GPSOLO January/February 2010
Fraudulent Marriages in Immigration Cases
The U.S. immigration system offers few options to the immigrant who has overstayed a visa. Given that overstaying a visa typically disqualifies someone from extending, adjusting, or changing status here in the United States, and that an overstay of 180 days or more carries with it a three-year bar on returning to this country (or a ten-year bar if the overstay is a year or more), there is little incentive for the overstay to leave and little chance of obtaining legal status. The law dictating the bar on re-entry was originally enacted to reduce overstays, but, ironically, it has created a perverse incentive for immigrants to remain in the United States illegally owing to the difficulty of return.
The principal way around this disqualification is the automatic waiver of the ground of inadmissibility for an overstay who has been petitioned by an immediate relative, which the Immigration and Nationality Act (INA) defines as a spouse, parent, or unmarried child under 21 years of age of a U.S. citizen. Qualifying relatives in the United States can obtain permanent residence, or a “green card,” as it is commonly known.
As the saying goes, you can pick your friends, but you can’t pick your family. On the other hand, you can pick your spouse, and that fact may seem like an answer to the prayers of a desperate immigrant.
In a normal marriage case, where the immigrant is adjusting before U.S. Citizenship and Immigration Services (USCIS) rather than in an immigration court proceeding, it makes no difference whether the immigrant is currently in status or has overstayed the time granted on admission. The main concern of the USCIS is to ensure that petitioner and beneficiary have entered into a bona fide marital relationship, that is, they have not entered into marriage to evade immigration laws.
Procedurally, the couple files the application packet, after which USCIS sends out receipts and a fingerprint notice. The immigrant receives an employment authorization document, and after background checks, if all goes well, the couple goes to the local USCIS District Office for an interview with an immigration officer who goes through the applications with them. First, the officer reviews the I-130, Petition for Alien Relative, as to the bona fides . The couple should have brought documentary evidence of their relationship—typically, evidence that they’re living together, commingling finances, and holding themselves out as a married couple. The officer may question the couple as to the validity of the marriage, bringing up any apparent discrepancies in the paperwork. Next, the officer will review, via the I-864 Affidavit of Support, the citizen’s ability to provide for the immigrant financially. Finally, the officer will review the immigrant’s own qualifications for permanent residence on the I-485 Application to Register Permanent Residence or Adjust Status. If there are no grounds of inadmissibility (or no grounds that cannot be overcome by a waiver), the officer will approve the application and the immigrant can expect the green card in the mail within a few weeks.
As anyone who has seen the movies Green Card or Nueba Yol 3: Bajo la Nueva Ley knows, the apparent ease of obtaining permanent residence through marriage, together with the difficulties of doing so other ways, can make filing a fraudulent case look like a good way for desperate immigrants to get legal status in the United States. Unfortunately for them, the folks in the fraud unit at USCIS have watched these movies as well.
Jack Martin, director of special projects at the Washington, D.C.-based Federation for American Immigration Reform (FAIR), says, “We hear from U.S. citizens who complain about the fact that they’ve been lured into a marriage by someone seeking the opportunity to obtain a green card, and then splitting.” He adds, “You don’t have any idea how much fraud is going on undetected.”
According to David Santos, Northeast regional media manager for USCIS, USCIS does not keep statistics on denials in marriage cases. When asked what controls USCIS has in place to combat marriage fraud, Santos said, “The 1986 Immigration Marriage Fraud Amendments . . . were enacted to deter marriage fraud. They imposed a two-year conditional residence on certain beneficiaries and imposed criminal penalties for immigration-related marriage fraud. Moreover, USCIS has created a Fraud Detection and National Security (FDNS) office to enhance the integrity of the country’s immigration system by detecting, pursuing, and deterring immigration benefit fraud.”
The conditional residence requirement that Santos refers to relates to cases in which the immigrant obtains permanent residence prior to the couple’s second anniversary; in such cases, the green card is issued for two years rather than the normal ten years, and the immigrant must file the I-751 Petition to Remove Conditions on Residence. If the couple is still together, they file the petition jointly; in cases of abuse, divorce, death of the U.S. citizen petitioner, or extreme hardship, the immigrant can file with a request for a waiver of the joint filing requirement.
