By Attorneys Robert L. Reeves & Ben Loveman
A finding by the United States Citizenship and Immigration Services (USCIS) of marriage fraud leaves a serious and lasting negative mark on the alien’s record. If the USCIS determines that a person entered (or even conspired to enter) into a marriage for the sole purpose of obtaining an immigration benefit, all future petitions (whether family or employment based) filed for that person will be denied. This is true unless the marriage fraud finding can be overturned or, in some limited cases, a waiver can be granted by an immigration Judge.
Overturning a marriage fraud finding is extremely difficult but it can be accomplished. The harsh penalty for marriage fraud is codified at section 204(c) of the Immigration and Nationality Act. The law concerning marriage fraud provides that the bar to future benefits should only be applicable where the sole or primary reason a person entered into a marriage was for an immigration benefit. Unfortunately, in many cases the USCIS will make a finding of marriage fraud where the law, facts and evidence do not support a fraud determination.
People enter into marriage for many different reasons. In many cultures arranged marriages or marriages for reasons other than love (such as long-term security or financial reasons) are the cultural norm. In many cultures it is not uncommon for persons of widely different ages to enter into a marriage. It is not against the immigration laws for immigration benefits to play some role in a couple’s decision to marry. However, where persons fail to properly document or explain the nature of their relationship, the USCIS may come reach an erroneous conclusion that the marriage was entered into solely for immigration purposes.
Just because the USCIS has made a marriage fraud determination does not mean that it will be impossible to have a petition approved in the future. First, if a new petition is filed based on the same marriage which USCIS had concluded was fraudulent, the penalty for marriage fraud will not apply. Second, if a new petition is filed based on a new marriage or on some other family or employment relationship, the petition can be approved if sufficient evidence and/or explanation is provided to show the USCIS that the marriage fraud determination was erroneous or that it was contrary to law.
Raising an effective challenge to a previous marriage fraud determination requires extensive and careful preparation of documentation and evidence to show that the marriage fraud determination was erroneous. Challenging a marriage fraud determination can also be accomplished through effective legal argument establishing that the marriage fraud determination was based on legally inconclusive or insufficient evidence. In some cases where the USCIS refuses to overturn an erroneous marriage fraud determination, it will be possible to sue in Federal Court to have the marriage fraud determination overturned so that the person will no longer be subject to the penalty for marriage fraud.
Overcoming a marriage fraud determination is never easy. But just because a marriage fraud finding has been made does not mean you should give up. If you or a loved one has been accused or found to have entered into a marriage for immigration purposes, your best option is to consult with an experienced reputable immigration attorney who can advise you as to the best method of challenging the finding so that a new petition can be approved.