Sham Marriages Cannot be Source of Benefits
By Reuben Seguritan
Sham marriages are marriages that are entered into for the purpose of evading the immigration laws. It does not matter if the alleged couple applied for and/or were granted the visa petition. These sham marriages even if they were validly contracted are considered to be fraudulent and cannot be the source of immigration benefits.
The USCIS will not approve any petition for a person who previously obtained, or attempted or conspired to obtain, immigration benefits by reason of a marriage which was entered into for the purpose of evading the immigration laws. The evidence that the USCIS must find must be substantial in order to conclude and rule that the marriage was a sham and therefore, no immigration benefits will be granted to the petitioner and beneficiary.
A basic test to determine whether the marriage is a sham is to look at the couple’s shared intention of establishing a life together for the rest of their lives. The USCIS will investigate any marriage which may appear to be fraudulent. The USCIS will carefully look at the conduct of the couple after the marriage and the documents that were submitted with the I-130 Petition for Alien Relative form by the US citizen or lawful permanent resident (LPR) and his foreigner spouse. During the interview, the answers of the couple will be noted for inconsistencies, contradictions with the form and documents submitted and other things which may raise a red flag to the USCIS officer that the marriage is a sham.
The USCIS may also check the social media accounts of the petitioner and applicant to see whether their submitted form, documents and photographs, match what they are presenting online. Evidence from social media accounts can reveal fraud and whether the petitioner and applicant are in a legitimate relationship. Social media accounts can disclose personal communications, establish motives and personal relationships, pin-point the location of the parties on specific times and days, prove or disprove alibis, and establish a criminal enterprise if there is any.
Examples of red flags are: extreme nervousness during the interview, large discrepancies in age; the number of children or large gaps in age between children; cultural differences; associations between family members; documents were issued immediately before or after the interview; proactive or explicit or staged photographs; suspect tax filing or financial transactions; multiple applications or petitions by the same applicant or petitioner; suspicious filing history of the beneficiary or applicant; common preparer who is known or suspected of or under investigation by the Fraud Direction and National Security Directorate (FDNS); and tip letter or phone call that the marriage is a sham.
If the couple fails the interview or if they are currently in removal proceedings, they will be given the following: 1. A written notice detailing the petitioner’s rights; 2. A list of rights mailed as a separate attachment to the appointment letter for the next interview, and 3. A list of requested documents to be submitted at the next interview appointment. For the second interview or interview while in removal proceedings, the USCIS officer will record the interview as a procedural safeguard but officers are not allowed to ask about the couple’s sexual practices or contraceptive use.
If the I-130 petition was approved, but later there is substantial evidence to show that the marriage was a sham, the approved I-130 will be revoked. In both cases the USCIS may not approve any subsequent petitions filed by the couple. If the US citizen or LPR did not file an I-130 petition for his spouse, but the USCIS found evidence that the marriage was a sham, the foreigner spouse will not be allowed to enter the US and any subsequent petitions filed will be denied. This is the procedure that will be followed even if the US citizen or LPR or the foreign spouse has not been convicted of, or prosecuted for marriage fraud or attempted or was in a conspiracy to commit marriage fraud.
Although the USCIS is directed to deny a second petition filed by the same petitioner for the same beneficiary on the ground of a fraudulent marriage, there is a case decided by the Board of Immigration Appeals in 1993, which states that the second I-130 petition can be approved if the couple proves that the marriage is bona fide and not to only obtain an immigration benefit.