If accused of marriage fraud, can I still get a visa?
Dear Mrs Walker-Huntington,
I APPLIED for an immigrant visa back in 2010 and I was denied one on the grounds that my marriage was fictious. My wife and I have since separated, but we are not divorced.
I would like to apply for a non-immigrant visa so I can visit relatives and friends. Do you think I will get through, or will I have to get divorced first?
Thanks in advance
OF
Dear OF,
When a couple presents themselves to US immigration for an immigrant visa, the presumption is that their marriage was entered into only for immigration benefits, and the burden is on the couple to prove the validity of their marriage. The underlying standard is the intent of the parties at the time they were married. The US government does not know the content of the hearts of the people who file such applications, and they look at objective tests to determine whether the marriage is real or not.
If the couple are both in the United States and present themselves as married, US Citizenship & Immigration Services looks to see if they co-mingle their assets and their liabilities, if they can answer questions about each other, their lives together and their families, etc. If one party lives outside of the United States during the immigrant visa interview, the intending immigrant must show evidence of the relationship also. For example, how many times has the US person visited? Do they have photos of their time together, evidence of frequent communication, evidence of any money sent either way, and if possible, does the couple own anything together, etc? The intending immigrant must also be prepared to answer questions about courtship, marriage, etc.
This is a process that must be treated with seriousness because as in your case, if the consular officer is not convinced that the marriage is real, it will have lifelong consequences for the intending immigrant. There should have been an opportunity given to you and your wife to address any concerns of the consular officer and to rebut any allegations of marriage fraud. When this happens, it must be addressed.
In a situation such as yours, a finding of a fraudulent marriage will have bearing on any future visa applications – including applying for a non-immigrant visa. This is so whether you are married or now divorced. You will need a waiver before the United States issues a non-immigrant or immigrant visa.
Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a diversity and inclusion consultant, mediator and former special magistrate and hearing officer in Broward County, Florida. info@walkerhuntington.com