Marriage Fraud Charges
In the United States, immigrants can obtain legal permanent residency by marrying a U.S citizen. While this is perfectly legal so long as both parties entered into marriage “in good faith”, it is a crime to marry a U.S citizen just for the purpose of obtaining legal permanent residency.
This crime is known as marriage fraud, and is a federal crime defined under federal statute 18 U.S.C. § 1325(c) as when an individual enters a marriage for the purpose of evading any provision of the immigration laws. A person who commits marriage fraud shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.
Proving that your marriage was “in good faith” is not always straight-forward, especially for people who enter into non-traditional marriages. If you’re facing these charges, don’t hesitate to contact our immigration defense lawyers to defend the legitimacy of your marriage and residency in the United States.
Obtaining Permanent Residency Status through Marriage to a U.S Citizen
Immigration and Nationality Act (INA)
The Immigration and Nationality Act (INA) governs the immigration laws of the United States. According to the INA, foreign-born nationals are not permitted to reside permanently in the United States unless they become lawful permanent residents. The INA allows a foreign-born national to become a lawful permanent resident of the United States upon marriage to a United States Citizen. The foreign-born national and the United States Citizen must enter the marriage in “good faith”. The United States Citizen cannot enter the marriage in exchange for money or other benefits. The foreign-born national also cannot enter the marriage for the purpose of obtaining legal permanent residency in the United States.
United States Citzenship and Immigration Services (USCIS)
The United States Citizenship and Immigration Services (USCIS), an agency of the United States Department of Homeland Security, is responsible for processing applications for immigration benefits such as lawful permanent residency. When a foreign-born national applies for permanent residency based on marriage to a United States Citizen, the foreign-born national must submit to USCIS an Application to Register Permanent Residence or Adjust Status (Form I-485). On this form, the individual seeking permanent residence must certify, under penalty of perjury, that the information provided, including information about the individual’s citizen spouse, is correct. The citizen spouse is also required to submit a Petition for Alien Relative (Form I-130) to USCIS certifying that he or she is a citizen and to provide general background information about the marriage (i.e., location of the marital home). The citizen spouse must also certify on this form that the marriage was not entered into for purposes of evading immigration laws. The parties must also submit other supporting documentation, such as the marriage certificate and a Biographic Information form (Form G-325) with the application.
Once USCIS receives the application, the forms and supporting documentation are reviewed to determine whether the foreign-born national’s petition for permanent residency will be granted. USCIS will conduct interviews with the foreign-born national and the citizen-spouse to determine the validity of the marriage. If the application is approved, USCIS will award the foreign-born national conditional lawful permanent residency status for two years. Before the two years has elapsed, the parties can file a Petition to Remove Conditions on Residence (Form I-751) with USCIS to remove the conditional status of the foreign-born national. The parties will again have to prove the marriage is legitimate and USCIS may require another marital interview. If the Form I-751 is approved, the conditions of residency will be removed and the foreign-born national will become an unconditional lawful permanent resident.
Marriage Fraud Involving Soldiers
One of the more common marriage fraud scenarios involves marriage between foreign-born nationals and United States citizen soldiers. USCIS and the Department of Defense (DOD) expedite soldiers’ requests for foreign-born spousal permanent residency status. Soldiers also receive a monthly Basic Allowance for Housing (BAH) stipend which provides soldiers financial assistance to live off base. The BAH is calculated based on location of the residence. Married soldiers also receive additional pay for deployments (such as Family Separation Pay). Soldiers who marry, regardless of whether they marry a citizen or foreign-born national, must enroll their spouse in the Defense Enrollment Eligibility Reporting System (DEERS). This allows the spouse to be issued DOD Identification Cards which can be used to obtain health care and other benefits.
Common Roles in Marriage Fraud Conspiracies
The foreign-born national. This is the individual who wants to illegally immigrate to the United States or stay in the United States by fraudulent adjustment of his/her immigration status. This individual must find a citizen willing to marry him/her. The foreign-born national may attempt to find a citizen on his or her own accord, or through the assistance of a facilitator.
The facilitator. The facilitator provides assistance in the country of origin, transit countries, and in the United States. The facilitator may assist with entry into the United States as well as introducing the parties to be married. The facilitator may help the couple obtain a marriage license, organize the marriage ceremony and celebration
The support. This is the United States Citizen recruited to act as a sham spouse for the foreign-born national. The sham spouse is often paid for following through with each of the steps described in detail above.
Marriage Fraud Defense
If you are facing federal charges for marriage fraud, it is important to formulate a proper defense with a legal team knowledgeable in marriage fraud cases. A conviction for marriage fraud can not only lead to a term of imprisonment, it can also prompt removal or deportation proceedings. It can also prevent you from being able to re-enter the country in the future. We often work with clients who have nontraditional marriages. Sometimes our clients live in different locations than their spouses because or school, work, military deployment, or other reasons. The attorneys at Tarlton Polk PLLC will work with you and your spouse to demonstrate that your marriage is genuine. If you have been charged with marriage fraud and you are a foreign-born national, you must fight the allegations to protect your residency status in the United States.