Fraudulent Marriage

What it means for a marriage to be fraudulent in the immigration context can be at the time the parties were married:

  • they did not intend to establish a life together, the marriage is considered a sham.
  • The conduct and lifestyle of the parties before and after marriage are relevant to determining their intent at the time of marriage.
  • The conduct of the parties after marriage is relevant, however, only to the extent it bears on the subjective intent of the parties at the time they were married.

The fact that a marriage at some point becomes nonviable or non-subsisting does not in itself indicate that the marriage was a sham at its inception. Yong Hong Guan v. I.N.S., 998 F.2d 1017 (7th Cir. 1993)

Form I-130 allows U.S. citizens and lawful permanent residents to petition the U.S. Citizenship and Immigration Services (USCIS) to recognize that a legitimate immediate family relationship exists between the petitioner and an eligible alien relative (the beneficiary). According to the Immigration and Nationality Act (the “Act”), an immigration officer “shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative approve the petition.”. (8 U.S.C. § 1154(b)). Once this relationship is established, the beneficiary may become eligible for a green card, which requires submitting a Form I-485 application to adjust status.

There are several reasons why USCIS may deny or revoke its approval of a Form I-130 petition. For one, USCIS may determine that the family relationship between the petitioner and beneficiary is not one of the limited categories of family relationships eligible for green card sponsorship. (Generally speaking, one can only sponsor an immediate family member.) Or, USCIS may gather evidence and determine that the claimed familial relationship, though of an eligible type, is not authentic. For example, USCIS may determine that, although a petitioner and beneficiary are technically married on paper, their purpose for having entered the marriage was not to establish a life together but rather to obtain immigration benefits. This is known as a “sham marriage,” or marriage fraud.

Under section 204(c) of the Act, any attempt at marriage fraud permanently disqualifies an individual from benefiting from I-130 sponsorship in the future. The INA states that “no petition shall be approved” if an alien has received or tried to receive immigration benefits through a sham marriage. 8 U.S.C. § 1154(c); Ogbolumani v. Napolitano, 557 F.3d 729, 733 (7th Cir. 2009). In other words, marriage fraud creates a permanent bar to the approval of any future immigrant visa petitions.

During USCIS’s petition review process, “[t]he initial burden is on the government to identify substantial and probative evidence of marriage fraud. ‘The evidence of such attempt or conspiracy must be documented in the alien’s file and must be substantial and probative.’” Valdivia v. Barr, 420 F.Supp.3d 809, 811 (N.D. Ill. 2019) (Tawfik, 20 I. & N. Dec. 166, 167 (B.I.A. 1990). “Only if that is established does the burden shift to the couple to refute that finding.” This burden-shifting framework typically takes place through a series of notices of the agency’s intent to deny or revoke a petition, and response letters and supplemental documentation from the petitioner and/or beneficiary. If USCIS ultimately arrives at a finding that a beneficiary had entered into a sham marriage at any point in the past, it will deny the latest I-130 petition, regardless of whether the family relationship between the petitioner and beneficiary on the latest petition is authentic.

If you are in good faith married to your U.S. citizen spouse or a lawful U.S. permanent resident and want to sponsor your spouse, contact us to speak to our experienced Vancouver Immigration lawyer at YA Law Corporation. We are located in Vancouver Downtown, BC.

YA Law Corporation

504-938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.620.9598 | Fax: 604.620.9597
Email: info@yalaw.ca