Valentine’s Day is about romance and love—and a lot of marriage proposals are made on that day. But sometimes there’s fraud lurking among the roses and chocolates. Marriage fraud under immigration law is a big issue for Immigration and Customs Enforcement (ICE), and, sadly, sometimes there’s love on one side of the relationship and fraud on the other.
For an foreign national to obtain any immigration benefits based on marriage, the marriage has to be bona fide (in good faith) and not fraudulent. Marriage fraud under immigration law is found when a party knowingly enters into a marriage for the purpose of evading an immigration law or solely for an immigration benefit. INA §204(c); 8 USC §1154(c).
Here’s the key question: Did the parties intend to establish a life together at the time they were married? If not, the marriage is a sham. Bark v INS (9th Cir 1975) 511 F2d 1200. This is true even if one of the parties did intend to establish a shared life but, unbeknownst to him or her, the other party did not. ICE lists this type of marriage fraud as: “A foreign national defrauds a U.S. citizen who believes the marriage is legitimate.”
Marriage fraud may be discovered in many ways. The United States Citizenship and Immigration Services (USCIS) may instigate an investigation triggered by the applicant’s filings, statements made in the applicant’s file, tips, or an application for naturalization or other immigration benefits.
If USCIS finds marriage fraud, the marriage is invalid for immigration purposes regardless of whether the marriage is valid under the domestic law of the jurisdiction where it was performed. Matter of M (BIA 1958) 8 I&N Dec 217. And if a person’s immigration status, such as permanent residency, was obtained based on a fraudulent marriage, the benefit will be revoked. INA §246; 8 USC §1256. The foreign national may then face removal from the U.S. and may be permanently barred from future immigration benefits in the U.S. INA §204(c); 8 USC §1154(c); 8 CFR §204.2(a)(1)(ii). The fraud is not cured by the dissolution of a fraudulent marriage.
And on top of those consequences, marriage fraud is a federal crime. A conviction for marriage fraud carries up to five years of imprisonment and fines of up to $250,000. And if the marriage was fraudulent on both sides, a U.S. citizen or lawful permanent resident spouse—not just the foreign national—may face consequences for perpetrating marriage fraud.
Immigration issues arise in family law cases in various ways. Keep up with it all in CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 26.
Other CEBblog™ posts you may find interesting:
- Family Law Attorneys: Be Ready for Immigration Issues
- Love and Marriage…and Prenups
- Using Postnups to Renegotiate a Marriage
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