ANG isang karaniwang paraan ng pagkuha ng green card ng dayuhang nasa loob ng U.S. ay sa pamamagitan ng family petition ng kanyang asawang U.S. citizen (USC). Dahil ang asawa ng USC ay tinuturing na immediate relative, ang dayuhan ay binibigyan ng pinakamataas na priyordidad sa ilalim ng Immigration Law –maaaring makakuha siya ng kanyang green card sa loob ng isang taon mula sa kanyang filing ng adjustment of status application. Ngunit dahil dito, maraming dayuhan at USC ang nagsasamantala at nag-aabuso ng probisyon ng Immigration Law sa pamamagitan ng sham marriage upang mabigyan ng immigration benefits o green card ang dayuhan.
Ang marriage fraud ay tinuturing na malubhang pagkakasala o serious offense.
Parehong mag-asawang USC at dayuhan ay pananagutin at maaaring maparusahan sa ilalim ng Immigration and Nationality Act (INA). Ayon sa INA, ang isang indibidwal na sadyang pumasok sa sham marriage para sa layuning iwasan o labagin ang immigration laws ay papatawan ng kulong ng hindi hihigit ng 5 taon, mumultahan ng hindi lalampas ng $250,000, o parehong kulong at multa. Ang parusang ito ay naaangkop sa USC at sa dayuhan. Maliban dito, ang dayuhang asawa ay nagkakaroon ng “Marriage Fraud Bar.” Sa “Marriage Fraud Bar,” walang subsequent petition na maaaring maaprubahan para sa dayuhang nabigyan o humiling na mabigyan ng immediate relative status bilang asawa ng USC kung ang kasal ay sham marriage ayon sa determinasyon Attorney General.
Sinasakop ng “Marriage Fraud Bar,” ang subsequent approval ng lahat ng immigrant petition. Tinutukoy nito hindi lamang mga family petition, ngunit pati na rin mga employment-based petition. Kaya’t kung nagkaroon ng determinasyon na ang dayuhan ay may dating sham marriage, kahit ang kanyang bagong kasal ay totoo at may anak na sila ng bagong asawang USC, hindi maaaring aprubahan ng USCIS ang immigrant petition ng bagong asawang USC. Kahit ang immigrant petition ay employment-based I-140 Immigrant Petition, ito rin ay hindi aaprubahan ng USCIS dahil sa “Marriage Fraud Bar.”
Ang “Marriage Fraud Bar” ay permanente at walang waiver of inadmissibility dito.
Walang ring legal remedy upang matanggal ang bar – kapag nagkaroon ng determinasyon na ang dayuhan ay nagkaroon ng sham marriage, hinding-hindi siya makakakuha ng green card mula sa family-based petition or employment-based petition.
One of the most common ways for an alien to get a green card in the U.S. is through family petition by a U.S. citizen spouse. Since spouses of U.S. citizens are considered as immediate relatives, they are given highest immigration priority under Immigration Law – if the alien is present in the U.S., the alien spouse can usually get his green card within one year of filing the adjustment of status application. Unfortunately, some aliens and U.S. citizens take advantage of provisions of Immigration Law and enter into a sham marriage for purposes of procuring immigration benefits – getting a green card for the alien spouse.
Marriage fraud is considered a serious offense and both the USC spouse and the alien spouse can be held liable and penalized under the Immigration and Nationality Act (INA). Under the INA, an individual who knowingly enters into a marriage for the purpose of evading immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both. This penalty of imprisonment, fine, or both, is applicable for both spouses. Aside from this, the alien spouse is subject to the “Marriage Fraud Bar.” Under the INA, no petition shall be approved for an alien who has been accorded or sought to be accorded, an immediate relative status as the spouse of a USC by reason of a marriage that is determined by the Attorney General to have been entered into for the purpose of evading immigration laws.
Under the “Marriage Fraud Bar,” an alien who was found to have engaged in or attempted to engage in sham marriage or a marriage entered into for the purpose of obtaining immigration benefits will be barred from having a subsequent immigrant petition approved on his behalf. This subsequent petition refers to all family petitions and employment-based petitions. Hence, if the alien was found to have previously entered into a sham marriage, a subsequent petition by another USC spouse, even if bona fide as evidenced by children born of the marriage, will not be approved by USCIS. Similarly, even if an employer files an I-140 Immigrant Petition for the alien employee, the same will be denied on the basis of “Marriage Fraud Bar.”
“Marriage Fraud Bar” is permanent and not subject to waiver of inadmissibility. There is no legal remedy to remove the bar – once the alien is found to have engaged in marriage fraud, the alien will never be able to get a green card through marriage, other family members, or through employment.
ATTY. RHEA SAMSON is the principal of SAMSON LAW FIRM, P.C. She has been a member of the State Bar of California for over 15 years and the Integrated Bar of the Philippines for over 20 years. Atty. Samson received her Legal Management degree from the Ateneo de Manila University and her Juris Doctor degree from the Ateneo Law School. She was a Professor for over 10 years, teaching Obligations and Contracts, Labor Laws and Social Legislation and Taxation Law. Atty Samson is the author of The Law on Obligations and Contracts (2016), Working with Labor Laws-Revised Edition (2014) and Working with Labor Laws (2005).
SAMSON LAW FIRM, P.C., 3580 Wilshire Boulevard, Suite 1710, Los Angeles, CA 90010; Phone: (213) 274-4561; Email: [email protected]