Marrying for love or love of a green card

by Atty. Emmanuel Samonte Tipon 

“Is it true that you must marry for love in order to get a green card?” asked a caller. “Who said so?” I asked. “Somebody told me that she heard it on television,” the caller responded. “You better ask the one who said it to show a provision of the Immigration and Nationality Act or a court decision saying so.” I told the caller.

Many people marry for love of a green card. According to the U.S. Court of Appeals “Marriages for green cards [may] be genuine.” U.S. v. Orellana-Blanco, 294 F.3d 1143 (9th Cir. 2002). In that case, the defendant, an alien, was charged with marriage fraud under 8 USC § 1325(c) and making a false statement on an immigration document under 18 USC § 1546(a). Reversing his conviction, the court held:

“That Orellana-Blanco married Boehm so that he could get a green card does not make the marriage a sham, though it is evidence that might support an inference of a sham marriage. We held in Tagalicud [U.S. v. Tagalicud, 84 F.3d 1180 (9th Cir. 1996)] that ‘motivations are at most evidence of intent, and do not themselves make the marriages shams.’ Just as marriages for money, hardly a novelty, or marriages among princes and princesses for reasons of state may be genuine and not sham marriages, so may marriages for green cards 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.”

In U.S. v. Tagalicud, 84 F.3d 1180 (9th Cir. 1996), involving Hawaiians who went to marry a brother and sister in Ilocoslovakia, and were subsequently prosecuted for marriage fraud, the court in reversing their conviction held: “Motivations are at most evidence of intent, and do not themselves make the marriages sham. Marriages for money or other ulterior gain are as ancient as mankind, yet may still be genuine, and marriage fraud maybe committed by one party to the marriage, or a person who arranged the marriage, yet the other spouse may genuinely intend to marry. The ulterior motive of financial benefit or immigration benefit does not make the marriage a fraud, though it may be evidence that the marriage is fraudulent.”

INTENT TO ESTABLISH A LIFE TOGETHER

The parties to an immigration-related marriage must establish not only that there is a legal marriage, that is, a marriage that complies with the legal requirements of the place where it is celebrated, but also that the marriage is bona fide or genuine and not for the purpose of procuring the alien’s entry into the U.S. Ilic Lee v. Mukasey, No. 06-3494 (9th Cir. 11/19/07). The immigration law forbids a marriage entered into for the purpose of evading a provision of the immigration laws. 8 USC § 1325(c). “A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, has not been recognized as enabling an alien spouse to obtain immigration benefits. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983).

The touchstone of a genuine marriage was prescribed by the U.S. Supreme Court: “The common understanding of a marriage, which Congress must have had in mind when it made provision for ‘alien spouses’ in the War Brides Act,  is that the two parties have undertaken to establish a life together and assume certain duties and obligations. Lutwak v. United States, 344 U.S. 604 (1953). This touchstone of intent to “establish a life together” at the time of marriage has been followed by lower court decisions. See, for example, Bark v. INS, 511 F.2d 1200 (9th Cir. 1975), another case from Hawaii.

EVIDENCE OF BONA FIDE MARRIAGE

Evidence of bona fides may include jointly-filed tax returns, shared bank accounts or credit cards, insurance policies covering both spouses, property leases or mortgages in both names, documents reflecting joint ownership of a car or other property, medical records showing the other spouse as the person to contact, telephone bills showing frequent communication between the spouses, and testimony or other evidence regarding the couple’s courtship, wedding ceremony, honeymoon, correspondences, and shared experiences. Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002).

The fact that the marriage was not successful or is no longer viable does not make it a sham. Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003). The genuineness of the marriage is not affected by the fact that the parties are no longer in love. Agyeman v. INS, 296 F.3d 871 (9th Cir. 2002).

CAUTION:  It is not advisable to tell immigration or consular authorities that you are marrying for love of a green card.


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com, and www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most witty, interesting, and informative radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at  www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)