Bona Fide Marriage and Consequences of Marriage Fraud

Getting married to a U.S citizen is one-way Immigrants can get a legal permanent resident status in the U.S. Many people are getting into Sham marriages as a way to get permanent U.S residency. More than 2 million marriage frauds have been reported in the U.S between 1998 and 2007.

a. Marriage Fraud Under Immigration Law

For a person to get any immigration benefits on the grounds of marriage, the marriage must be bona fide(in good faith) and not fraudulent. Marriage fraud under immigration law is when a person knowingly enters into marriage with the intention of evading immigration laws or solely for immigration benefits.

In Immigration law, the inquiry is to establish whether the two parties intended to establish a life together when they got married. If they didn’t intend to establish a life together, then the marriage is a sham marriage.

Marriage fraud can be discovered in several ways. The USCIS may instigate an investigation triggered by the applicant filings, statements contained in the application file, tips, or an application for naturalization or other immigration benefits.

Non-traditional and bad marriages are not necessarily a sham. Also, a marriage cannot be considered fraudulent just because one wants to get permanent residency in the U.S provided the marriage was entered in good faith. Getting some benefits, in addition to love, cannot be considered fraudulent. A marriage is only sham if the intent of the marriage was not to establish a life together.

In determining marriage fraud, there is no specific formula for the type and amount of evidence required. Some adjudication officers use documentation, while most others prefer questioning. Some of the red flags of marriage fraud in the eyes of an immigration officer are massive age difference, friends and family not aware of the marriage, discrepancies in answers between spouses to questions the spouses should have shared knowledge, a marriage entered immediately an immigrant is notified to leave the country, no cohabitation during the marriage among others.

b. Consequences of Marriage Fraud

When marriage fraud is established, the marriage becomes invalid for immigration purposes, even if the marriage is still valid under the domestic law of the jurisdiction where it was performed. If the immigrant obtained permanent residency status based on marriage fraud, the immigration status would be revoked, and he or she will be removed from the U.S. The person will also be barred from future United States immigration benefits. The marriage fraud cannot be cured by the dissolution of the fraudulent marriage.

Marriage fraud is a federal crime. A person engaged in a fraudulent marriage can be convicted for up to 5 years in prison and fines of up to $250, 000. The U.S citizen spouse may also face the consequences of perpetrating marriage fraud.

c. Bona Fide Marriage ended in Divorce and Effects of Divorce on the Green Card

Before removal of conditions

In most cases, if a divorce is not finalized, family law practitioners bifurcate the issues in dissolution proceedings to finalize the divorce. This is because many family court proceedings take a long time, and this will help avoid negative consequences in the immigration case.

If the marriage is dissolved before the conditional resident is able to remove the conditions, the only way to remove the conditions and become a permanent resident is to show that the marriage was bona fide. In case the divorce is final in terms of marital status, the conditional resident can file a petition to have the conditions removed by requesting the joint requirement to be waived because of the divorce.

However, the divorce must be final for the waiver of the joint filing requirement to be granted.

If the dissolution has been filed but not final, the waiver will not be granted, and the petition will be treated as a joint petition. A joint petition can be denied if only one spouse has signed the petition. If only one spouse signs the petition, and the divorce has not been finalized, the USCIS allows 87 days to have the final judgment submitted. If the judgment is produced within that time, the petition will be converted into a waiver petition. If it cannot be presented, then the petition will be denied, and the conditional resident will be removed from the country.

Sometimes spouses can file a joint petition to remove conditions, but their relationship falls apart, and they file for dissolution. In such a case, they may proceed with the joint petition if they are cooperative. If they are not, they can request a waiver petition. This is especially important when there is a scheduled interview where both parties must appear.

· Waiver of Joint Filing Requirement

A conditional resident can request for a waiver of joint filing requirement on the grounds that the marriage was entered in good faith but;

The Spouse died
A divorce or annulment terminated it
The conditional Spouse was subjected to cruelty, or

One can also request for a waiver on the grounds that removal from the country would lead to extreme hardship.

Continuing from the detailed overview of marriage fraud, bona fide marriages, and the consequences of marriage fraud under U.S. immigration law, let’s delve deeper into the waiver of joint filing requirements and the concept of “extreme hardship,” which can also play a crucial role in the removal of conditions on residence.

Waiver of Joint Filing Requirement: Extreme Hardship

When a conditional resident seeks a waiver of the joint filing requirement based on extreme hardship, they must demonstrate that deportation would result in exceptional and extremely unusual hardship. This could involve considerations related to the individual’s personal, financial, physical, or psychological well-being. Importantly, the hardship must be significantly greater than the usual hardship one might expect when being removed from the U.S.

Evidence that may support an extreme hardship claim includes, but is not limited to:

Health: Ongoing or specialized treatment requirements for a condition that cannot be treated in the individual’s home country.
Financial Considerations: Specific economic impact that deportation would have on the individual’s financial stability.
Education: If deportation would interrupt a course of study that is not available in the individual’s home country, or significantly set back the individual’s educational goals.
Personal Considerations: Close relatives in the U.S., especially if those relatives are U.S. citizens or lawful permanent residents, and the impact deportation would have on these family ties.
Special Factors: Any fear of persecution, significant conditions in the home country that may affect the individual adversely, or other considerations that might exacerbate the hardship faced upon removal.

Proving Bona Fide Marriage After Divorce

For those conditional residents facing divorce, proving that the marriage was entered into in good faith becomes paramount to removing the conditions on their residence status. Documentation and evidence play critical roles in this process. Individuals may need to provide:

Joint financial records (bank accounts, loans, credit cards)
Birth certificates of children born to the marriage
Photos, correspondence, and other evidence of a shared life
Affidavits from friends and family members attesting to the genuineness of the relationship

This evidence helps to establish the bona fide nature of the marriage, separate from the immigration benefits that were subsequently applied for or received.

Legal and Emotional Support

Navigating the complexities of immigration law, especially around issues of marriage fraud and bona fide marriages, is challenging. Legal guidance from an attorney specializing in immigration law is invaluable. Such professionals can provide strategic advice, assist with document preparation, and represent individuals in proceedings with USCIS.

Moreover, the emotional toll of dealing with marriage fraud accusations or proving the bona fide nature of a marriage under scrutiny should not be underestimated. Support from community organizations, counseling, and support groups for immigrants can provide emotional and practical assistance during this challenging time.

Conclusion

The issues of marriage fraud and bona fide marriages under U.S. immigration law are complex and fraught with significant legal and personal consequences. Understanding these complexities, complying with legal requirements, and seeking appropriate legal and emotional support are crucial steps for those navigating this challenging landscape. Ultimately, the integrity of the immigration system depends on the balance between enforcement against fraud and the fair treatment of those genuinely seeking to live and thrive in the U.S. through marriage.

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