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A valid marriage between a foreign national and a U.S. citizen or resident usually results in a green card for the foreign spouse. Immigration considers a marriage valid if the parties intended to establish a life together when they got married. Problems that arose afterwards are common in most relationships. Immigration will examine every marriage, but those less than two years old or where there are no children or property in common are going to be more heavily scrutinized.
The charge, or accusation, of fraud usually comes about in the interviewing process after the Immigration Officer separates the spouses and asks questions. If the answers of each spouse – relating to the courtship, the relationship, or household chores – do not match, the officer will doubt the validity of the relationship. Sometimes, under the strain of continued questioning by a federal government employee, a spouse actually admits to fraud although this might not really exist.
I cannot stress enough that entering into a fraudulent marriage for a green card is a crime. However, many cases that result in a fraud accusation are not prosecuted criminally. Going through the process of criminal prosecution is not really necessary for the government because the foreign national will still face severe immigration consequences including deportation.
If a marriage interview results in a finding of fraud, the worst thing foreign nationals can do is assume that “nothing happened" merely because Immigration did not try to deport them. An accusation of fraud should be dealt with immediately.
Foreign nationals sometimes do not pursue denied applications when the marriage is headed toward divorce anyway. They believe they can just file again if and when they remarry. This belief is WRONG because the law is designed to prevent this exact thing from happening. Even though there is no criminal conviction, an accusation of marriage fraud prevents the foreign national from receiving residency based on another marriage. It will not matter even if the foreign national has children with the second spouse.
The best way to prevent an accusation of marriage fraud on your marriage-based petition is to have a qualified immigration attorney assist in the process from the beginning. If you have already filed a petition, contact an attorney immediately if the interview resulted in a finding of fraud.
An immigration attorney will try to address the validity of the marriage before an Immigration Judge. It is best to address your case immediately, while the evidence of your valid marriage is fresh. Remember, a failed marriage does not mean your application is worthless. More than half of the marriages in this country end in divorce.