The most common type of family-based immigration in the United States is a marriage-based one. In some cases, your foreign-born spouse may have some issues with his or her prior marriage. One of the most challenging issues is a marriage fraud bar.
The marriage fraud bar in U.S. immigration law comes from the Immigration and Nationality Act, section 204(c). This section states that USCIS will not approve any immigration petition if (1) the applicant previously tried to get immigration benefits through a fraudulent marriage or (2) the government found that the applicant tried to enter into a fraudulent marriage. This bar means you cannot obtain future immigration benefits in the U.S. if you were caught in a false marriage or trying to enter into one.
To learn whether the U.S. government found fraud in a past immigration application, you should get a copy of the denial of your Form I-485 or Form I-130 application. If you do not have a copy of this notice, you may request a copy of your USCIS immigration file using a Freedom of Information Act Request (FOIA). FOIA provides mandatory access to your own immigration file with USCIS. To request these records, file Form G-639. The application and instructions are available on USCIS's website. An immigration attorney or other agency can help you with this request.
If phrases like "fraudulent," "sham," or "entered into for the sole purpose of circumscribing immigration law" used in reference to your marriage are in that denial, the immigration agency decided there was fraud in your application.
If you have previously entered or tried to enter a fraudulent marriage, you cannot get a green card. It does not matter how valid your current marriage to a U.S. citizen or legal permanent resident (LPR) may be; by law, USCIS must to look at your prior marriage that was found fraudulent.
If you think USCIS was wrong, you can try to convince them otherwise. It may be best to consult an immigration attorney regarding the best strategy for doing so. You should also gather evidence to show that your past marriage or marriage attempt was not fraudulent. Here are some examples of good evidence:
(1) A declaration/ affidavit from your prior or current spouse stating that your marriage is or was real.
(2) Direct evidence contradicting the immigration agency's reasons for finding fraud.
(3) Personal affidavit or affidavits from third parties.
(4) Written counterargument to any USCIS findings of inconsistencies.
Written by Lydia Hartlaub