Back in October a soldier was found guilty of marriage fraud and sentenced to 10 months in jail. His thought was that he would receive more money from the military and his fake wife would get her “green card” and no one would get hurt. (See the Associated Press article here.) This article understands that marriage fraud harms the U.S. taxpayer, makes the immigration process harder for other people who are honestly married and is a clear violation of the law. What I hope to do is to explain to the individuals who are thinking of this either to help a nice person or to make a quick buck, that the consequences are to steep to even consider marriage fraud as an option.
The size of the Fraud Detection and National Security (FDNS) Unit of the Department of Homeland Security, has significantly increased. FDNS was created in 2004 to enhance the quality, integrity, and security of the U.S. legal immigration system. The primary mission of the FDNS is to detect, deter, and combat immigration benefit fraud. FDNS collects information from many different sources, including USCIS databases, other federal law enforcement systems, commercial data providers, state and local government databases, and public source information, such as newspapers and Facebook.
What are the Criminal Consequences of Marriage Fraud?
Under §1325(c) of 8 United States Code (USC), “Marriage Fraud,” is committed when “Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.” Other related crimes are found at 18 USC §1546(a), which, among other provisions, makes it a crime to give a false statement under oath in any document required by the immigration laws or regulations. Section 1546(a) punishes anyone who knowingly subscribes as true any false statement with respect to a material fact in any documentation required by immigration laws. As a result, sham marriage participants violate §1546(a) by claiming they are engaged in a bona fide marital union when in fact their marriage was meant only to obtain an immigration benefit for the foreign “spouse”. In that situation, the couple’s assertion that their marriage is bona fide is a material fact that is knowingly misrepresented to the government. Finally, under some circumstances, sham marriage participants convicted for false representation under §1546(a) may also be convicted under other related statutes. False representation may also constitute perjury under 18 USC §1621 and may be enough for a conviction of making false statements to government officers under §1001.
What are the Civil Consequences of Marriage Fraud?
If USCIS determines that the marriage was entered into to evade immigration laws, INA §204(c) bars the approval of any subsequent petitions filed on the immigrant’s behalf. That includes visa petitions by employers, future spouses, and other relatives. There is no waiver available if there is a finding of INA §204(c) marriage fraud.
Additionally, even if the USCIS had previously granted residency status based on marriage, but subsequently determines that the marriage was entered into solely to obtain an immigration benefit, USCIS will terminate the foreign national’s residency and place the individual in removal proceedings.
Red Flags According to the Adjudicator’s Field Manual
The USCIS Adjudicator’s Field Manual lists ten red flags that the officer should look for:
- Large disparity of age;
- Inability of petitioner and beneficiary to speak each other’s language;
- Vast difference in cultural and ethnic backgrounds;
- Family and/or friends unaware of the marriage;
- Marriage arranged by a third party;
- Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;
- Discrepancies in answers to questions of which a husband and wife should have common knowledge;
- No cohabitation since marriage;
- Beneficiary is a friend of the family; and
- Petitioner has filed previous petitions on behalf of aliens, especially prior foreign spouses.
When an I-130 petition is denied because of concerns about marriage fraud, the decision to appeal or re-file can be difficult. Decide, however, after having a frank discussion with your attorney about the advantages and disadvantages of both. Ultimately, the U.S. citizen or Lawful Permanent Resident, as the petitioner, must decide because they “own” the petition, the beneficiary lacks the power to appeal the denial of a visa petition.
Immigration is a very specialized area of law; be sure your attorney focuses his or her practice on immigration and helping people like you. We focus our practice on immigration law and helping people visit, live in, go to school, and work in the United States. We especially love bringing families together and helping foreign nationals start a new life, even become U.S. citizens. You can reach us at 513-791-1673 or Thomasjr@geygan.com. Your next step is to contact us.