Immigration Marriage Fraud Laws and Penalties

One of the primary goals of the U.S. immigration laws is to reunite families, including married couples. However, the fact that it's relatively easy to obtain a green card (U.S. lawful permanent residence) based on marriage has led to fraud. Couples regularly enter into fake or sham marriages, for money or other benefits, in order to obtain a U.S. green card for the immigrant.

To combat immigration marriage fraud, Congress has enacted extensive legislation giving U.S. immigration authorities the power to investigate and discover fake marriages (with immigration consequences for the intending immigrant) and creating criminal penalties for people who commit marriage fraud, including both the immigrants and their U.S. sponsors.

What Is Immigration Marriage Fraud?

U.S. immigration law (namely the Immigration and Nationality Act, or I.N.A.) does not actually define what "marriage fraud" is. In fact, it doesn't even define the terms "marriage," "spouse," "husband," or "wife."

However, the law does state that USCIS will deny an immigration petition if the alien has in the past, or is currently attempting or conspiring to, "enter into a marriage for the purpose of evading the immigration laws." (I.N.A. Section 204(c).) In other words, if the purpose of the marriage is to get the immigrant a green card, it's a fraudulent, fake marriage. And fraud is a crime.

Is a Marriage That Falls Apart Fraudulent?

So long as the couple intended a real marriage when they entered into it, then the fact that it might later fail does not make it fake or fraudulent. The couple's original intention matters. Nevertheless, the later failure of a marriage might cause U.S. immigration authorities to raise questions, so you'll want to be ready with extra documentation of the bona fides of the marriage in case of further investigation.

Why Do People Commit Marriage Fraud?

U.S. immigration law offers limited avenues to people wishing to obtain a green card. Many whose job skills are not in sufficiently high demand, or whose family relationships are not sufficiently close, find the door closed upon them.

Meanwhile, the spouses of U.S. citizens and lawful permanent residents (green card holders) are favored under U.S. immigration laws. Spouses of U.S. citizens are considered "immediate relatives," and eligible for an immigrant visa or green card just as soon as they can get through the application process. Spouses of lawful permanent residents, while they face an annual limit on the number of allotted visas and sometimes a resulting wait, at least wait less time than other family relations (and throughout 2022 and into 2023, no wait at all other than for the application process).

This naturally leads some would-be immigrants to keep an eye on the possibility of marriage to a U.S. citizen. (As a side note, there is nothing illegal about a U.S. citizen or permanent resident marrying an undocumented immigrant; that is, someone in the U.S. illegally, who lacks immigration papers.) If unable to find someone they truly want to marry, they might try marrying a friend or paying a stranger to help them immigrate. Such cases are considered marriage fraud.

U.S. immigration authorities accordingly place marriage fraud high on their list of enforcement priorities. U.S. Citizenship and Immigration Services (USCIS) does not keep actual statistics on marriage fraud, but has stated, at various times over the years, that between one-third and one-fifth of the marriage-based applications that it receives are based on fraud.

How Does USCIS or Other Immigration Authorities Discover Marriage Fraud?

At various points in the immigration process, USCIS will require applicants to prove that the marriage is "bona fide," or was entered into in "good faith." Courts have interpreted that to mean that the marriage was entered into with the idea of establishing a life together. (Bark v. INS, 511 F.2d 1200, 1201 (9th Cir. 1975).)

Most commonly, the couple must show this through basic documentation requested during the various application processes. For example, they'll want to provide copies of joint property deeds or leases, birth certificates of children born to the couple, copies of messages and letters sent to each other, wedding photos, and so on.

Also, no matter where and by what application procedure the couple seeks the green card, one or both of them will need to attend an in-person interview with U.S. immigration authorities. There, the officials will ask detailed questions about the marriage; and if suspicious, separate the couple, ask them the same set of questions, and then compare the answers. (Again, this is true whether, for example, whether the couple applies to "adjust status" in the United States or goes through "consular processing" overseas to apply for permanent residence.)

But that's not all the binational couple might face by way of an investigation, as described below.

