Many people from around the world have a desire to start a new life- or immigrate- to the United States. Unfortunately, some people wrongfully use immigration laws to try to “skip the line” or get ahead and fast-track the immigration process by using marriage as a tool to facilitate immigration (not for the actual intention of marrying for love). The U.S. Citizenship and Immigration Services (USCIS) works to determine individuals who enter into illegitimate marriages for the purpose of fraudulently aiding immigration. For out of country people to become naturalized citizens through marriage, the following criteria are required:
- The individual seeking to immigrate must be 18 years of age or older;
- The individual must possess a green card for at least three years preceding the filing of a Form N-400, which is an Application for Naturalization (i.e. Immigration form);
- The individual must have lived in marital union with a U.S. Citizen for the three years before the filing of the application and through the final examination/approval of immigration;
- The person applying for citizenship must have lived within the State or USCIS district with jurisdiction over the applicant’s place of residence for at least three months prior to the filing;
- Continuous residence in the United States under a lawful status/permanent resident status for the three years preceding the date of filing the application;
- Reside continuously within the United States from the date of the filing of the application for naturalization until the time the application is approved;
- Be physically present in the United States for at least 18 months out of the three years immediately preceding the filing of the application;
- Possess an ability to read, write and speak the English language and have knowledge and understanding of U.S. Government and history (known as U.S. Civics);
- Be a person of good moral character, understand and agree to the principles of the United States Constitution and disposed of good order and happiness toward the United States during the relevant periods under the law.
When foreign spouses married for less than two years are granted conditional permanent residence status in the United States, the significant other/spouse serves as a sponsor allowing for temporary immigration. Once the parties are married for two years, the USCIS will perform a review
of the marriage which can result in permanent citizenship status if the criteria as outlined above are met.
What are the Consequences of Immigration Fraud?
If one spouse is found to be in the United States unlawfully or with an expired or invalid immigration status, the following consequences could apply:
- If a spouse is residing in the United States illegally for a period of more than six months, they could be given a three-year re-entry ban which results in them not being able to re-enter the United States for a period of three years;
- If a spouse is found to be residing illegally in the United States for more than a year, the spouse could be given a ten-year re-entry ban which results in them not being able to re-enter the United States for a period of ten years;
In family court cases, if the court determines or believes that one spouse entered into a “sham” marriage or union for the purpose of obtaining immigration status, the court can address this unfortunate behavior in a variety of ways including awarding the victim spouse a disproportionate or greater amount of the assets, awarding attorney fees to the victim spouse or determining that the inappropriately acting spouse is not eligible for spousal maintenance or other benefits that would normally be derived from a marriage.
What are the Signs of Immigration Fraud that the Courts Often Look To?
While every situation is unique, there are some telling signs that the court will look to and give particular weight. Some of these considerations can include:
- The spouse desiring immigration status placing significant pressure to marry him or her quickly on the victim spouse;
- Withholding details of the marriage from extended family or even never sharing the fact of the marriage with family members;
- The wrongfully-acting spouse never introducing the victim spouse to their friends, family members, colleagues or associates;
- Spending excessive money or trying to spend down joint/marital assets to provide financial support to family remaining in a foreign country;
- Refusing to share financial details including banking information, financial history, and other similar information;
- Asking the victim spouse to sponsor additional extended family members of the wrongful acting spouse;
- The fraudulent spouse dramatically changing his or her behavior from before marriage to after marriage without apparent reason;
When the USCIS investigates or screens for fraudulent marriage situations to determine whether to allow immigration status, they will often put particular weight on the following factors or considerations:
- If the married couple speaks different languages and appear to have minimal ability to communicate with one another;
- Whether the married couple appears to have significant differences in their religious beliefs or outlook;
- If there is a significant age gap in the ages of the married couple;
- Whether the married couple actually resides together or if they occupy different residences;
- Whether the couple has openly expressed or advertised their marriage to family and friends such as if they appear to be married on social media platforms;
- Whether the couple was married shortly after they met one another;
- Whether one spouse is a citizen of a country with unusually large numbers or concentrations of marriage fraud cases;
- Whether either spouse has a criminal record such that the likelihood that the spouse is engaging in this type of fraud is consistent with a past criminal record;
If the USCIS determines and makes a finding that the marriage is fraudulent, there can potentially be civil and criminal penalties for either: the spouse who engages in the fraud or both spouses, if it appears that both were complicit with the wrong-doing or fraud. The USCIS has the right to deport the spouse who does not deserve immigration status through a fraudulent marriage.
If you have a divorce or dissolution of marriage case in Missouri or Kansas involving complicated immigration issues, it is important that you retain a knowledgeable and experienced family law attorney. Call Pingel Family Law today at (816) 208-8130 to schedule your consultation to discuss these and other difficult family law issues.