Marriage-based immigration to the United States is a shortcut to obtaining a U.S. Green Card. Consequently, cases of sham marriages have become frequent in recent years. Once an applicant is determined to have entered into a sham marriage, the consequences are severe. So, how does U.S. immigration law determine what constitutes a sham marriage?
According to U.S. immigration law, when reviewing marriage-based immigration, the primary concern for the U.S. Citizenship and Immigration Services (USCIS) is whether the main purpose of the marriage is to seek legal residency in the United States for the spouse. There are two procedures to prevent this: If the foreign spouse is abroad, they must first apply for entry into the U.S. Consular officers will examine the background of the marriage, such as whether the couple fell in love after meeting only a few times or if they have never lived together. If no obvious fraudulent behavior is detected, an immigrant visa is issued.
The second procedure, based on the 1996 immigration law, changed the U.S. residency status of foreign spouses of U.S. citizens or permanent residents to a "conditional residency" with a two-year validity period. The purpose of this is that if the marriage is a sham, problems are likely to arise within those two years.
If the marriage lasts for two years, the U.S. citizen or permanent resident and their foreign spouse must jointly apply for "permanent residency" within 90 days before the expiration of the "conditional residency." During this application process, the presiding immigration officer will separately interview the couple about their daily life and financial status (such as whether they have a joint bank account), and the officer may even check if they hold identical keys to their residence. If the application to adjust to permanent residency is not filed by the end of the two years, the foreign spouse's "conditional residency" expires, and they become an undocumented immigrant who can be deported. The only exception is for foreign spouses who have been abused by their U.S. citizen or permanent resident spouse, who may apply for adjustment to permanent residency independently without the sponsorship of their U.S. spouse.
If, during the interview for permanent residency, the immigration officer discovers that the "sole" purpose of the foreign spouse marrying the U.S. citizen or permanent resident was to obtain U.S. residency, the marriage can be determined to be a "sham marriage." Before 1996, foreign spouses in sham marriages were subject to deportation, while the U.S. parties involved were not penalized. However, under the 1996 immigration law, U.S. citizens or residents involved in sham marriages can also be prosecuted for federal marriage fraud.
In the review of marriage-based permanent residency applications, if it is determined that the "sole purpose" of the marriage is to obtain U.S. residency, the marriage can be classified as a sham, leading to the deportation of the foreign spouse and criminal prosecution for fraud against the U.S. spouse. Whether a foreign spouse can obtain U.S. residency depends on two other factors: first, the legal validity of the marriage—whether both parties are eligible to marry legally (bigamy, polygamy, etc., can render a marriage invalid), and whether the marriage was officiated by a legal authority or person in accordance with local laws. Second, at the time of applying for entry or residency, the marital relationship must still be legally valid and a genuine marital relationship must exist (for example, separated couples cannot apply for a U.S. immigrant visa or permanent residency).