Marriage Fraud 101: Can I Get Away With It?
“If you think it’s easy to fool the U.S. immigration officers – then I would say you should think twice.”
Often I get the following request from potential clients, “why doesn’t my fiance just come to the United States on a tourist visa and we will get married here?”. That’s often the question potential clients pose in response to my discussion of the length and procedure to marry your foreign spouse in their country, and adjust his/her status through the U.S. Embassy or Consulate.
My answer has to be that some people get away with it, but some, perhaps most, do not. The USCIS (United States Citizen & Immigration Service) does not post statistics about marriage fraud. They do post the laws and regulations for Immigration, and one of those Immigration Laws says that if your fiance comes to the United States with the sole intention of getting married in the U.S. and filing then for adjustment of status to their green card and staying here, then this is deemed to be visa fraud. The USCIS has very harsh penalties for anyone they feel has committed visa fraud. People who commit visa fraud can become permanently ineligible to enter the U.S. or receive immigration benefits. There can be severe monetary penalties or even jail time for the U.S. Citizen.
You may enter the United States on a tourist visa, marry a U.S. citizen and file your I-130 Marriage Petition If you then return home before your tourist visa expires you will be Okay. The time when you do run into trouble is when you enter the U.S. on a tourist visa with the clear intention of marrying and staying in the U.S.
There are stories on the internet about people who were married in the U.S. while on a tourist visa, did not return home, and successfully adjusted their status to Green Card holder. It is possible to adjust your status under the I-485 form from a tourist visa to a green card because the people in this scenario were able to prove to the USCIS that they came to the U.S. with honest tourist intentions, and they happened to make a spur-of-the-moment decision to get married. But entering the U.S. on a tourist visa and filing an I-130 marriage petition followed by the I-485 Adjustment of Status, with no preconceived intent to marry can be an uphill battle especially if you have a difficult Immigration Officer in the marriage interview. All marriage and adjustment of status petitions filed inside the United States will require a marriage interview.
5 Things you should know about Tourist Visas and Marriage Petitions
1. Immigration Officers are watching:
When you arrive on a tourist visa, Customs and Border Protection inspection officers, at a port of entry, will ask you the purpose of your travel to the United States. You should always be upfront and honest with the immigration inspectors. If you state your intent as, “To see the Golden Gate Bridge,”
and a search of your luggage reveals a wedding dress, be prepared for a long interrogation session. If the border official believes that you’re not coming to the U.S. for just a visit and you cannot prove your intent to leave before your visa expires, you’ll find yourself on the next plane home.
2. The marriage must be in good-faith:
The most important thing you have to prove to the USCIS is that your marriage was entered in good faith, or as lawyers, judges, and immigration officers will say, “bona fide”. If immigration officers suspect that a tourist visa was used to file an I-130 marriage petition only for the immigration benefits, they will deny the application and deport your fiance back to her home country. The most important part of a marriage petition is the documents and proof that the marriage is a bona fide marriage.
3. The 30/60 Day Rule:
The Department of State has an unwritten ‘30/60 day rule’ to help consular officers determine if someone has committed visa fraud. Even though this rule was developed by the Department of State, it is also used by USCIS when they are adjudicating applications within the United States. Foreign
nationals coming to the US on tourist visa are subject to this “30/60 day rule.”
This “30/60 day rule” makes it risky to apply for change of status or marriage based adjustment of status within 60 days of arriving in the US and potentially perilous within 30 days of arriving.
4. What will happen if you are denied Adjustment of Status?
If you enter the US on a tourist visa and got married, filed a I-130 Marriage Petition, either of the following two things will happen
- You can successfully apply for Adjustment of Status using the I-485 application after the marriage and live happily ever after; or
- The immigration officer can find there was preconceived intent, deny the application, and send you back to your home country (please note that if the immigration officer does not find that you entered into a fraudulent marriage you can always seek your immigrant visa through the consulate in your home country). There can be other, stronger, penalties for the U.S. Citizen if the immigration officer finds that the marriage was fraudulent.
The possibility of being denied an adjustment is very real, so you should be prepared for any eventuality.
5. No excuse for visa fraud:
If you think it’s easy to fool the U.S. immigration officers – then I would say you should think twice. I once had an immigration officer tell me that they see on average between 8 and 16 cases per day. They know all the tricks, and they can see a true marriage, as well as a fraud, from a mile away.
If you are caught violating the immigration laws, you could be accused of committing visa fraud. If fraud is found, you will face serious consequences. At the very least, you will have to return to your home country. Even worse, the foreign spouse may receive a ban from reentering the U.S., a ban that could be indefinite.
John B. Buda
Buda Law Group
Buda Law Group has served many families interested in marriage or fiance visa, always with successful results. At Buda Law Group, we speak English, Chinese, Spanish, and Russian!
Please note that Buda Law Group and the good folks over at http://chinesemarriageusa.com/ to offer affordable, effective marriage and fiance visa services for Chinese-American couples.