Marriage Fraud Under Immigration Law

            Under the Immigration and Nationalities Act (INA) section 204 – procedures for granting immigrant status – there is a small, one paragraph subsection that acts as a kill switch to many foreigners seeking green cards: 204(c). Section 204(c) states “Notwithstanding the provisions of subsection (b) no petition shall be approved if:

     (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws, or

     (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

          And that’s it. Section 204(c) is as straightforward as it reads: if the Attorney General (or USCIS or an immigration judge) determines you married a US citizen or lawful permanent resident just to get a green card, then you will be barred from obtaining a sponsorship-based green card (through family or employment). There are a few things to consider: first, the Attorney General just needs to determine, and not officially find in a decision, that marriage fraud occurred. Second, adjudicators may go back through a beneficiary spouse’s history (and prior marriages) to make this determination if there is substantial and probative findings of fraud (See also recent BIA decision, Matter of Pak, 28 I&N Dec. 113 (BIA 2020)). Lastly, there are criminal and civil penalties associated with marriage fraud (5 years incarceration and/or up to a $250,000.00 fine!)

          So, how does the Attorney General suspect or find marriage fraud? The Attorney General, through USCIS or an immigration judge, will carefully review submitted documents, such as a residential leases and mortgages (are both spouses’ names on the documents); financial bank records (do the spouses actively use a joint account and not just let the account remain dormant); pictures (do they include other family members, events, timelines, etc. and not just a few pictures with just the couple); insurance documents (actual paid for declaration page and not just a quote). The adjudicator will also separate the couple and question them separately. If, under the “substantial and probative finding, and not just ‘probably true’ standard” (see Matter of P. Singh, 27 I&N Dec. 598 (BIA 2019) there are great discrepancies, then an adjudicator may suspect marriage fraud. Lastly, ICE and fraud detection agents may physically go to the couples’ house and inspect it for residency and other determinations. In the event all of the above fails to overturn a finding of marriage fraud, appeals to the Board of Immigration Appeals (BIA) and federal court may be the only option left.

          A marriage fraud based 204(c) finding is a stain on your immigration file, with dire consequences. Even if a petition is denied, that is not the end: criminal, civil and removable (i.e. you can be deported and/or refused entry to the U.S. again!) consequences follow. But remember, just because marriage fraud cases are infrequently prosecuted, doesn’t mean it won’t happen to you! Even foreign born celebrities have been prosecuted.

         If you or a loved one have been accused of marriage fraud, it is important to act fast! Call our firm today (484-430-4810) to schedule a consultation!