Marriage to a U.S. citizen makes one an immediate relative for immigration purposes. Numerical visa limits will not apply and the alien spouse can adjust status immediately. On the other hand, marriage to a lawful permanent resident allows the alien to be a beneficiary of a second family preference petition, which has the shortest waiting times among all family-based visa categories.
The immigration benefit may be one of the reasons why some people marry. However, it may not be the only or the primary reason for the marriage.
The parties must have intended, at the time of the marriage, to establish a life together as husband and wife. If the spouses marry for the purpose of circumventing immigration laws, the USCIS will find the marriage fraudulent and deny the immigrant petition filed for the alien spouse.
Some of the red flags or indicators of a “sham marriage” are the following: short time between entry and marriage, unusual marriage history, large age discrepancy, unusual cultural differences, and low employment or financial status of the petitioner spouse.
When one or some of these factors are present, the spouses should gather documentation to prove the good faith of the marriage and be ready to address them at the interview.
The spouses must prepare evidence of their shared life. These include joint tax returns, joint bank account statements, lease agreements, joint mortgage statements, life insurance beneficiary designation, mail showing same residential address, cell phone bills, and photographs. There are no rules as to how much evidence would be sufficient, so in case the USCIS officer is not satisfied with the evidence given or would much rather hear from the spouses themselves, the couple must be prepared to be questioned thoroughly.
In all cases, but more so where a marriage has red flags, the couple must anticipate a hard interview. The USCIS officer can ask a wide variety of questions ranging from how the couple first met and who was present at their wedding, to the color of the bedroom wall and what the other spouse’s favorite meal is. At times, they may even be called back for a second interview, particularly when the USCIS detects fraud in the marriage.
In one case that our firm handled, the client and her spouse could not provide joint tax returns and other primary evidence to show a good faith marriage. The USCIS officer, probably suspecting that the marriage was fraudulent, scheduled them for a second interview. The alien spouse through our firm eventually obtained her green card.
At the interview, the couple must remember to always tell the truth and answer the questions without guessing or unnecessarily giving too many details. At the same time, they must know when not to answer a question. For example, they should not respond if they do not know or remember the answer at all, or if the officer’s question assumes or misstates a fact.
The couple must also try to be calm and focused throughout the interview, which could take an hour or even more. Needless to state, adequate preparation by the spouses is valuable. A lawyer can help the spouses prepare for the interview in addition to representing them at the interview itself.
One of our former clients was the beneficiary of a petition by her U.S. citizen spouse, who was over 20 years her senior. At her visa interview, she gave a few inconsistent answers which led the consul to deny her immigrant visa application, perhaps considering also the large age difference between the spouses. She was not assisted by an attorney at the time. She later retained our firm and we helped her appeal the visa denial. We were able to establish the “bona fides” of their marriage and she eventually got her green card.
There are criminal and civil consequences if a marriage is found to be fraudulent. Aside from liability for false testimony and perjury, a person who knowingly enters into a marriage for the purpose of evading immigration law may face imprisonment of up to 5 years and/or a maximum fine of $250,000.
Any subsequent petition filed on the alien’s behalf is also barred from being approved if the USCIS finds that a marriage was entered into to evade immigration laws. This includes petitions filed by employers, future spouses, and other relatives. No waiver is available if there has been a finding of marriage fraud.
Even a previously-granted conditional residency may be terminated if the USCIS later determines that the marriage was fraudulent, and in that case the alien may be placed in removal proceedings.