Entering into sham marriage for the purpose of circumventing immigration law carries with it severe penalties. What happens in the case where the U.S. Citizenship and Immigration Services’ (USCIS) finding of marriage fraud is based on erroneous facts? Is there a way to challenge the fraud?
In 1995, Tony entered the United State on a visitor visa and while on a business meeting he was introduced to Estela, a U.S. citizen. After two months in the United States and before the expiration of Tony’s visa, he was offered by Estela to marry her ‘for convenience’ so Tony could obtain his green card. In his desire to obtain a permanent resident status, Tony married Estela, who then filed a petition for him.
While the visa petition was still pending with the USCIS, Estela started to have romantic feelings towards Tony and wanted to make the relationship real. Hence, they cohabited as husband and wife for a few months prior to their interview. During the interview, the immigration officer had doubts about the relationship of the couple. The petition was eventually denied because, after investigation by USCIS, Tony was found to have engaged in marriage fraud and was also having an affair with his co-worker while married to Estela. Estela was heartbroken after learning of Tony’s infidelity and to get back at him she withdrew the petition and filed for divorce. In addition, Estela submitted an affidavit to the USCIS that her marriage to Tony was only a marriage for convenience.
Tony voluntarily departed the United States in 2010. After 5 years in the Philippines, he got married again to another U.S. citizen. This time it is a real good faith marriage. Will the petition filed on behalf of Tony by the new spouse be approved?
Penalty For Fraud
Aside from a possible criminal prosecution, if there is a finding of marriage fraud in visa petitions, Section 204(c) of the Immigration and Nationality Act prohibits the approval of future petitions for the individual who entered into sham marriages. So even if the subsequent marriage to a U.S. citizen is a good faith marriage, the law clearly bars the individual applicant from receiving any future U.S. visa.
The USCIS must have on the immigration record of the individual “substantial and probative” evidence of the marriage fraud. The record must contain sworn statements and supporting documentation that directly leads to the finding of fraud.
Challenging the Marriage Fraud Finding
Considering its severe consequence, an individual with a marriage fraud finding may contest it through a subsequent visa petition as long as there are additional evidence of the bona fides of the alleged fraudulent marriage. In the case of Tony, he may submit another affidavit by the initial petitioner that the statement previously submitted was given out of spite because of their hurtful break-up.
Challenging a previous finding of marriage fraud is not easy as the applicant has the burden of proof to show the error of the previous finding. Considering the harsh consequences of a finding of marriage fraud, it is best to avoid entering into such sham marriages in the first place.
(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or (02)721-1963)
