Marriage Fraud and Misrepresentation
WHAT IS IT, WHY IT IS IMPORTANT AND WHAT DO I DO NOW?
Section 212(a)(6)(C)(i) of the Immigration and Nationality Act states that…
In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.
USCIS uses this section should they determine that a person has sought to obtain lawful permanent residence by marriage solely for the purpose of immigration. These marriages are often referred to as “sham” marriages. Essentially, there is one question that must be answered when USCIS looks to establish whether or not a marriage is valid, or bona fide, to support the issuance of a green card. If that determination is made in the negative, the person is determined to be inadmissible, or unable to obtain a green card based upon the information provided. The question that must be satisfied is “Did the bride and groom intend to establish a life together at the time they married, or at the inception of the marriage?”
For a USCIS adjudicator to find fraud, he or she must determine that:
the alien made a false representation of a material fact;
the false representation was made with the alien’s knowledge of its falsity;
the false representation was made with the intent to deceive a government official authorized to act upon the request (generally the consular or immigration officer); and the government official believed and acted upon the false representation.
For an adjudicator to find misrepresentation, he or she must determine that:
the alien made a false representation of a material fact;
the misrepresentation was willfully made; and
the fact misrepresented was material.
The person is only inadmissible for fraud or willful misrepresentation if the false representation was willfully made.
The term “willfully” should be interpreted as “knowingly” as distinguished from accidentally, inadvertently, or in a good faith belief that the factual claims are true. To find the element of willfulness, the officermust determine that the person had knowledge of the falsity of the misrepresentation, and thereforeknowingly, intentionally, and deliberately presented false, and material facts.
When determining the “willfulness” of a person’s false representation, the officer should consider the circumstances that existed at the time the benefit was issued. For that reason, it is not necessary that the marriage be “perfect” or even that immigration to the United States may have not been a factor leading to the decision to marry.
A false representation only renders a person inadmissible if it is material. A “material”misrepresentation is a false representation concerning a fact that is relevant to the person’s eligibility for an immigration benefit. A misrepresentation is material if it has a natural tendency to influence or was capable of influencing the decisions of the decision-making body. The misrepresentation is only material if it led to the persongaining some advantage or benefit to which he or she may not have been entitled under the true facts.
So to determine if a representation made, or even a fact concealed, support a determination of fraud or misrepresentation first, person would be inadmissible on the true facts, like if your spouse is your sibling, for example; or
The misrepresentation tends to cut off a line of inquiry, which is relevant to the applicanteligibility and which might have resulted in a proper determination that he or she is inadmissible. An example of this might may if you fail to disclose a prior criminal conviction.
A determination of marriage fraud or misrepresentation is important to anyone seeking to obtain residence, or honestly for any other lawful entry in to the U.S. because it is a determination that sticks to a person like glue. Once a determination of this type has been issued by USCIS, it is difficult to remove and may affect a future determination by USCIS even if unrelated to a marriage-based application. Often people seeking to obtain marriage-based green cards fail to appreciate the nature of the process fully.
The burden to prove that the marriage is valid is ALWAYS on the person seeking the green card. Because USCIS is an administrative agency and NOT a court of law, your rights and interests are not protected as strictly as you may believe. Often, USCIS adjudicators seek to make the process very uncomfortable, particularly in new marriages, and can schedule multiple interviews if they believe that misrepresentation is present.
Of course, the secret to properly pursuing a green card based upon marriage is to prepare for and understand the process as early as possible. If however, you are struggling with this issue after a determination has been made against you, it would be most advisable to seek the advice of a qualified immigration attorney to properly evaluate your situation and advise you on how to best move forward toward your goal.
FRANKEL LAW is a full service law firm that concentrates in the area of U.S. immigration law. We have been a member of the American Immigration Lawyers Association for close to 25 years and regularly assist people in most aspects of immigration law. Call FRANKEL LAW at 305-759-6100 or at 1-800-394-EVAN (3826) so we may help you to know your rights.
