A Bad Marriage Is Not The Same as a Sham Marriage

Marriage to a U.S. citizen is the most common way of getting a legal permanent resident status in the United States especially when the alien has been out of status in the country. Fraud statistics show that between 1998-2007 more than 2 million people have reported marriage as a means to gain residency within the United States.

What is a “sham marriage”? It has been defined as a marriage entered into for the primary purpose of circumventing the immigration laws with no intent to establish a life together. One classic example is when Mr. A, an alien, entered into an agreement with Ms. B, a U.S. citizen, to get married so Mr. A can apply for a green card. While Mr. A and Ms. B are living in one house, they are not living together as husband and wife. They agreed that after Mr. A gets his green card, they will file a divorce and Mr. A can resume his relationship with his ex wife.

A marriage is not sham just because one wants to obtain a green card if the marriage was entered into in good father with the intention to establish a life together. Just as marriages for money, hardly a novelty, or marriages among princes and princesses for reasons of state may be genuine and not sham marriages, so may marriages for green cards be genuine. An intent to obtain something other than or in addition to love and companionship from that life does not make a marriage a sham. Rather, the sham arises from the intent NOT ‘to establish a life together’”.

A bad marriage or non-traditional marriage does not equate to a sham marriage. Consider a case where the U.S. citizen husband is disabled and met his spouse about 16 years younger through a friend. He needed a caregiver and she needed somebody to take care of her basic needs such as a place to live and food to eat. They married and it was understood before the marriage that there would be no consummation of marriage and that they would sleep in separate bedrooms. The husband testified that he married his wife for the purpose of obtaining a caregiver. The wife testified that while she was not in love with her husband, they liked each other.

He had nobody, he was sick and she felt sorry for him. She decided to marry him and to take care of him. She decided when she married him that she would stay with him for as long as she lived. The court found no sham marriage. On the contrary, the court stated that the reasons for the marriage appeared to be far sounder than exist for most marriages. Whether the marriage was consummated, whether the couple was in love, whether they even shared a bedroom was all determined not consequential in the face of what the court characterized as a valid and lasting husband and wife relationship.

The most important question in marriage cases is: Did the couple intend to establish a life together at the time of marriage? There is no magic formula to determine what and how much evidence is necessary to prove this. Some adjudication officers (AOs) are not much interested in documentation and instead rely on questioning ---usually about how the couple met and how the relationship developed – to reach a judgment about the marriage. In one case the AO concluded that the marriage was sham because the alien was in a previous same-sex domestic relationship. The couple has every document to prove they are living together and have commingled their funds and properties. I personally know people from my hometown who were gays and lesbians during their younger years, but are now happily married to the opposite sexes and have children. The challenge is how to convince the AO that a gay or lesbian can decide later in life to be “straight”.

Unconventional or nontraditional marriage will typically raise the suspicion of the AO. The USCIS Adjudicator’s Field Manual lists ten red flags that the officer should look for, to wit: large disparity of age, inability of petitioner and beneficiary to speak each other’s language, vast difference in cultural and ethnic backgrounds, family and/or friends unaware of the marriage, marriage arranged by a third party, marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States, discrepancies in answers to questions of which a husband and wife should have common knowledge, no cohabitation since marriage, beneficiary is a friend of the family, and petitioner has filed previous petitions on behalf of aliens especially prior foreign spouses.

Regarding large disparity of age, I’ve noticed that it’s more acceptable when it’s the man who is much older. I’ve seen cases that were approved when the man was ten to twenty years older than the woman. But many cases were disapproved when it’s the other way around. Same is true with physical appearance. It’s acceptable when the man is much taller than the woman, but not the other way around.

Additional factors not listed about that may raise red flags are divorces and marriages done in Las Vegas. Unless one of the parties in the divorce proceedings can prove that he or she actually lived and worked in Las Vegas before the divorce was filed, the AO is most likely to deny the adjustment of status based on a finding that the marriage was not valid because the divorce in Las Vegas was not valid. When the couple is called back for a second interview, it is highly likely that they will undergo a marriage fraud interview. It is important they prepare thoroughly before the interview. If the AO asked something that was not taken during the preparation, do not be nervous. Answer the questions truthfully. It is better to answer “I don’t know” or “I don’t remember” than to guess or fabricate an answer. Pay attention to activities and events the weekend and days before the interview. Refrain from talking about or proving details beyond what is asked. Also, try to avoid making it appear that the marriage is perfect. The AO expects the couple to remember important events and dates such as: wedding date, date of proposal, and where and how the proposal was done, how did the couple celebrate Christmas, birthdays, New Year’s day, Thanksgiving, etc. The AO asks about work schedule. The couple is expected to know each other’s work schedule, salary and other details of the job such as name of employer, location and nature. The key to a successful interview is preparation. But no matter how hard you prepare, if you’re lying about something it will likely come up.

ABOUT THE AUTHOR: Susan V. Perez, Esq.
Susan V. Perez is a member of both the California and Philippine Bars with a combined eighteen (18) years of experience in both jurisdictions in the areas of Immigration and Naturalization, Appellate, Juvenile Dependency, Family, Corporate, Civil, and Criminal Law. Susan Perez earned her Law degree from San Beda College, Philippines. Atty. Perez is also admitted to practice before the Immigration and Naturalization Service, Immigration Courts, Board of Immigration Appeals, Ninth Circuit of the Court of Appeals, U.S. District Court for the Central and Southern Districts of California. She is a member of the American Immigration Lawyers Association and San Diego County Bar Association. She is fluent in English and Tagalog.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.

Find a Lawyer