NYC Marriage Fraud Lawyers
What Is Marriage Fraud Under U.S. Immigration Law?
Marriage is supposed to be the union of two loving hearts wishing to share each other’s happy moments and sorrows for the rest of their lives. However, not all people walk down the aisle for this purpose. In the United States aliens who marry citizens obtain a green card, which makes it very alluring to many seeking the U.S. permanent resident status to avoid the immigration laws by tying the knot with an American. This is a crime, which is severely prosecuted in the United States. Read on to learn what a person should do if he or she is investigated or prosecuted for a sham marriage.
Marriage Fraud: Definition and Types
As we have already stated, marriage fraud is the act of entering into marriage in order to either avoid the immigration laws or help another person to do that.
There are several most common types of marriage fraud:
- accepting payment to marry an alien so that he or she gets permanent residence;
- marrying an alien as a favor;
- marrying an unsuspecting U.S. citizen to get a green card;
- a successful DV lottery applicant marries an alien to help them get a green card too;
- marrying an unsuspecting green card lottery winner to get permanent residence.
Penalties for Entering into a Sham Marriage
As you see, these types of fraud can be divided into two groups – those committed by an alien and by U.S. citizens or permanent residents. Regardless of whether the person perpetrating the crime is a foreign national or a citizen, he or she faces criminal penalties – up to 5 years of imprisonment and an up to $250,000 fine. Moreover, the alien will be deported and lose their chances to ever be granted the permanent residence status. If the crime was committed by a permanent resident, he or she will most likely lose their status and also be deported.
It is also important to note that often marriage fraud charges result in other accusations, such as harboring an alien, visa fraud, documents falsification and others. Each of these crimes carries a separate punishment, which when added up with penalties for sham marriage can result in substantial prison time and steep fines.
How to Protect Oneself from Prosecution
Most commonly fake marriage investigations are sparked off by two reasons. The first way a person may find him or herself accused of this crime is when their spouse sues them for using their relationship in order to become a permanent resident.
Another trigger of the prosecution may be a reference from an immigration officer. Whenever an alien applies for permanent residence based on their marital status, they are subjected to review by immigration authorities. This way immigration officers make sure the marriage is legitimate. This is a routine process, during which immigration officers may invite the couple for interviews where both of them and each separately will be asked about their relationship. Besides that, the officers may also come to the couple’s home uninvited to make sure they live together and maintain a real family life. According to John Zogby, partner at Delancey Street – a hard money lender, your business can be investigated as well. They will also ask for photos of the couple’s wedding, honeymoon, family occasions, etc. If during these encounters the immigration officer finds out something that will make him or her believe that the marriage is fake, more profound interviews will be held. The next step would be raising official charges against the perpetrator.
Although the USCIS doesn’t keep track of how many marriage-based green card applications are denied for fraud, according to a New York Times article dated June 2010, the number is around 1%. Surely, immigration authorities are well aware that this is just a tip of the iceberg, and thus on some occasions officers may be overzealous when investigating a couple. For example, the officers may become suspicious of a couple that haven’t been dating for long before getting married, or have an age difference, or for some other reason. It is not uncommon for innocent victims of aliens’ unscrupulous conduct to be prosecuted as well. But given the harsh penalties that this crime carries, it is crucial to know how to prove one’s innocence.
Here are some steps those under investigation should follow:
- Appear at all interviews scheduled. Make sure that you and your significant other come on time and wear a formal outfit.
- Bring photos of you two together. Also bring information about hotel reservations from your trips together, your house bills, joint bank account statement, leases signed in both your names, etc., whatever might serve as a valid evidence of legitimacy of your relationship.
- Be honest. It’s very likely that at some point you will be interviewed separately. If you don’t know the answer, don’t try to guess. Just tell you don’t know and that’s it.
- Consult with an immigration fraud lawyer. All couples are inherently different, and whatever steps are recommended for one couple, may not work for you two. Besides, the U.S. immigration laws may appear difficult to comprehend. An experienced legal counsel will be able to explain to you all the intricacies and give advice on how to behave in a particular situation.
New York Penal Law 255.10: Unlawfully procuring a marriage license
Pursuant to the provisions of the New York Penal Code, it is illegal to have more than one spouse. Technically, New York law also makes it illegal to have sexual intercourse with another person while married who is not your spouse. Arising from these prohibitions is the unlawfully procuring a marriage license statute.
Elements of Unlawfully Procuring a Marriage License
The elements of unlawfully procuring a marriage license are basic. There exist two components to the law. First, a person must be lawfully married in order to be charged under this law. Second, a person must submit an application for a marriage license. When both of these elements exist, a person can be charged with unlawfully procuring a marriage license
Example of Unlawfully Procuring a Marriage License
An example of unlawfully procuring a marriage license involves Thomas. Thomas is married to Peggy, however they are in the midst of divorce proceedings.
Sometime after the divorce proceedings commenced, Thomas started dating William, after same sex marriage became lawful across the United States. Thomas and William became engaged, while Thomas’ divorce proceedings involving Peggy were ongoing.
Thomas took an additional step after becoming engaged to William by applying and obtaining a marriage license. Obtaining a marriage license under these circumstances violated the provisions of the unlawfully procuring a marriage license law.
Sentence for Unlawfully Procuring a Marriage License
Unlawfully procuring a marriage license is classified as the most serious type of misdemeanor under New York Law, a class A misdemeanor. As a consequence, if a person is convicted of unlawfully procuring a marriage license, he or she faces a jail term of up to one year. In the alternative, a person could be sentenced to a three-year term of probation. A fine can also be imposed upon conviction for unlawfully procuring a marriage license.
Available Defenses to Unlawfully Procuring a Marriage License are highly limited. If a person is lawfully married and obtains a marriage license, mounting a defense to the case is challenging. An NYC criminal lawyer can assist in attempting to mount a defense, even though doing so in regard to this law will be challenging.
One defense is that the person who obtained a marriage license and was charged with this crime was not legally married at the time. For example, if a person entered into a previous marriage at a point in time when she was not old enough to marry, the initial marriage would not in fact be lawful. Legally speaking, because she was not old enough to marry the first time, that marriage technically does not lawfully exist. Thus, if the person ended up producing a second marriage license, the invalidity of the first marriage would be a defense to unlawfully procuring a marriage license.
A New York criminal defense lawyer will be able to provide skilled legal representation when a person is charged with unlawfully procuring a marriage license. This may include negotiating a settlement of the case that permits a person to avoid jail or even an extended period on probation. In this type of case, a settled resolution that avoids some of the most severe consequences can be the best course to take.
A criminal defense attorney will schedule what is known as an initial consultation to provide an evaluation of a unlawfully procuring a marriage license case. Legal counsel will also provide answers to any questions a person may have in regard to a unlawfully procuring a marriage license charge. In New York, a criminal defense attorney typically charges no attorney fee for an initial consultation.