Federal Marriage Fraud Defense: Sham Marriage Investigations.

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Section 3: What makes a marriage a “sham” for federal purposes?

The federal statute which addresses marriage fraud is 8 U.S.C. § 1325(c). Section 1325(c) provides that 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 five years, fined not more than $250,000, or both. While this is clearly a restrictive statute, it does allow for genuine marriages that include the prospect of immigration benefit as one of their motivating considerations. However, in order to qualify for federal marriage fraud charges, the Department of Justice (DOJ) must be able to prove that the defendant knowingly entered into the marriage for the purpose of evading a provision of the immigration laws. When pursuing these charges, the Department of Justice and the U.S. Citizenship and Immigration Services (USCIS) will seek to understand whether the parties intended to enter into a shared life together, and this intent is assessed as of the time the parties entered into the marriage, using evidence of the parties’ conduct both before and after the marriage.

The Question of Intent: Why Did You Get Married?

A commonly examined question in a sham-marriage inquiry is, “Why did you get married?” To address this question, federal prosecutors and federal immigration officials will look at the prior relationship between the parties, how long the relationship lasted, whether the parties lived together and shared expenses, whether they had intimate relations, and whether they had children. At the same time, the government will look at circumstances that indicate a fraud, such as the nature of any relationship between the parties, their length of known prior relationship, their separate living arrangements, and the nature of their relationship when a divorce petition is filed in the state courts. They will look for evidence of financial gain, such as payment to a single person to enter into a marriage with a foreign national, and for evidence of lack of genuine shared life.

Subsequent Divorce as Evidence

A subsequent divorce does not necessarily show the lack of intent at the time the parties entered into the marriage. Even if the parties’ marriage did not last, that does not mean it was a sham marriage under Section 1325(c) or that it was an unlawful marriage for purposes of immigration fraud. Often, federal authorities will attempt to use a later divorce or separation against the couple. However, this is an attempt to show the lack of permanence, not the lack of intent to build a life together and raise a family.

How Do Criminal Charges and USCIS Findings Use Different Proof Rules?

Although USCIS and federal prosecutors both investigate marriage fraud, the two are very different. USCIS is an administrative agency and its authority is far-reaching. Prosecutors, by contrast, must meet the high burdens inherent in criminal law. For this reason, a couple facing a sham marriage inquiry may find themselves subject to different types of allegations in the course of a single investigation. This requires custom-tailoring your defense, because the proof rule that applies to an allegation is as critical as the allegation itself.

1. Criminal Prosecution of Marriage Fraud

In criminal court, the DOJ must meet the highest burden of proof in the legal system. That is, criminal prosecutors must prove the existence of the sham marriage, and the intent to enter a sham marriage, beyond a reasonable doubt. Unless federal investigators can make out the case to meet this standard, a criminal prosecution for marriage fraud is unlikely to proceed to the point of a grand jury indictment.

2. USCIS Determinations of Marriage Fraud

USCIS’s procedures for evaluating allegations of marriage fraud vary depending on the circumstances involved. The rules are slightly different than the rules for criminal prosecution. In the pre-admission stage, USCIS requires substantial and probative evidence to support a finding of fraud. This means that USCIS must have something more than mere inference that will stand up upon close examination. The more factual evidence USCIS has, the more it is allowed to use inferences to fill in the gaps, but not vice versa. In the application stage, the burden shifts. While USCIS relies on substantial and probative evidence to make decisions regarding applications, it places the burden of proof on the applicant to establish that the marriage is bona fide. In the administrative review stage, after the denial or revocation of an immigration benefit, the standard shifts yet again. For a marriage-fraud bar to approval under 8 C.F.R. § 204.2(a)(1)(ii), USCIS applies a substantial-and-probative-evidence standard. This is the standard that some of our competitors frequently describe to their clients. However, this standard is completely different from the standard that applies during criminal proceedings, as removal proceedings are administrative in nature and do not carry the risk of incarceration. In federal criminal prosecution, as noted above, the highest burden of proof applies. Federal criminal proceedings are distinct from removal proceedings, and they present a very different case, with different potential penalties.

