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.
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 citizen that his or her 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 as a favor.
There are certain “red flags” that will cause the U.S. government to believe a marriage is fake including: no shared language, large age differences, vast differences in religious, educational or social backgrounds, not living together after being married, family and friends not knowing about the marriage, a history of past spousal immigrant petitions, and other factors.
While these factors will raise red flags, no factor is determinative of a sham marriage and can be overcome if there is a valid explanation or there are other factors that indicate that the marriage is bona fide.
Factors that signal a good faith, bona fide marriage include:cohabiting after marriage, having children together, commingling finances, buying property together, going on vacations together, celebrating holidays, anniversaries and birthdays together, having common interests, and having a relationship with each other’s friends and families.
If the government determines that a marriage is a sham, the spousal visa will be denied and the noncitizen will face removal (deportation) from the United States. There are strong criminal penalties for marriage fraud in the U.S. 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.