Marriage Fraud Bill: An Argument for a Targeted Approach to Immigration Reform

By David North on December 15, 2009

Most of the conversation about immigration policy reform these days involves the word "comprehensive", as if this is the best, if not the only, way to tackle the issue. (The latest attempt at a comprehensive bill will be introduced today.)

I argue that there also is utility in a more targeted approach – the use of a rifle rather than a blunderbuss – and that an excellent example of this is the Immigration Marriage Fraud Amendments of 1986 (Public Law 99-639).

This bill came to pass as a result of the committee hearing process, which is the way the Congress usually does its business. Another targeted approach, through the use of a floor amendment, will be discussed in a future blog.

One of the easiest and quickest ways for an alien to secure permanent admission to the U.S. is has always been by marrying a citizen or a green card holder. As a result of the laws permitting – nay, encouraging – such marriages, it is an invitation to fraud, an invitation that the U.S. Senate Subcommittee on Immigration and Refugee Policy (of the Committee on the Judiciary) wanted to discourage.

The year the amendments were introduced was 1985 and the subcommittee chair was Sen. Alan Simpson (R-WY).

The upshot of the new legislation was that an alien and a citizen had to be married for two years before the alien could apply for the green card; in the first two years of a new marriage, the alien would be granted a conditional visa, which allowed work in the U.S. The conditional visa could be converted to the green card if the marriage, in fact, lasted. Prior to the amendments a brand-new marriage was all that was needed for the green card.

One needs to bear in mind that there are two kinds of immigration marriage fraud; the one-innocent cases, where a U.S. resident has been wooed by an alien for the sole purpose of securing immigrant status, with the American being dumped as soon as the green card was granted. In the other category, the no-innocent cases, both the American and the alien enter the marriage knowing it was phony, with the American usually receiving money for the transaction. This distinction was stressed in the marriage fraud hearing.

Not everyone appreciates that the management of a legislative hearing is an art form, but I have participated in, or observed, enough of them to recognize this fact.

The one-day Senate hearing that led to the passage of the amendments was a little jewel. (Full disclosure, I was an expert witness that day and supported the bill.) A year before the July 26, 1985, event Sen. Simpson had given management of the forthcoming hearing to an experienced Foreign Service Officer, John R. Ratigan, who had been detailed from the State Department to the subcommittee staff. He spent the year pulling together the elements of the hearing.

Ratigan found several heart-rending one-innocent cases, and persuaded the victims to come to the Senate and tell their very sad, very personal stories. He had other witnesses telling how the no-innocent fraud scheme worked. The witnesses and Sen. Simpson convinced the ranking Democrat on the subcommittee, the late Senator Ted Kennedy (D-MA), that action was needed on this narrow matter, and the bill subsequently moved through both houses and was signed into law by President Reagan.

The modification of the immigration law – the two-year wait – was both straightforward and effective. The waiting period was helpful with the one-innocent cases in that it is difficult to pretend to love someone for that long. It was effective with the no-innocent cases in the sense that a U.S. resident could have no more than one fraudulent marriage every two years, and meanwhile both partners were locked in a marriage and could not wed someone else.

Further, the new rules, and the attendant press coverage of them, must have played a generally dampening effect on immigration-related marriage fraud.

The numbers are impressive. In the last fiscal year before the amendments went into effect, in FY 86, there were 175,981 visa-causing marriages; in FY 90, the last year before the follow-on effects of the massive IRCA legalization took effect, there were 152,926 visa-creating marriages. The percentage of spousal visas to all permanent admissions fell from 29.9 percent in FY 86 to 23.3 percent in FY 90, dealing in both years with non-IRCA-legalization issuances of green cards. (The numbers were calculated from Table 4 of the 1990 Statistical Yearbook of the Immigration and Naturalization Service.)

Visa-creating marriage fraud presumably continues, but this targeted bill makes it easier to detect the fraud and harder to perpetuate it.