Martin would concur about the effect of the 1986 Immigration Marriage Fraud Amendments: “I think that the 1986 reforms that set the two-year conditional requirement cut down on the then-rampant marriage fraud; prosecutions have gone down considerably since then.”
There are varying types of marriage fraud, ranging from individual cases where a friend helps out a friend, or where money changes hands on an individual basis, to fraud rings where brokers put U.S. citizens in contact with immigrants. The latter are, obviously, a priority for USCIS, and the Department of Homeland Security’s investigative arm, U.S. Immigration and Customs Enforcement, as recent major marriage fraud ring busts and prosecutions in Detroit, Dallas, and Cincinnati show. Although many nonlawyer “immigration consultants” or “notarios” are responsible for filing false applications (see sidebar at left), lawyers can also be complicit. According to Santos, without commenting on specifics of individual cases, “while a significant number of practitioner discipline cases involve attorneys who are being disciplined as a result of state disciplinary orders or criminal convictions, attorneys have also been independently disciplined for unethical and unprofessional conduct before USCIS. Attorneys should review the Rules of Professional Conduct for Practitioners in 8 CFR 292.3 (and the DOJ [Department of Justice] rules if they practice before EOIR [(Executive Office for Immigration Review, or Immigration Court)]).”
As officers of the court, immigration attorneys should ascertain that the case is a meritorious one before submitting documentation. Sometimes, that’s an easy thing. Manchester, New Hampshire, attorney Brent Poirier remembers one such case:
About 15 years ago a man came to me and said that he had entered the U.S.A. legally as a tourist and had married a U.S. citizen some months later, and would I help him file for a green card. I said sure, and began to interview him. I asked for some biographical information about him, and then about his wife. He provided me with a different address for her than for himself. I asked why she had a different address, and he said it was because her place was closer to where she worked. I noted that the two places were only about three miles apart, and I said that didn’t make sense—why would she live in a different location? He then said that he needed to be honest with me, that she was really just a friend, and he said that he wanted a green card, and the only way he could get one is through marriage, and she agreed to pretend to be married to him.
I put my pen down and said to him that he needed to listen very carefully. He smiled, and I said there was nothing funny about this. I explained that the immigration officials are often very nasty to the people who follow the rules—the good people who have nothing wrong in their background. I said to him that he must not do this. If he did, and he was ever caught, they would be merciless to him—they hate frauds. I said “They are mean to the good people. If they catch a fraud—they are beasts from the pits of hell. You do not want to do this.”
He said OK, and left my office. I tore up the paperwork, and I hope I talked him out of it.
Crystal Williams, executive director of the Washington, D.C.-based American Immigration Lawyers Association (AILA, an affiliate of the American Bar Association), says, “I’m aware of an attorney who last I heard is doing prison time—attorneys need to be diligent and mindful not to be caught up in any schemes that clients or potential clients might be running.”
This writer has had to decline representation in cases in which the immigrant mentioned plans to get married but didn’t know his fiancée’s surname, as well as cases in which the immigrant frankly admitted that the marriage was just for papers, or in which the U.S. citizen’s stated motivation was “to help a friend.”
It comes down to attorney preparation and intake. Take the time to get to know your clients, and your case—if something looks odd to you, it will definitely look odd to the adjudicator.
However, at times USCIS may deny a meritorious case with an erroneous determination of fraud. At this point, the options include seeking a reconsideration or an appeal or waiting for a referral to the immigration court and fighting it out there.
Don’t lose heart in cases where the attorney has performed due diligence and the end result is an adverse decision. As AILA’s Williams puts it:
Certainly there is a good number of instances of USCIS adjudicators making an inappropriate finding of fraud; when this happens, the decision needs to be reviewed—there needs to be an outlet for due process. The word “fraud” is being thrown around rather casually these days; adjudicators are making findings of fraud where it’s not a material misrepresentation and may not even be a misrepresentation at all, just a coloring of interpretation.
Williams mentioned interviews where the adjudicator separates the couple and questions them as to things the adjudicator feels both should know (for example, what side of the bed each sleeps on or colors of bedclothes) and said it’s not unusual for one person to perceive the color differently, giving a “wrong” answer.
The private bar and USCIS should have a collaborative relationship; as lawyers, we shouldn’t present fraudulent cases and USCIS shouldn’t deny meritorious ones. Zealous advocacy begins when the latter occurs.