If U.S. Citizenship and Immigration Services (USCIS) or another immigration agency such as a U.S. consulate finds that you entered into a marriage for the primary purpose of getting a green card, you will not be eligible to have any other visa petitions approved on your behalf later including one based on a new (or continued) marriage to a U.S. citizen or permanent resident.
This is known as the "Marriage Fraud Bar," which is outlined in the Immigration and Nationality Act at I.N.A. § 204(c). The law says that if you have entered into a fraudulent marriage in the past for purposes of getting a green card, you will be barred from receiving future immigration benefits (such as a green card).
This article focuses on applicants with a past marriage fraud finding against them, who are now either filing Forms I-130 and I-485 adjustment of status applications for a green card here in the U.S. or Form I-130 immigrant visa applications for a green card from abroad, based on marriage to a U.S. citizen or permanent resident spouse. This situation can affect both applicants who are still married to the same person and those who have entered into a new marriage with someone else.
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 fraudulent marriage.
To understand what a fraudulent marriage is, you first need to understand the legal definition of "fraud." Immigration 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, a person who 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 he or she was in a legitimate marriage for the purpose of obtaining an immigration benefit.
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, immigration agencies are forced to look back at the prior marriage that was found to be a fraud.
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, or because the marriage simply failed (for reasons not involving fraud), such reasons will not bar you outright from applying for future immigration benefits (though some could still negatively affect your future applications.).
The best way to learn whether or not 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 terms such as "sham marriage," "fraudulent marriage," or marriage "entered into for the sole purpose of circumscribing immigration law" are in the denial decision, then the immigration agency has made a conclusive finding of fraud.
To counter a fraud finding, you will need to demonstrate that the 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 there is a past finding of fraud in your record, you might still want to offer evidence that your past marriage was not fraudulent. 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 denial decision on the past marriage-based application 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.
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 immigration attorney. Experienced immigration attorneys have in-depth knowledge of immigration law and court decisions relating to findings of marriage fraud and can prepare a strong case to combat a previous finding of fraud.
There are some important pieces of evidence you will want to gather, and issues to address, in order to demonstrate that a past marriage was not fraudulent. These include:
The above list is not exhaustive. USCIS handles each situation of alleged marriage fraud on an individual basis.