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Immigration Consequences of Marriage Fraud

Author: New York Immigration lawyer Alena Shautsova

Immigration marriage fraud may take various forms: from exchanging moneys for marriage to conspiracy to broker individuals for marriage. Please see: What Is Marriage Fraud and How Does the USCIS Operate to Prevent It?. Finding of the marriage fraud has drastic immigration consequences but also may lead to criminal liability.

How does one become suspected of marriage fraud and how does a finding of marriage fraud come around? After a US citizen weds a non-citizen, in order for the non-citizen to obtain permanent resident status in the US, the couple files immigration petitions and applications, and has to appear for an interview. It is at the interview when an officer suspects marriage fraud. Usually it happens when a couple gives inconsistent answers or lacks knowledge of basic events and information that two people in real relationship should be aware of; or, sometimes, one of the participants admits to paying money for the marriage or marrying a friend to “help getting him/her the papers.” Sometimes, ICE officers get tips and start investigating couples even prior to the interview. In any event, without the admission, the government has to proof the allegation of marriage fraud: it either has to get credible and reliable testimony from someone other than the suspect; or has to make sure the suspects admits his/her fault.

The finding of marriage fraud has drastic immigration consequences: it prevents an individual from being a beneficiary of any other family petition (form I-130) or employment petition (I-140). It is true even if the subsequent marriages that the individual would enter into would be 100% real; even if the individual regrets engaging into marriage fraud; and even if the individual serves criminal sentence. The marriage fraud finding does not prevent the individual from obtaining status other ways: let’s say through asylum. It also has no effect on subsequent relative petitions by the same spouse with whom the non-citizen was married at the time of the fraud finding.

What are the possible solutions for those who were found to be engaged in immigration marriage fraud? First of all, it has to be confirmed that there was a reliable finding of marriage fraud. A mere suspicion by an Immigration officer is not sufficient to cause subsequent immigration bars. Even an admission “I entered into a fake marriage” in certain situations does not serve as reliable evidence of immigration fraud: see BIA Matter of Sot, 3/13/14. If there is an unequivocal finding of marriage fraud, then the non-citizen needs to if he/she may qualify for a waiver. INA section 237(a)(1)(H) provides that a waiver may be available to those who is the spouse, parent, son, or daughter of a citizen of the U.S. or of an alien lawfully admitted to the U.S. for permanent residence. INA Section 237(a)(1)(H)(i)(I). However, the alien must also have been in possession of an immigrant visa or equivalent document and have been otherwise admissible at the time of such admission, except for the grounds of inadmissibility specified under INA Section 212(a)(5)(A) (not in possession of a labor certification) and (7)(A) (not in possession of a valid immigrant visa or other required documents or whose visa has was not issued in compliance with section 203 of the Act), which were a direct result of that fraud or misrepresentation. INA Section 237(a)(1)(H)(i)(II). The main caveat of this waiver is that it is only available to those individuals who obtained permanent resident status. If a finding of immigration marriage fraud was made during the process of adjustment of status, the waiver, likely will not be available as a number of courts held that adjustment of status is not an admission.

The BIA has held that the waiver is not available if the fraud or misrepresentation occurred subsequent to the admission. See, e.g., Salas-Velasquez v. INS, 34 F.3d 705, 708 (8th Cir. 1994) (former § 241(f) waiver unavailable where applicant entered U.S. on a valid visitor visa and subsequently entered into a fraudulent marriage with a U.S. citizen); Matter of Connelly, 19 I&N Dec. 156 (BIA 1984) (addressing the former § 241(f) waiver). The one and remaining option for those non-citizens who never gained an LPR status, might be a cancellation of removal, if they otherwise qualify for it. The cancellation, however, can be obtained only in removal proceedings and only if an Immigration judge, after finding the individual statutory eligible for the relief, exercises favorable discretion.

04 June 2014
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