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Friday, June 09, 2017

Marriage & Fraud in Immigration Law

Written by  Linda A. Dominguez

Usually, the philosophy of the law in the U.S. is that a person is innocent until proven guilty of any violation of the law. When it comes to marriage to an undocumented person already in the U.S., however, the Citizenship and Immigration Services (“CIS”) has a presumption of fraud until the parties to the marriage have proven that their marriage is not solely for the purpose of obtaining lawful permanent residence – the “green card.” There is a heightened perception that natives of Nigeria and Ghana are more likely than not to engage in marriage fraud and those marriages are examined under a microscope for any indications that the marriage is not bona fide. The reason for such perception can be found by looking at the number of marriage fraud rings that are currently serving time in a federal jail for arranging marriages between citizens of the U.S. and Nigerians or Ghanaians. The citizens are paid to go through the process, not understanding that they could face criminal charges and serve time in prison themselves if the fraud is discovered.

So what do you do if you fall in love with someone who is not a citizen of the U.S.? You collect documents and pictures of your life together, both before and after the wedding. Any love letters or cards exchanged between you should be kept. If trips are taken, keep hotel receipts, plane ticket stubs, meal receipts, etc. Keep anything that shows that you are a couple who fell in love and have built a life together.

When can you file a petition for your spouse based on the marriage? Under the law, you could do so immediately after the wedding reception, if you have the signed marriage certificate in hand. While the Form I-130 looks fairly simple to fill out, I urge you to retain the services of an experienced immigration attorney. More than once, I have had to hand tissues to a weeping couple who could not understand why the visa petition was denied and an appeal of that denial was now necessary. It was not because they were stupid or did not understand the English language sufficiently. It was because they failed to consider the presumption of fraud with which a CIS examiner approaches all marriage cases.

For example, a surgeon at Johns Hopkins Hospital decided that there was no reason why he could not complete the process of getting a Green Card for his Greek wife without using an attorney. The result was his wife presenting herself before an immigration judge to fight removal from the U.S. The surgeon did not realize that minimizing the amount of documentation of the marriage caused the CIS examiner to believe that it was not bona fide, even though it was valid as far as the State of Maryland was concerned. The birth of their son and letters from family, friends, and co-workers of both the surgeon and his wife, among other documents, convinced the CIS examiner to approve the visa petition and the immigration judge to grant her a Green Card.

It’s a two-step process to get a Green Card based on marriage. The first step is filing the Form I-130, Petition for Alien Relative, by the citizen spouse (or person who already has a Green Card). The second step is filing the Form I-485, Application for Adjustment of Status, by the undocumented spouse. The filing fees for these forms have risen recently and are currently $420 and $1,225, respectively. For a citizen spouse, the two steps are usually combined into one package and filed together, unless there is a reason why the undocumented spouse cannot prove eligibility for a Green Card. The CIS will review the package, including any documents to support the bona fide nature of the marriage, and, if nothing critical is missing, an interview is scheduled. At the interview, a CIS examiner will question both spouses together. If there is a reason to doubt the marriage is real, a second interview is scheduled. At the second interview, the spouses are questioned separately and a summary of each interview is signed by the interviewer and the person interviewed. A Notice of Intent to Deny is sent and must be answered within the timeframe specified or a denial of both the visa petition and the application for adjustment will be entered. The spouses have 30 days from the date of the denials to file an appeal.

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