCIS) and its affilated agency, Immigration and Customs Enforcement (ICE). Government 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.

To detect frauds, U.S. 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 than other applicants go through, as well as 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.

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, 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.

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

U.S. immigration authorities usually expect 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 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.).

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 then 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 may 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.

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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