My new friend Glen Smith posted to our divorce lawyers mailing list this quick and thoroughly readable description of the procedures involved in proving immigration status by marriage. It’s the clearest statement I’ve seen yet, and Glen has agreed to let me share it with you. It’s in response to a question about a woman who now believes her husband married her solely to make himself eligible for a green card.
Marriage fraud is a violation of the federal Immigration Fraud Act. USCIS [formerly INS] looks upon all green cards through marriage to be fraudulent and you have to prove to them that the marriage was not entered into to gain an immigration benefit. First step is adjudication where all the application forms are gone over with a fine tooth comb and more proofs are demanded of the “bona fides” of the marriage. These proofs include proofs of financial unity etc. Also one thing your client must consider is the Affidavit of Support she filed in which she contracted to support him for up to 10 years. The second step is a face-to-face interview where all the details are gone over again. If the marriage looks absolutely positive — a West European marrying a white U.S. citizen — this interview may be just pro forma. If the immigrant is from a suspect country such as India or any part of Africa the interview can be brutal.
If husband got his green card that means he made it through this first stage. He was given a green card on a conditional basis for two years. The condition is that two years hence they have to go through the whole procedure all over again and show additional proofs that it was and is a genuine marriage. If your client has not filed an I-751 two years after the green card was issued she can refuse to cooperate and he will not have the condition “removed.” The next step then is deportation.
Marriage fraud is generally grounds for an annulment or a divorce. But in every case I have seen it is the defrauded person who is filing. If your client is now claiming that she was defrauded into marrying her just for the purpose of getting the green card she should have no trouble. As she was the defrauded person she would not then be guilty of marriage fraud and thus would not be subject to any action by BCIS.
Speaking practically the government doesn’t do anything against the spouse — even if she were a willing participant. They don’t have enough money to go after illegal aliens and they have even less to prosecute those aiding and abetting it.
By the way, if an alien genuinely marries a U.S. citizen and there is a subsequent divorce this does not prevent him from going the I-751 process on his own and being able to stay here. After all, why should alien/citizen marriages be any longer lasting than citizen/citizen marriages?
Glen is a member of the AILA, the American Immigration Lawyers Association. He doesn’t have a web site, but you can e-mail him if you’d like. Thanks, Glen!