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In the 2009 film The Proposal, a Canadian immigrant to the United States has a denial of visa renewal, and gets married solely to avoid deportation. The immigration agent suspects the marriage is fraudulent, and much of the movie centers around the activities to "prove" the marriage is real and thereby avoid deportation for her and felony charges for her "husband" for fraudulent marriage. Many hijinks ensue.

I realized recently I have no idea how reality-based any of these underlying premises are, and a check online didn't quickly reveal any discussion of the legal factors that I could find. So I'm curious:

  1. Are there in fact felony charges that could be brought in the USA on the basis of a "fraudulent marriage" entered into only to avoid deportation? If so, what factors would make the marriage fraudulent?

  2. If there are such laws, are they really enforced? Or is it something like the laws against adultery in the seventeen states which still have them (where breaking the rules is socially frowned on but usually not prosecuted criminally)?

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  • I removed the spoiler as it isn't relevant to the question.
    – JBentley
    Mar 17 at 11:26

2 Answers 2

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I realized recently I have no idea how reality-based any of these underlying premises are

Unless the plot is staged before November 10, 1986, such effort would have been in vain. This is because petitions for a US Citizen/LPR spouse may not be approved if the marriage happened when the spouse was under removal or deportation proceeding.

8 CFR 204.2

Marriage during proceedings—general prohibition against approval of visa petition.
A visa petition filed on behalf of an alien by a United States citizen or a lawful permanent resident spouse shall not be approved if the marriage creating the relationship occurred on or after November 10, 1986, and while the alien was in exclusion, deportation, or removal proceedings, or judicial proceedings relating thereto.

There may be exemptionn if very strict requirements are filled.

(A) Request for exemption. No application or fee is required to request an exemption. The request must be made in writing and submitted with the Form I–130. The request must state the reason for seeking the exemption and must be supported by documentary evidence establishing eligibility for the exemption.

(B) Evidence to establish eligibility for the bona fide marriage exemption. The petitioner should submit documents which establish that the marriage was entered into in good faith and not entered into for the purpose of procuring the alien's entry as an immigrant. The types of documents the petitioner may submit include, but are not limited to:

(1) Documentation showing joint ownership of property;

(2) Lease showing joint tenancy of a common residence;

(3) Documentation showing commingling of financial resources;

(4) Birth certificate(s) of child(ren) born to the petitioner and beneficiary;

(5) Affidavits of third parties having knowledge of the bona fides of the marital relationship (Such persons may be required to testify before an immigration officer as to the information contained in the affidavit. Affidavits must be sworn to or affirmed by people who have personal knowledge of the marital relationship. Each affidavit must contain the full name and address, date and place of birth of the person making the affidavit and his or her relationship to the spouses, if any. The affidavit must contain complete information and details explaining how the person acquired his or her knowledge of the marriage. Affidavits should be supported, if possible, by one or more types of documentary evidence listed in this paragraph); or

(6) Any other documentation which is relevant to establish that the marriage was not entered into in order to evade the immigration laws of the United States


If so, what factors would make the marriage fraudulent?

What the United States Citizenship and Immigration Services wants to avoid at all costs is marriage for papers (sham marriage). Some people from a third country will marry with a US Citizen just for the papers.

That classification is usually based on common life together, but can indeed be based on many criteria.

This is the reason a married immigrant only gets a conditional 2-year Permanent Resident status. Status, which can only be renewed for a full 10-year status at the end of the conditional period if and only if the marriage is still continued.

Are there in fact felony charges that could be brought in the USA on the basis of a "fraudulent marriage" entered into only to avoid deportation?

8 USC 1325

(c) Marriage fraud Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

If there are such laws, are they really enforced?

Absolutely, sham marriages rings are busted quite frequently.