U.S. Immigration Authorities Have Broad Investigative Powers

Although most marriage-based immigration cases are decided based on documentary evidence, U.S. authorities can, and have been known to, visit the couple's home, talk to their friends, check with their employers, and so on.

They would be most likely to do that if they spot "red flags" (signs of concern), such as a couple who:

• hasn't told their family or friends they're married
• seemingly has no plan to live in the same place
• does not share a common language
• does not share a common religion
• come from different races
• has a vast age difference between them, or
• is extremely different in other ways, such as education level, social class, and so on.

In the worst case, the U.S. government (most likely Immigration and Customs Enforcement, or ICE) might have already been watching a certain U.S. citizen who has attempted marriage fraud before, or monitoring the actions of a broker or intermediary who is known to arrange fake marriages. After a period of monitoring, they might decide that now is the time to sweep in and make arrests.

Extra Scrutiny for Newer Marriages

U.S. immigration laws require USCIS to pay particular attention to marriages that were less than two years old at the time that either the green card was approved (if the application was made in the U.S.) or the immigrant enters the U.S. with an immigrant visa (if coming from overseas). After applying for a green card, such immigrants will be granted one that is only conditional; that is, valid for two years. (See I.N.A Section 216.)

Within the 90 days leading up to the end of those two years, the couple must submit a new application to USCIS on Form I-751 and attach new documents proving that their marriage is ongoing and still the real thing.

Waivers are available for cases of divorce (which, by itself, is not seen as an indication that the marriage was a sham). In such a case, the foreign national could file Form I-751 solo, along with documentation showing that the marriage was bona fide when entered into, but later ended, just as real marriages not infrequently do.

But if the couple is simply no longer living together or the U.S. spouse is unwilling to sign onto this joint petition, there is a good possibility that USCIS will deny the petition and refuse to grant the immigrant a permanent green card. If the evidence warrants it, USCIS may also initiate an investigation for marriage fraud.

Even if the couple makes it through the I-751 part of the process, however, the marriage could be scrutinized again if and when the immigrant later applies for U.S. citizenship. Particularly if the couple has divorced, USCIS may ask for further proof that the marriage was bona fide.

Civil and Criminal Penalties for Marriage Fraud

A finding of marriage fraud can have both civil and criminal consequences for the immigrant, and criminal consequences for the U.S. citizen or permanent resident petitioner.

What Could Happen to an Intending Immigrant Who Commits Marriage Fraud

An immigrant found to have committed marriage fraud could be removed from the United States (deported). If they still hold a nonimmigrant (temporary) visa, such as a B-2 visitor visa or F-1 student visa, this would be revoked. In addition, the fraud would remain on the person's immigration record, making it virtually impossible to obtain any future U.S. visa or green card.

Criminal Penalties for Both the Immigrant and the U.S. Sponsor Who Commit Marriage Fraud

With regard to criminal penalties, U.S. law says:

Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than five years, or fined not more than $250,000, or both.

(I.N.A. Section 275(c).)

In other words, both the immigrant and the U.S. citizen or lawful permanent resident petitioner face possible jail time and having to pay large amounts of money.

Punishment can also be meted out under Title 18 of the U.S. Code, at Section 1546. This section prohibits, among other things, making false statements under oath. Sentencing under this section starts at ten years imprisonment for a first or second offense.

Judges have some latitude in how harsh a sentence they hand down to a guilty person. In this situation, the most severe penalties are usually applied to people who engage in conspiracy operations, such as systematically arranging fraudulent marriages. But that doesn't mean that a U.S. citizen or resident who enters into a fraudulent marriage on their own will not also be punished, possibly along with the immigrant.

A petitioning U.S. spouse who is only a U.S. permanent resident (a green card holder), not a citizen, might also be placed into removal proceedings and ultimately deported based on the finding of marriage fraud.

Talk to a Lawyer

If you're being investigated for criminal marriage fraud, definitely talk to a criminal defense lawyer about your options. This is an area where gathering persuasive factual evidence will be critical, and the stakes are high for both the immigrant and the U.S. petitioner.