A finding of marriage fraud is not a trivial issue to have on any immigration record. However, a previous denial of a permanent residence application or Immigration’s finding of marriage fraud is not always insurmountable if the matter is dealt with aggressively. I have decided to write an article on this daunting issue because recently I have received an influx of calls concerning this matter. This month I will provide a brief overview of marriage fraud and some pointers on how to deal with the issue.
To begin we need to know what is considered to be marriage fraud. The Immigration Marriage Fraud Amendments Act of 1986 defined marriage fraud as an “individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws. It is important to note that the penalties for entering into a sham marriage are very steep. A U.S. citizen and non-citizen could be imprisoned for up to 5 years and fined $250,000 for engaging in a sham marriage. The typical fact pattern in marriage fraud cases is that a U.S. citizen and a non-citizen get married and the couple fulfills all the legal requirements for a legal marriage. However, the couple never intended to live as husband and wife. In some cases the U.S. citizen is paid to marry the non-citizen in order to entitle the non-citizen to obtain status as a permanent resident of the United States. In some instances the U.S. citizen was not paid but there was an agreement between the parties that the marriage was created solely to obtain immigration benefits.
In my practice I have seen cases where couples were married solely for immigration benefits. I have also met individuals who were genuinely married but they had failed to document their file and/or they were not prepared for their interview. In these situations it is entirely possible that their case was denied based on marriage fraud when in fact the couple was just nervous and ill-prepared. In the event that an individual has received a denial on their spousal permanent residence petition there are a number of things that should be done immediately.
The first thing to do is to make a note of the appeal date in the event you wish to file an appeal or a motion to reopen. After a denial most individuals tend to shelf their case. This is a grave mistake because as times goes by it becomes more difficult defend the case. If your permanent residence petition was denied it is always a good choice to try to appeal the denial.
Second, you should consult with an experienced attorney to determine the issues for an appeal or your motion to reopen. An appeal or motion to reopen has substantive and procedural issues. In addition, when filing an appeal or a motion to reopen there are no second chances. To that end, it would be wise to hire an experienced legal professional who is well-equipped to deal with the substantive and procedural issues as it relates to your appeal or motion to reopen.
Third, the most important task is to document everything that has happened in your case. If the appeal or motion to reopen is not successful then the petitioner may need to pursue an I-601 waiver.
Disclaimer: This article is a broad overview of a frequently asked question associated with acquiring permanent residence. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:
Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Estate Planning. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email. or visit her firm’s website.