Marriage fraud, a topic my late colleague David North covered prolifically, is an understated affront to our legal immigration system. On February 13, the Board of Immigration Appeals (BIA), the DOJ tribunal that reviews administrative immigration decisions, added a new mechanism to foil illicit claims in its an opinion in Matter of Jin — and this one could be a game changer because it allows U.S.-citizen spouses duped by bogus claims of love to clean up their mistakes and seek sweet justice.
Family-Based Migration
Each year, roughly one million new immigrants receive what’s called “lawful permanent resident” (LPR) status, that is, “green cards”.
As my colleague Jessica Vaughan has reported, most — 61 percent — of green cards have been “family-based” visas, granted to foreign nationals related to someone already here.
“Immediate-relative” visas, which are issued to the spouses, unmarried minor children, and parents of U.S. citizens are the most popular because, unlike other categories, there are no annual limits on their issuance and thus no waiting period for a green card.
And of the 1.018 million-plus green cards issued in FY 2022 (the last year for which stats are available), more than 238,000 (23.4 percent of the total) went to the spouses of U.S. citizens.
Adjustment of Status
Not all of those green cards were issued to foreign nationals living abroad: In FY 2022, just over 54 percent were apportioned among aliens in the United States who “adjusted” their status under section 245 of the Immigration and Nationality Act (INA).
Adjustment is limited to lawfully admitted aliens and those who have been paroled into this country, and in essence it’s a convenience Congress provides to alien beneficiaries of approved visa petitions, because it spares them the time and expense of leaving the United States and consular processing abroad.
Adjustment applicants must satisfy three requirements to receive a green card: (1) file an adjustment application (Form I-485); (2) prove they are “eligible to receive an immigrant visa” and are “admissible to the United States for permanent residence”; and (3) establish “an immigrant visa is immediately available” when their applications are filed.
Consequently, family-based adjustment for an alien here has two parts. First, a U.S. citizen or green-card holder files a “petition for alien relative” (Form I-130) with USCIS seeking a visa for the qualifying alien family member, and then the alien family member files an I-485 with USCIS or the immigration court seeking the adjustment.
Marriage Fraud — Both “One-Sided” and Consensual
Because green cards are precious commodities — permitting the alien to live and work in the United States indefinitely and placing the alien on a path to citizenship — immediate-relative visa status for aliens who would otherwise be unable to remain has prompted no small level of fraud.
A USCIS unit, the Fraud Detection and National Security (FDNS) directorate, is tasked with “detecting, deterring, and administratively investigating immigration-related fraud”, including sham marriages, and as the Government Accountability Office (GAO) has reported, “Potential marriage fraud was consistently the most common subject of” FDNS’s “benefit fraud investigations”.
“Specifically,” GAO noted, “between 41 percent and 49 percent of completed benefit fraud cases each fiscal year investigated potential marriage fraud.”
Often, that fraud is a two-way street, with a U.S. citizen agreeing to enter unholy wedlock with an alien in exchange for remuneration or out of friendship. But not always.
Years ago, my colleague Dan Cadman discussed what he referred to as “one-sided marriage fraud”, i.e., where “a citizen or resident alien believing it is love is duped into marriage by an alien all about angling for a green card, leaving the duped one with, at best, a broken heart and emotional scars, and at worst physical or mental abuse, and often financial mayhem”.
I know that subject well. When I was a trial attorney for the then-Immigration and Naturalization Service (INS) in San Francisco in the mid-1990s, “duped” citizen brides and grooms would regularly show up in my office with various tales of woe, some too salacious for this family-friendly website and sometimes with photographic proof.
Challenges and Rescissions
Marriage fraud is so pervasive in the “legal” immigration system that there are numerous safeguards in the law to (1) prevent it and (2) reverse visa grants to aliens who engaged in fraud.
As the BIA noted in its 1983 opinion in Matter of Laureano, “A marriage entered into for the primary purpose of circumventing the immigration laws ... is not recognized for the purpose of obtaining immigration benefits.”
Consequently, petitioners who file I-130s on behalf of their alien spouses bear the burden of proving by a preponderance of the evidence their marriages were legally valid and bona fide ab initio.
In adjudicating those I-130s, USCIS by regulation can ask the parties for documentary proof of the validity of their marriage and call the couple in for an interview (which often involves separating the parties and questioning them individually), but as the Board noted in Matter of Jin, “USCIS has frequently waived such interviews in recent years and did so in this instance.”
If USCIS adjudicators suspect fraud, they can ask FDNS to do a deeper dive into the relationship, during which agents may interview the couple, neighbors, and co-workers, and subpoena relevant documents.
When USCIS denies an immediate-relative petition based on fraud or another ground, the petitioner, again by regulation, may appeal that denial to the BIA, which the Board adjudicates based on evidence filed by the government (including any FDNS report) and the petitioner (again, often with photographs and receipts).
USCIS can’t usually catch all the fraud at the outset, but if the agency determines after granting a petition that the marriage was fraudulent, section 205 of the INA as implemented by 8 C.F.R. § 205.2 provides a mechanism under which the agency can revoke the visa for “good and sufficient cause”.
Ancient BIA precedent confirms that the petitioner bears a continued burden of proof in those section 205 rescission proceedings to establish eligibility for the status sought in the petition, up to the point the beneficiary receives a green card.
And immigration judges are not bound by a USCIS approval of an I-130 to an alien spouse seeking adjustment in removal proceedings.
