By Abbie Carver
Although there is a general lack of statistics regarding sham marriages within the United States, Americans are routinely concerned about the presence (or even mere possibility) of its occurrence. Concerns vary, including national security threats, damage to the integrity of the U.S. immigration system, and the broken hearts of Americans who naively enter into false marriages. This post will detail the laws surrounding marriage and immigration within the United States and compare them to the legal requirements for spousal immigration within the UK
Marriage and Immigration within the United States
In the United States, both American citizens and legal permanent residents (“LPR” or “green card holders”) are eligible to bring a foreign spouse or fiancé to live in the United States. The American citizen or LPR wishing to bring a spouse/fiancé is known as the “petitioner.” Requirements for citizen and LPR petitioners differ — citizen petitioners encounter a much easier and faster process. Foreign spouses of U.S. citizen (“USC”) petitioners are considered “immediate relatives” and are not subject to numerical limits as are most other immigrant categories in American immigration law. These “immediate relatives” must only wait for the processing time that it takes USCIS to process a visa — usually only a few months. In addition, the USC petitioner must provide an “affidavit of support,” in which the petitioner guarantees to accept financial responsibility for the spouse who is coming to the united states to live permanently. In contrast, the foreign spouse of an LPR is subject to yearly quotas in addition to the requirement of an affidavit of support.
For both USC and LPR petitioners, the marriage must be 1) legally valid; and 2) factually genuine — meaning that at the inception of the marriage, the parties intended to establish a life together. Without either a legally valid or factually genuine marriage, the marriage is considered “fraudulent” and is a ground for inadmissibility and removal of the foreign spouse. In order to discourage fraudulent marriages, the Immigration and Nationality Act (“the Act”) imposes a two-year probation period on the foreign spouse upon admission; during this time, if the Department of Homeland Security (“DHS”) determines that a marriage was fraudulent (say, for example, a fee was paid or the spouse entered into the marriage for immigration purposes), or if the couple divorces, the foreign spouses loses status and is immediately put into removal proceedings. The Act also requires the couple to remove the condition by joint petition and personal interview within 90 days of the end of the two-year probation period.
If a couple has not yet married, another option is for the petitioner to file for a “fiancé” visa, which allows the foreign fiancé to enter the United States legally for 90 days so that a marriage ceremony may take place. Once the couple marries, the spouse can apply for permanent residence and remain in the U.S. while applying. In order to combat sham marriages, U.S. Citizenship and Immigration Services (“USCIS”) requires that the petitioner must be a U.S. citizen (not an LPR), the couple intend to marry within 90 days of the foreign fiancé entering the United States, and the couple must have met each other in person within two years before filing.
Marriage and Immigration in the UK
In the UK, a “UK marriage visa” or “spouse visa” allows a foreign spouse to immigrate to the UK permanently. Similar to the United States, if the couple has been together for less than four years, the foreign spouse is granted a marriage visa for a probation period of two years. Also similar to the United States, the couple must intend to live together permanently and the petitioner must possess sufficient funds to pay for the foreign spouse’s living expenses.
Studies in the UK reveal that the prevalence of sham marriages increased by 840 percent from 2010 to 2014. Chairman of the Home Affairs Select Committee, Keith Vaz, reports that “[t]here is an industry of deceit in the UK which uses sham Marriages to circumvent immigration control.”
In March 2015, the UK instituted a new scheme to tackle sham marriages and civil partnerships under the Immigration Act 2014. Under the Act, any proposed marriages in which someone could gain an immigration advantage from the marriage are first referred by registration officials to the Home Office. If the Home Officer suspects a sham, they can extend the notice period to 70 days to investigate the genuineness of the relationship. In April 2015, registration officials referred 253 couples to the Home Office — 160 proposed marriages were considered fraudulent and 99 other marriages were undermined because the couple did not “co-operate” with the Home Office investigation.
At this point in time, the United States does not have a similar process. It is unclear whether thorough investigations prior to marriage would be either desirable or effective in preventing sham marriages in the United States.
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 ICE leading nationwide campaign to stop marriage fraud, U.S. Immigration & Customs Enforcement (April 2, 2014), https://www.ice.gov/news/releases/top-story-ice-leading-nationwide-campaign-stop-marriage-fraud.
 Bringing Spouses to Live in the United States as Permanent Residents, USCIS, https://www.uscis.gov/family/family-us-citizens/spouse/bringing-spouses-live-united-states-permanent-residents (last updated Oct. 27, 2015).
 See id.
 See id.
 Immigration and Nationality Act (INA) § 201(b)(2)(A)(i), 8 U.S.C. § 1151 (1991).
 See supra, note 1.
 Affadavit of Support, USCIS, https://www.uscis.gov/green-card/green-card-processes-and-procedures/affidavit-support (last updated Aug. 29, 2013); INA § 212(a)(4)(C).
 INA § 203(a)(2).
 Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982).
 See e.g. INA § 216.
 INA § 216(b)(1). It is important to note that important exceptions apply. For example, DHS may grant a “hardship waiver” if the foreign spouse married in good faith, experienced battery or extreme cruelty in the marriage, or if removal would result in extreme hardship to the foreign spouse’s citizen children. § 216(c)(4).
 INA § 216.
 How do I help my fiancé(e) become a U.S. permanent resident? U.S. Citizenship & Immigration Services (Oct. 2013), https://www.uscis.gov/sites/default/files/USCIS/Resources/A2en.pdf.
 Marriages and civil partnerships in the UK, GOV.UK, https://www.gov.uk/marriages-civil-partnerships/foreign-national (last updated Oct. 25, 2016).
 Id. If the couple has been together for four years or more outside of the UK, the spouse will be granted permanent residence without having to live in the UK for two years.
 Marriage Visa, UK Immigration, http://www.ukimmigration.com/family/uk_spouse_visa.htm (last visited Jan. 21, 2017).
 Laura Mowat, Sham marriages have increased by almost 850% and ‘authorities are overwhelmed’ warns MP, Express UK (Feb. 28, 2016), http://www.express.co.uk/news/uk/648025/Sham-marriages-increased-by-almost-850-and-authorities-are-overwhelmed-warns-MP.