Even individual marriages can lead to convictions

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  • Great answer, thank you. The first sentence confused me since it wasn't clear which effort would be in vain but I think I've got it now. (You may want to edit that sentence.)
    – Wildcard
    Mar 18 at 1:44
  • 1
    "Unless the plot is staged before November 10, 1986, such effort would have been in vain. ... There may be exemptionn if very strict requirements are filled." But that means it's not in vain, right? -- They may be precisely trying to prove the genuineness of their marriage for the exemption. Also, it's not clear to me from the question whether removal proceedings has been initiated by the time they married. (I didn't watch the movie.) Them being under investigation does not mean that removal proceedings has been initiated.
    – user102008
    Mar 25 at 16:35
  • "which can only be renewed for a full 10-year status at the end of the conditional period if and only if the marriage is still continued." If they are divorced, the conditional permanent resident can do Removal of Conditions by themself on the basis of divorce.
    – user102008
    Mar 25 at 16:35
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Another answer is correct, but doesn't get to the point as quickly and directly as this one does.

Are there in fact felony charges that could be brought in the USA on the basis of a "fraudulent marriage" entered into only to avoid deportation?

Yes. As the other answer points out, technically, it wouldn't come up in these exact circumstances in the last few decades. But yes, this is potentially an issue in almost all marriage based visa cases. Very similar cases where the non-citizen spouse is not under removal or deportation proceedings but is at risk of being in them, are common.

If so, what factors would make the marriage fraudulent?

If the marriage is really a sham and for immigration purposes only.

Definition of Marriage Fraud in U.S. Immigration Law

A sham marriage is one that is entered into in order to get around ("evade") U.S. immigration laws. (See I.N.A. Section 204(c).)

For a marriage to be valid under U.S. law, it is not enough that the couple had a real marriage ceremony and got all the right governmental stamps on their marriage certificate. They have to intend to live in a real marital relationship, namely to establish a life together, following the marriage ceremony—and they must prove their intention through their actions. If the couple doesn't intend to establish a life together, their marriage is a sham.

Another way in which an immigration application based on marriage will be considered fraudulent is if it isn't legally valid. Say, for example, that you are already married to another person, and were never able to get a legal divorce. Even if you truly love your new spouse, this current marriage is invalid. Applying for U.S. lawful permanent residence (a green card) on the basis of an invalid marriage is, indeed, considered fraudulent. Even if you get away with it in the short term, your green card and eventual U.S. citizenship could be taken away on the basis of this fraud.

What the U.S. Government Expects a Real Marriage to Look Like

What is the U.S. government's view of a typical marriage? The statutes and regulations don't go into detail on this, so the following comes from a combination of court cases and attorneys' experiences. You certainly are not required to match every description on this list—but the fewer you match, the greater the likelihood that you will face lots of questions and close scrutiny of your application.

The "normal" married couple has a fair amount in common. They share a language and religion. They live together and do things together, like take vacations, celebrate important events, birthdays, and holidays, join clubs or gyms, and have sex and children.

Typical couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses. They celebrate each others' birthdays and meet each others' families.

And they might even have arguments and marital problems. Ideally, they will visit a counselor or other trusted adviser to help work these out (and these visits themselves can become evidence of a valid marriage).

High Level of U.S. Government Suspicion Regarding Marriage Fraud

Detecting marriage frauds is a top priority for U.S. Citizenship and Immigration Services (USCIS) and its affiliated agency, Immigration and Customs Enforcement (ICE). Based on a decades-old survey, government officers still sometimes say that up to 30% of marriages between aliens and U.S. citizens are suspect. That statistic has been shown to be deeply flawed, but its legacy lives on.

(Source)

It goes mostly to whether the couple live their lives as a married couple.

One immigration lawyer online estimated that as many as 10% of marriage visas in the U.S. involve marriage fraud, at the high end of the range of what is a reasonable estimate.

Teaching people what they need to do to avoid having marriage visa applications denied, to avoid having marriage visa applications revoked, and to avoid having citizenship applications of people with marriage visas denied, is a whole cottage industry in the United States.

For more background a law review article on the subject of immigration marriage fraud in the U.S. can be found here.

If there are such laws, are they really enforced?

Yes. Frequently. In 2005, for example, 8% of marriage visa applications were denied by U.S. immigration officials for marriage fraud. See, e.g., a 2019 press release about a marriage fraud prosecution, and another 2019 press release about another marriage fraud prosecution.

Or is it something like the laws against adultery in the seventeen states which still have them (where breaking the rules is socially frowned on but usually not prosecuted criminally)?

It is not. Adultery is neither a requirement for a sham marriage, nor sufficient grounds, standing alone, for a sham marriage.

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