ImageBy Reeves & Associates

Marriage-based immigration is a common and prevalent mechanism for foreign nationals to immigrate to the United States. For example, spouses of U.S. citizens are categorized as an immediate relative, which means that a visa is immediately available to them and they can obtain lawful permanent residence in a fairly short period of time. Spouses of Lawful Permanent Residents may have to wait for a visa for a few years, but can nonetheless obtain lawful permanent resident status eventually.

In order to immigrate through a marriage-based petition, a couple must be ready to undergo the scrutiny of the United States Citizenship and Immigration Services (USCIS). A couple must be ready to prove to USCIS that their marriage was not entered into solely for immigration purposes. Of course, people enter into marriages for a variety of different reasons. For example, a couple may be marrying for companionship and not romantic love. Other couples will enter a marital union for economic and emotional security for themselves and their children.

Whatever the reason, the couple bears the burden of proving that the marriage was not only for immigration benefits. The process begins with a petition that is thoroughly supported by strong evidence of the validity of the marriage relationship. It continues with sufficient preparation for the interview so that the parties know what to expect. This is important even for couples who have been together for many years.

Couples may be separated at the interview. During these separate interviews, the officer will ask each party the same questions and compare their answers. As anyone who has ever watched a game show with a married couple knows, being truly married is no guarantee of being able to accurately answer questions about a spouse or the relationship. Preparation is important. A lot is at stake. If the answers are too dissimilar, USCIS may conclude that the marital relationship does not exist. From there, it is a short step to the conclusion that the marriage is fraud and was entered into solely for immigration benefits.

The consequences of that conclusion can be devastating. The petitioner can be criminally prosecuted, and the beneficiary can forever be barred from being a petitioner or a beneficiary of any immigration petition.

Although very difficult, a finding of marriage fraud may be overcome. A couple will need to provide documentation and evidence to show that the marriage fraud determination was erroneous. Such evidence and documentation will be needed to be supported by effective legal arguments establishing that the marriage fraud determination was based on legally inconclusive or insufficient evidence. If USCIS maintains its position, in some cases, a couple may sue in Federal Court to have the fraud determination overturned so that the person will no longer be subject to the penalty for marriage fraud.

As in most situations, it is better to avoid the problem rather than to try to repair it. The process should begin with consultation and retention of an experienced and knowledgeable immigration attorney. Professionally prepared petitions, thorough preparation for interviews and competent representation at the interview are essential to insure the best possibility of success in navigating the marriage-immigration waters. USCIS begins the adjudication process of most marriage-based cases with the suspicion that the marriage is fraud. Being properly represented levels the playing field so that the couple has a fair chance to have their case adjudicated on its merits.

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