Earlier this spring, the incredible story of Liana Kristina Barrientos was all over the news. According to numerous sources, Ms. Barrientos had married at least ten men over an eleven-year period, claiming on each marriage application to have never been married before, and without obtaining divorces from the prior husbands (well, at least some of them). News sources openly speculated that the marriages were entered into for immigration benefits, pointing out the criminal investigation about Ms. Barrientos’s polygamy had been initiated following a tip from investigators from the Department of Homeland Security (DHS), which administers immigration benefits through US Citizenship & Immigration Services (USCIS) and investigates and prosecutes immigration law violations through Immigration & Customs Enforcement (ICE). Ms. Barrientos, a native of the Dominican Republic and a US citizen, allegedly married the men in order for them to obtain Green Cards. The men were identified only by their initials and their countries of origin.
There has been, predictably, an outcry from the public and some calls for tighter immigration controls; however, the fact that this story is so outlandish—even if true—points more to the rarity of immigration fraud than to its pervasiveness. It also suggests that the fraud and detection efforts of ICE in fact have worked to identify those instances of marriage fraud for immigration purposes.
Congress passed the Immigration Marriage Fraud Amendments of 1986 (IMFA) amid a similar outcry. The congressional record pointed to a survey of cases by legacy Immigration & Naturalization Services (INS) that purported to show that thirty percent of marriage-based Green Card applications involved fraudulent marriages. Since marriage to US citizens is often the simplest and most direct way for an individual to obtain permanent residence, there was an understandable concern that some people would abuse the system.
There was a concern that individuals who would not otherwise be eligible for permanent residence would marry US citizens to qualify, and that unscrupulous US citizens would charge would be immigrants money to marry and sponsor them for Green Cards. It was not long before the survey’s results were called into question by experts, but—much like the few isolated instances of welfare fraud led to a massive overhaul of the public benefits system a decade later—the few documented instances of immigration marriage fraud ushered in a new era with a set of more onerous procedures that US citizens and their spouses must go through to get—and keep—Green Cards.
For one thing, IMFA introduced stricter criminal and civil penalties for marriage fraud—up to five years in prison and fines up to $250,000. In addition, IMFA introduced a new concept in permanent residence—the conditional resident. Under the new law, any immigrant whose marriage to the sponsoring US citizen is less than two years old at the time that the initial Green Card is approved will be considered a conditional resident. The law requires that within ninety days of the two-year anniversary of having the conditional Green Card, the conditional resident and their spouse must file a petition to remove the conditions. This procedure (filed on Form I-751) ostensibly gives USCIS an opportunity to verify that the original marriage was entered into in good faith and that the parties remain together in a bona fide marital relationship.
In practice, the I-751 procedure is akin to having to file the original Green Card application all over again. For couples that meet a traditional definition of married couple—joint finances and residence, biological children, etc. (and who hold onto copious documentation of the same over the years)—the I-751 process can be burdensome but relatively straightforward; however, when you introduce less traditional elements—independent finances, couples that live apart, e.g., for career reasons, or who are raising children that are not biologically related to both spouses—there can be additional difficulties. These difficulties stem from the unfortunate presumption of fraud that IMFA introduced into the law and culture of the immigration authorities.
Another difficulty introduced by IMFA is the bar on other forms of relief for individuals holding conditional resident status or who are found to have committed marriage fraud. The law prohibits foreign nationals from adjusting status in the US while holding conditional resident status, in the event, say, that the marriage fell apart but the conditional resident has since married another US citizen or is otherwise eligible for an immigrant visa. (The Board of Immigration Appeals, however, has held, in Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991), that the law does not bar a new adjustment should the conditional resident status be lawfully terminated.)
For individuals who have been found to have entered into a marriage to evade immigration laws, there is an even more onerous penalty—not only can they not adjust their status, they are ineligible to have any petition approved on their behalf—even if not based on marriage to another US citizen but rather based on work or another family relationship. This bar does require that the Immigration authorities prove the marriage fraud by clear and convincing evidence, a standard not automatically met in the case of a couple that is simply non-traditional or without the usual documentary evidence of joint habitation that USCIS tends to expect.
Of course, concerns about fraud in the immigration process relate not just to marriage-based cases, and in the last several years the authorities have stepped up their efforts to uncover fraud under the DHS’s Office of Fraud Detection and National Security. It has become increasingly common for USCIS officers to scour the Internet and social media for derogatory information about immigrants and their US citizen spouses alike. Officers have used this information to make fraud determinations (or at least make presumptions about fraud) that have scuttled unsuspecting (and oversharing) applicants. Sometimes the information found is not accurate, nor is it even posted by the individual in question; sometimes it doesn’t relate to them at all but someone else with their name.
In situations where the validity of a marriage is in question, USCIS has the authority to conduct follow up interviews with couples where they are separated from each other and asked invasive and sometimes inappropriate questions. Unfortunately, this leaves unrepresented and unprepared but legitimate married couples at a disadvantage when a husband forgets the color of his wife’s toothbrush or is taken aback by an officer’s question about their sex life.
Over time, the system has opened up to more non-traditional couples (most notably, same-sex couples), but stories like that of Ms. Barrientos risk hardening officers that already presume fraud in most marriage cases that cross their desk. Regardless of how rare or outlandish her story is, Ms. Barrientos’s antics confirm bad assumptions. I hope they will be seen for what they are and won’t be used as a pretext to introduce additional harsh legislation that only causes hardship to legitimate married couples seeking to follow the rules.