Only people in valid, bona fide marriages are eligible to seek spousal visas to immigrate to the United States.
A marriage is considered valid if it was legal where it took place, unless it violates U.S. public policy (for example, polygamous marriages or marriages between family members).
A marriage is considered bona fide if it was entered into in "good faith" and not just for immigration purposes. While people enter into marriage for many complex reasons, the basic requirement for a good faith marriage is that the parties intend to share a life together as spouses. The intent of the parties entering into the marriage is key to determining whether the marriage is bona fide, even if the marriage later breaks up. If a marriage is not bona fide it is often referred to as a "sham" or "fake" marriage.
Here, we'll discuss:
There are two main types of sham marriages: one-sided and two-sided.
In a one-sided sham marriage, only one person has bad faith intent in entering the union. In these cases, the noncitizen does not tell the U.S. citizen that their true motivation for entering the marriage is to secure a green card.
In a two-sided sham marriage, both parties agree to enter into a fake marriage to get around U.S. immigration laws or to secure an immigration benefit. In many of these cases, the U.S. citizen is either paid to enter into the marriage or marries the noncitizen out of friendship or as a favor.
There are certain "red flags" that will cause the U.S. government to believe a marriage is fake including:
While these will raise red flags, no factor is determinative of a sham marriage. A red flag can be overcome if there is a valid explanation or there are other factors that indicate that the marriage is bona fide.
EXAMPLE: Let's say a Catholic man who married a woman and had six children gets divorced, moves to the United States, and marries a U.S. citizen man, who is not a Catholic. U.S. immigration authorities might wonder at this dramatic change, and question whether the marriage is the real thing or just an arrangement to get the foreign-born man a green card. Nevertheless, U.S. immigration authorities realize that some people are bisexual, or perhaps change sexual orientations during their lifetime, or try to fit themselves into a role that society expects of them by getting married despite their sexual orientation, and so on. But in this and all cases that raise red flags, the applicant would need to be up front in describing what happened to U.S. immigration authorities, and then supply evidence to support their explanation.
Perhaps, to continue with this example, the applicant could obtain a written statement from a therapist, marriage counselor, or lawyer consulted during the divorce, if part of the reason for it was sexual orientation and they knew that. (If the immigrant was on good terms with his ex-wife, she might even supply an affidavit on his behalf!) It will also be important to supply the same types of basic evidence that every other married couple does: wedding pictures, copies of letters, emails, or phone bills evidencing correspondence, hotel bills from a honeymoon or other trips taken together, evidence of joint bank accounts, credit cards, and other financial holdings, and so forth.
Factors that signal a typical good faith, bona fide marriage, based upon which the U.S. government is more likely to approve a visa or green card, include:
Again, these are things that one can document to U.S. immigration authorities.
If the U.S. government determines that a marriage is a sham, the spousal visa or green card will be denied and the noncitizen will face removal (deportation) from the United States. There are strong criminal penalties for marriage fraud in the United States, as well.
An individual who knowingly enters into a sham marriage for immigration purposes can face up to five years in prison and be fined up to $250,000. An individual may also be charged with additional criminal charges related to marriage fraud.
If interested in applying for marriage-based lawful permanent U.S. residence, you could make your life easier by hiring an experienced immigration attorney. The attorney can analyze the facts of your case and spot any potential issues, including concerning your marriage appearing to be valid and bona fide, as well as prepare the paperwork, monitor the progress toward approval, and attend in-person interviews with you, in some cases.