An individual who knowingly enters into a fraudulent marriage for purposes of evading the immigration laws may be criminally prosecuted. Under Immigration and Nationality Act (INA) section 275(c), such an individual “shall be imprisoned for not more than five years, or fined not more than $250,000, or both.” While many people may have inkling as to the criminal penalties associated with such conduct, few may be aware of the far-reaching immigration consequences of a marriage that is deemed fraudulent.
If an immigration officer adjudicating a marriage case determines that the marriage is not bona-fide, he or she will likely issue a Notice of Intent to Deny (NOID) the case. If the couple does not respond to the NOID or if the response does not persuade the officer of the genuine nature of the marriage relationship, the case will in all likelihood be denied. For some people in this unfortunate circumstance, they may be issued a Notice to Appear for Removal Proceedings. For others, however, for whatever reason, the case is denied and nothing further happens to them. Years pass, and the individual may divorce and remarry and petition for permanent residence based on the new marriage. He or she may be surprised to learn, even if the second marriage is totally legitimate and genuine, that the case is not approvable due to Section 204(c), a killer provision in the Immigration and Nationality Act that effectively bars any future approval.
204(c) reads as follows:
Limitation on orphan petitions approved for a single petitioner; prohibition against approval in cases of marriages entered into in order to evade immigration laws; restriction on future entry of aliens involved with marriage fraud.-Notwithstanding the provisions of subsection (b) no petition shall be approved if-
(1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the souse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws or
(2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purposes of evading the immigration laws.
In practical terms, this means that should USCIS make a determination that a previous marriage was fraudulent, it could invoke this section of the law to deny any future applications for permanent residency. There are, of course, legal exceptions to this rule, and USCIS may not just use this as a blanket prohibition without sufficient evidence in the record, but the point is that any individual whose marriage case has been denied by immigration ought to consult with an immigration attorney before filing a new case to assess the significance and implications of the first case and whether a 204(c) finding could potentially be invoked.
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