Todd Spodek is the managing partner of Spodek Law Group, a second generation criminal defense firm that has been practicing since 1976.

Which Records and Interview Answers Can Test Intent at Marriage?

In one of the many ways that USCIS and federal prosecutors test for marriage fraud is through separate interviews. The USCIS will conduct separate interviews with both spouses. The answers from each spouse will then be compared in hopes that material inconsistencies are found. During these interviews, the USCIS will ask questions about the parties’ relationship, with the USCIS and DOJ testing for the presence of corroboration. These questions may cover a variety of topics including: Finances (e.g., joint bank accounts, shared expenses, and contributions), Holidays (e.g., the nature of your prior relationship, recent celebrations), Courtship and Wedding (e.g., how you met, the timeline of your relationship, the nature of your wedding celebration, and who attended), Household Routines (e.g., chores, sleeping arrangements, and other domestic expectations)

The USCIS will ask about the history of the relationship, whether you are currently happy in the marriage, and why you got married. You will also be asked about living arrangements and what you like about each other. If the responses of the spouses are not consistent, it may prompt additional scrutiny, but inconsistent answers alone are not necessarily indicative of fraud.

In addition to the interviews, federal investigators can look into other types of information as well. The intent of the spouses at the time of marriage can be tested by reviewing their separate and joint residences, their tax records, and their bank accounts. Similarly, investigators will review records reflecting joint and separate ownership of assets, and they may interview the spouses’ relatives, friends, employers, or other known relationship witnesses. In some cases, federal investigators will even conduct home visits during marriage-fraud investigations.

With the amount of information available to federal prosecutors and federal immigration officials, these investigators will be able to form a comprehensive picture of the parties’ relationship. If they suspect that the marriage is a sham, they will use the available information to support their conclusions. If you have been contacted by the DOJ or USCIS in relation to allegations of marriage fraud, it is extremely important to ensure that you have a good understanding of what is at stake, and that you engage with the government effectively.

What Can a Sham-Marriage Allegation Do to Later Immigration and Civil Options?

Under 8 U.S.C. Section 1325(c), federal criminal prosecution for marriage fraud carries the possibility of five years in federal prison, and individuals convicted of these criminal charges may also face a fine of not more than $250,000. If an individual or couple enter into a sham marriage in order to facilitate immigration status under Section 1325(c), and the government is able to prove this in criminal court, this couple will face criminal sanctions in addition to the immigration consequences that will follow for the non-U.S. Citizen in the relationship.

For aliens, allegations of marriage fraud can also present substantial hurdles for later immigration options. Under INA §204(c)(2) (8 U.S.C. § 1154(c)(2)), no later immigrant visa petition may be approved if the Attorney General has determined that the alien attempted or conspired to enter into a marriage for the purpose of evading the immigration laws. In fact, under Section 204(c)(2), if a fraud finding is entered in relation to any prior attempt or conspiracy involving marriage fraud, the petition will be denied. In addition to visa petitions, INA §237(a)(1)(G) identifies marriage fraud as a removal ground as well. This means that in addition to losing the status sought through a sham marriage, aliens who have entered into sham marriages in order to seek visa status can be removed from the United States.

USCIS may investigate an immigration benefit even after its approval. If USCIS approves a petition that is later found to involve marriage fraud, USCIS may revoke the approval of the petition or refer the matter for removal proceedings. USCIS will rely on substantial and probative evidence that indicates that the marriage is a sham at this stage. This means that while the government may need to reach a higher standard for criminal charges, an administrative finding of a sham marriage may be sufficient for revocation or removal.

The consequences of facing an allegation of marriage fraud are diverse and present complex legal issues. In most cases, individuals and couples whose marriages have been identified as a sham by federal authorities will be able to avoid criminal prosecution, but their options will be limited with respect to future immigration status. The key to mitigating the consequences of a marriage-fraud allegation is to proactively engage with federal authorities and work toward a favorable resolution.

Calling About Someone You Love

Most first calls to a defense firm come from a family member rather than the person under investigation. If that is you, Spodek Law Group answers its phone at any hour, and families retain the firm on a relative's behalf every week. Reach it at 888 348 8028.