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.
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