Marriage Green Card Fraud: Avoiding Common Pitfalls.

The fact that someone is motivated to obtain a certain federal benefit is not necessarily an indicator that he or she has committed any wrongdoing. For example, when it comes to immigrants who enter a marriage for the purpose of obtaining legal residence in the United States, the immigration motivation can be a contributing factor in a variety of situations. For the most part, immigration motivation does not imply a “sham marriage.” Instead, it only triggers concerns when it is the couple’s primary purpose for getting married.

A sham marriage exists when the couple in question marries primarily to secure a federal benefit and does not intend to establish a shared life together. Even though marriage entered into solely for the purpose of evading the immigration laws is a clear case of marriage fraud, the distinction between a bona fide marriage and a fraudulent marriage can be quite difficult to determine. In some cases, the immigration benefit is the primary, but not the only, reason why a couple decides to marry. These mixed motivations can make it more challenging to determine if the marriage is fraud or not, so U.S. Citizenship and Immigration Services (USCIS) may refer cases presenting fraud indicators to its Fraud Detection and National Security Directorate (FDNS).

The Immigration and Nationality Act (INA) governs federal benefits that can be obtained through marriage. The INA also sets out the requirements that are necessary to obtain these benefits, and it is a highly complex statute. Notably, however, the INA contains no specific provision that defines “marriage fraud.” Instead, the federal government relies on various other provisions of the INA and other federal laws to pursue charges of marriage fraud. This makes it more difficult to ascertain what acts are considered marriage fraud and when they will trigger federal investigations, leading to inconsistencies and misunderstandings when married couples apply for residency under the INA. This also makes it more challenging to ascertain which married couples are eligible for residence and, in turn, more difficult to know if USCIS is justified in seeking criminal penalties.

Which Filing and Shared-Life Facts Can Strengthen, or Undermine, a Marriage Case?

The primary goal of the USCIS is to determine whether a proposed immigration benefit, granted on the basis of a couple’s marriage, should be approved based on the fact that the couple is married in good faith. If this leads them to believe that the couple has a “sham marriage,” the federal government may deny the benefits and can even prosecute for a crime. USCIS can assess whether a marriage is bona fide by considering a variety of evidence, including:

• Incomplete or incorrect information in the marriage-related immigration filings.
• Insufficient supporting evidence accompanying the application.
• Various mistakes that the couple make during the interview with an immigration official.
• The apparent intent to defraud the United States.

All of these indicators can lead to allegations of marriage fraud, and they all have the potential to trigger an expansive and intrusive federal investigation. On the other hand, couples who married in good faith can defend their marriage by demonstrating:

• Evidence of courtship before the marriage. Examples include photos of the couple together before their wedding, airline tickets, and records of their correspondence.
• Evidence that the spouses married in good faith. This can include wedding invitations, party photos, videography, and guest lists.
• Evidence that the spouses built a shared life together in the United States. This can include evidence of shared residence (lease agreement, property deed, and utility bills in both names), shared financial responsibilities (joint bank accounts, insurance policies, and taxes filed jointly), and evidence of raising children together.
• Support for the couple’s shared future together in the United States. This includes evidence showing a genuine desire to build a shared life, which may be confirmed through family member testimony or photos.

When deciding whether to charge a couple with marriage fraud, the federal government relies on a variety of evidence, some of which may be admissible in court, subject to the applicable rules of evidence. This includes not only the couple’s documentation and testimony, but also information provided by third parties, such as friends and family. In some cases, the government may rely on a confession made to an undercover agent or investigator during the course of the investigation. All of this information can be used to determine the veracity of the immigration filings and whether a couple’s intent was fraud or to genuinely build a shared life together in the United States.

“I am a straight shooter,” Todd Spodek says of his own practice. “I tell clients exactly where their case stands.”

What Proof Must Support a Marriage-Fraud Finding, and What Does a Breakup Prove?

The federal government needs evidence before alleging that a marriage was entered into for immigration purposes. Simply suspecting a sham marriage will not justify starting an investigation or seeking criminal charges. USCIS officials will first review the couple’s application and supporting documentation. If they find inconsistencies or other evidence of a potential sham marriage, then USCIS may refer the case to FDNS or another appropriate investigative authority.

When alleging a sham marriage, what evidence does the government need? According to a National Law Review summary of immigration policy research, there must be “substantial and probative evidence” to support a finding of a sham marriage. This means that just having a “mere inference” will not suffice to support an allegation. For an immigration-benefit determination under INA § 204(c), USCIS must meet the substantial-and-probative-evidence standard.

What does the evidence need to support to rebut allegations of marriage fraud? After the government meets the standard that requires probative and substantial evidence, “[T]he couple must have married out of a ‘bona fide desire to establish a life together’ and must not have entered the marriage to ‘evade immigration laws.’” So, the couple will then have the burden of presenting evidence that, when weighed against the government’s evidence, makes a bona fide marriage a more likely alternative.

This evidence can include photos of the couple, financial records, real estate records, or testimony from family, friends, and acquaintances who are aware of the relationship between the husband and wife.

Then what happens after the couple provides this evidence? As noted by the National Law Review, “The degree of proof necessary to constitute “substantial and probative evidence” is more than a preponderance of evidence, but less than clear and convincing evidence; that is, the evidence has to be more than probably true that the marriage is fraudulent.” The couple must establish by a preponderance of the evidence that the marriage was bona fide and that they qualify for the immigration benefits they are seeking.

When Can a Green-Card Holder Face Removal, and Who Handles the Immigration or Criminal Case?

If a person is found guilty of having fraudulent marriage intent or is found to have entered into a sham marriage, can he or she be removed from the United States? Yes. According to the National Law Review, once a “In determining if the evidence of marriage fraud is substantial and probative, that is, whether it establishes that it is more than probably true that the marriage is fraudulent, the nature, quality, quantity, and credibility of the evidence in the record should be considered in its totality.” removal is one of the consequences that will follow.

Can a person be investigated for marriage fraud after receiving their green card? The research says yes. When immigration officials, such as USCIS, review subsequent filings from the green-card holder (e.g., evidence for naturalization), this information may reveal evidence of a potential sham marriage. In such cases, they may then initiate an investigation to determine the validity of the earlier immigration filing.

Who handles a green-card case that involves a sham marriage? If it is just an immigration matter, then it will be handled by USCIS. But if it involves the potential for criminal charges, then a federal prosecutor from the DOJ will get involved. The DOJ may pursue criminal charges under 8 U.S.C. § 1325(c) against individuals who knowingly enter into marriages to evade the immigration laws.

Is the determination that a marriage is a sham automatic? No, it will only result in a finding of a sham marriage if USCIS conducts a “proper inquiry.” The research says USCIS will “not be entitled to rely upon the finding” without first making a proper inquiry.

Is there any automatic pardon or forgiveness for committing marriage fraud? The National Law Review research does not identify any automatic pardons or forgiveness for marriage fraud. This reinforces the need for the protection of an experienced attorney.

Frequently Asked Questions about Marriage Green Card Fraud

Marriage green card fraud is one of several types of federal fraud. It is a complex crime with potential criminal and non-criminal penalties. Here are some of the frequently asked questions we have received about this issue.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.