As the BIA held in its 2021 opinion in Matter of Kagumbas, the immigration court retains “authority to inquire into the bona fides of a marriage” when adjudicating an I-485 adjustment application, and as a trial attorney I often delved deeply into purported marriage claims.
Moreover, to deter quickie sham marriages for immigration purposes, section 216 of the INA provides that if the couple has been wed for fewer than 24 months before a green card is issued based on an approved I-130, the alien can only be granted “conditional” LPR status.
That, in turn, starts a two-year clock for DHS to terminate an alien’s oxymoronic “conditional permanent resident” status upon a determination of fraud or because the marriage was subsequently “judicially annulled or terminated, other than through the death of a spouse”.
As the Ninth Circuit has explained: “The two-year conditional period prescribed by these provisions ‘strikes at the fraudulent marriage by the simple passage of time because it is difficult to sustain the appearance of a bona fide marriage over a long period.” (Cleaned up.)
Ninety days before the end of that two-year conditional LPR period, the alien and petitioner must file an I-751 “Petition to Remove Conditions on Residence” with USCIS.
If the petitioning spouse won’t sign off on the I-751, the alien must apply for a waiver of that joint-filing requirement and prove, inter alia, that the marriage “was entered into in good faith”.
By regulation, if the alien fails to file the I-751, or USCIS denies it, the alien’s conditional LPR status is terminated and USCIS is supposed to place the alien into removal proceedings.
At that point, the alien can challenge USCIS’s denial of a waiver in the I-751 process before an immigration judge, who will (or should) then examine the bona fides of the marriage.
As the BIA noted in Matter of Jin, however: “While previously USCIS often may not have placed such aliens in proceedings, USCIS policy was recently amended to require that a notice to appear be issued ‘in cases presenting substantiated fraud or material misrepresentation.’”
In addition, DHS may place aliens who received green cards through a subsequently discovered bogus marriage to a U.S. citizen directly into removal proceedings and charge them with “marriage fraud” under section 237(a)(1)(G) of the INA.
Under that provision and section 240(c)(3)(A) of the INA, the government bears “the burden of establishing by clear and convincing evidence” that “the alien has failed or refused to fulfill the alien's marital agreement which ... was made for the purpose of procuring the alien's admission as an immigrant”.
Finally, within five years of adjustment of status, section 246 of the INA enables DHS to seek to rescind the green card of any alien who was not eligible for adjustment, including due to marriage fraud.
When I was a young trial attorney, I handled many rescission cases, but over the past two decades they have become less common because immigration officers have been inundated with more basic immigration violations, like asylum fraud.
Matter of Jin
And yet, despite all of that scrutiny and all those opportunities for adjudicators and investigators to ferret out fraud and rescind bogus status, marriage fraud still vexes the legal immigration system.
Which brings me to Matter of Jin, where the BIA recognized yet another legal mechanism for deterring fraud.
The petitioner, Zihao Jin, is a U.S. citizen who filed an I-130 for her “husband”, a Chinese national named Hanfei Xiong.
After USCIS approved that petition, Jin claimed to have “discovered new evidence” that Xiong “engaged in marriage fraud” and asked the BIA to deny her own petition.
That’s a novel move for a successful petitioner, and while DHS opposed Jin’s appeal, it failed to explain why.
Notably, however, the regulations delineating the powers and jurisdiction of the BIA do give the Board authority to “review de novo all questions arising in appeals from decisions issued by DHS officers”, which would include Jin’s petition, and admittedly, nothing in the law prevents an individual from appealing a USCIS decision that goes in her favor.
Consequently, the BIA concluded it had the power to consider her challenge, but because the regulations also prevent the Board from engaging in de novo factfinding, it returned the petition to USCIS “to further consider the visa petition and take action as warranted in this matter”.
The Statutory “Death Penalty”
As Xiong was the subject of, but not a party to, Jin’s petition, he couldn’t respond to the “extensive factual allegations and documentary evidence” his “wife” submitted to the BIA.
“Thus,” the BIA noted, Xiong “has not had notice or an opportunity to be heard.” But it continued:
If the beneficiary is found to have engaged in marriage fraud, any future visa petition filed on his behalf, whether filed by another family member or an employer, will be subject to the permanent bar under section 204(c) of the INA.
The referenced provision is a statutory “death penalty” that bars any future green card petitions filed on behalf of an alien previously found to have engaged in marriage fraud, meaning Xiong has every incentive to respond once Jin’s petition lands back at USCIS.
Smart Citizens, Foolish Choices
Entering into what purports to be a lifetime contract to love and support another person is, in the best of circumstances, a risky endeavor. There’s a reason “family law” exists and why divorce attorneys can make bank.
Trust me, however: There are plenty of otherwise smart U.S. citizens who are lulled into marital promises by self-serving aliens who are only seeking a green card, and who will abandon the marriage at the earliest opportunity.
I saw it so often at the INS that it was practically a trope, and even though the Center for Immigration Studies is a think-tank and doesn’t give legal advice, we receive plenty of calls from duped spouses who feel like suckers and are seeking some sort of recourse.
Matter of Jin is a case few could imagine: a U.S.-citizen wife who appeals a USCIS grant of a petition she herself filed based on fraud discovered after the fact. Thanks to the Board of Immigration Appeals, citizen spouses duped by bogus claims of love can clean up their mistakes and seek justice.