IF a person is ever caught in a fi xed marriage (married solely to obtain immigration benefits), the consequences (or punishment) could be severe. A fixed marriage finding by the USCIS could result in a lifetime ban from ever having any other petition approved. For example, if a person was caught in a fixed marriage, but later divorced that American and married a different US citizen for love, the second US citizen spouse would not be able to petition the person. Similarly, if a person is caught in a fixed marriage, and years later, their US-born child turns 21, the child also could not petition them.
However, there have been many cases where the marriage was real, but for one reason or another (perhaps miscommunication, misunderstanding, confusion, lack of documents), the USCIS concludes the marriage was fixed. If you are in a real marriage, but your case was denied because USCIS incorrectly concluded your marriage was fixed, you should fight that decision. (Of course, if the marriage WAS fixed, then there really would be nothing to fight for.)
The laws concerning fixed marriages could be very helpful to people finding themselves being wrongly accused of entering into a fixed marriage. The key to the “viability of the marriage” (or whether it was real) is whether the marriage was valid at its inception, even if the couple is now separated and the marriage is no longer viable. This means if you walked down the aisle on your wedding day with “love in your heart,” then your marriage would be valid even if it soon deteriorates. Think about the 72–day marriage between Kim Kardashian and Kris Humphries. That marriage, although short in length, was valid at its inception and if Kim was an alien being petitioned by Kris, it would still have been considered a valid or viable marriage.
As long as the marriage was valid at its inception, and the couple is not divorced yet, the person’s adjustment of status could still be approved, even though the marriage may no longer be viable at the time of the adjustment application or interview. So long as the marriage was viable at its inception (and can be proved and documented as such), a person would still be entitled to pursue their green card.
Courts have recognized that “marriages for green cards [may 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.” Therefore, even if one of the reasons you get married is to obtain a green card, it does not necessarily mean the marriage is fixed, as long as on your wedding day, you intended to have a life together with your spouse.
In another case, involving an elderly couple, they never consummated their marriage. The US citizen married because he needed a housekeeper and was sick, and his wife took care of him. He paid for the food, and she paid for everything else. The BIA ruled that “The reasons for the marriage appear to be far sounder than exist for most marriages.”
I know so much confusion can take place at an interview because the person is extremely nervous and the couple may give conflicting answers, or the questions are confusing. I recall one case that was denied, where the officer asked the wife if her husband had any ailments or sickness. She said “no”. The officer separately asked the husband whether he had any injuries. He replied he injured his knee. The officer concluded the marriage was fixed because of this type of inconsistent answer. But there’s a big difference between sickness and injury. So, the officer created the confusion and discrepancy.
Also, if you are called back for several interviews, or if DHS visits your home early in the morning or interviews your neighbors, that shows your case is in trouble, and you’re likely under suspicion and investigation.
As you can see, it’s sometimes like walking through a minefield in connection with marriages, especially if they were viable at the inception but then fell apart. If this type of situation applies to you, or you’re being called back for a “second” interview, you may want to seek the advice of an attorney who can hopefully salvage your case, by proving the marriage was not fixed – only broken.
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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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