Many believe that the fastest way to obtain a green card is through marriage to a US citizen. While it may indeed be the “fastest” way to become an immigrant, it is not necessarily the “easiest” route. There are serious legal consequences that result from a finding of marriage fraud.
George entered the US as a nonimmigrant L1 intra-company employee of a multinational company. When the company decided to end its US operation, George found himself in unlawful status. He did not depart the US but worked “under the table”. With his earnings, he continued to have support money sent to his spouse and minor children in the Philippines.
His relationship with his first wife ended when he discovered that an annulment case has been filed against him. His ex-wife decided to live with her lover and left their minor children. The children are now in the custody of George’s parents. George continued to provide financial support to his minor children.
In a school reunion that was held in Los Angeles CA, George met Jennifer who was his sweetheart back in high school. Jennifer was still married at the time they met. George claimed that his feelings for his high school sweetheart were rekindled and courted her again. After some time, Jennifer divorced her husband and married George. Jennifer, who is a US citizen, then filed a petition for George who eventually got his green card. Jennifer also petitioned for one of George’s children to come to the US. George and Jennifer appeared to be a happy couple until George finally obtained his US citizenship.
As soon as George got his US citizenship, he disappeared and never returned to their home. Jennifer did not have an idea what caused George’s sudden disappearance. George sent an email to Jennifer telling her that he is no longer in love with her and that he decided to go back to the Philippines. Jennifer was shocked with the turn of events and in retrospect realized that he was merely used by George to get his immigration status. Jennifer sought legal advice and was told that it may be difficult and too late to revoke the immigration status of George.
Jennifer presents a very sympathetic case. But what actually transpired in this case that George was able to get away with his seemingly malevolent and opportunist motivations? What standards are used to determine true love from deceitful relationships entered into for purposes of obtaining the green card?
Motivation for the Marriage
A marriage that did not last for a long time does not mean that the marriage is a fraud. There are many factors that immigration officers take into account in deciding validity of these marriages. The standard is based on the intention of the parties at the time of marriage. The subjective intent or desire to marry must be clearly expressed through statements during the interview coupled with objective evidence of joint documents.
The Immigration and Nationality Act and its regulations contain provisions that assist in determining whether the marriage is fraudulent or a sham. A marriage is considered fraudulent when one or both parties enter into the marriage primarily for the purpose of obtaining resident status for the foreign spouse. This means that this immigration benefit should not be the primary motivation for entering into the marriage. The immigration officer will determine whether at the time of marriage, the parties intended to establish a life together.
The parties must be able to show that the purpose of marrying is to live a life together as a couple. Despite expressing this intention, the immigration examiner may be quick to deny a petition if the parties are unable to overcome certain doubts that may arise in their relationship. Most of the time, red flags are raised in nontraditional marriages. USCIS Adjudicators Field Manual enumerates instances of possible marriage sham if the following exist: (1) separate cohabitation; (2) disparity in age; (3) marriage between relatives; (4) no common language; (5) multiple prior marriages and (6) marriages arranged by third parties. When some of these circumstances arise, more substantiating evidence of the validity of the marriage is required.
There is no hard and fast rule in determining what and how much evidence is necessary to prove a valid marriage. Each case has its own circumstance and proving one’s true “love” as a basis for the marriage should come naturally if the marriage is real.
Citizen Accomplice
The penalties for marriage fraud are severe. For the alien spouse, Section 204(c) of the INA bars the approval of any subsequent petition filed on behalf of the immigrant. This bar applies even if subsequent petitions are already valid and real marriages. The US citizen accomplice who knowingly enters into fraud is equally liable under Section 1325(c) of 8 United States Code for imprisonment of 5 years or fine of not more than $250,000.
Opportunist Spouse
When a green card marriage is short lived, it is not unusual to come to the quick conclusion that it was probably a marriage of convenience for the opportunist spouse. In the case of Jennifer above, it is her suspicion and her side of the story that we have heard. We should, however, not be so quick to jump to a conclusion as there are always 2 sides to a separated couple’s story. Jennifer and George cohabited as a couple for 4 years. They both went through the immigration process and were found to have met the standards. If there is indeed proof that would categorically point to fraud, then there are ways of re-opening a case. But certainly not if based merely on an allegation from an abandoned spouse who would naturally be bitter from a failed relationship.
(Tancinco may be reached at law@tancinco.com or @ 1800 999 9096)
