Visa Fraud occurs when a visa applicant gives false information to the federal government to obtain a visa.
A visa applicant that lies about anything from the number of times they’ve been married to purposely understating their criminal history is guilty of visa fraud.
If fraud is discovered even after the applicant has been granted a visa and permanent residency, the immigrant can still be prosecuted for fraud and removed from the United States.
Many foreigners attempt to use the tourist visa or Visa Waiver Program as a shortcut to permanent residency, but this method constitutes Visa Fraud.
Detecting fraud is a top priority of USCIS officials because it is frequently attempted.
The visa process can be lengthy and difficult so that the USCIS can discover and deny fraudulent applications.
Two common forms of visa fraud that occur during the K-1 and K-3 process are sham marriages and misuse of tourist visas (B-1 and B-2), including the Visa Waiver Program.
The following information will help you understand what the USCIS considers fraud and how to avoid committing it.
What is the Visa Waiver Program?
The Visa Waiver Program (“VWP”) is a program that allows citizens of certain countries to travel to the United States for business or tourism for a period of fewer than 90 days without getting a visa.
Citizens of countries that are not enrolled in the VWP must obtain a B-1 or B-2 visa to visit the United States on business or tourism for less than 90 days.
Adjusting Status from VWP or Tourist Visa
As a general rule, a person present in the United States through the VWP or on a tourist visa may not adjust status.
However, if you are a spouse, child or parent of a U.S. citizen you may apply for permanent residency as long as you entered the U.S. lawfully.
When is Entering Under the VWP or on a Tourist Visa Not Lawful?
If you have entered the United States through the VWP or on a tourist visa with the intent to remain longer than your lawful stay, then your use of VWP or tourist visa was unlawful.
Consider the following example for when entering under the VWP is unlawful:
Example: Jakob, a German citizen, enters the United States through the VWP with the intention to marry his American girlfriend and apply for permanent residency. USCIS is suspicious of his use of the VWP and subsequent application for permanent residency, and questions Jakob at his green card interview.
It is revealed that Jakob intended to marry his girlfriend and remain in the United States for more than 90 days upon entry through VWP.
Jakob is guilty of visa fraud and will be subject to the appropriate penalties.
As evidenced above, a USCIS officer will inquire about your purpose in traveling to the United States at your green card interview.
If your answer indicates that you had any intention to remain longer than the 90 days permitted, you will likely be investigated for visa fraud.
Sham Marriages
The K-1 and K-3 visas are exclusively for engaged and married couples who are together for purposes other than immigration status.
Since it is difficult to prove your relationship is not motivated by gaining entry to the United States, the USCIS has instituted measures to ensure sham marriages are discovered before a visa is issued.
If a couple has feigned a relationship for the purpose of being granted K-1 or K-3 status, they have committed visa fraud.
How Does USCIS Detect Sham Marriages?
USCIS will likely be suspicious if:
- You and your spouse do not share a language
- There is a significant age difference between you and your spouse
- Your marriage or engagement happened soon after you met
This list is by no means exhaustive but provides examples of common red flags. USCIS can investigate the relationship of the petitioner and beneficiary for any reason.
Will USCIS Tell Us if We Are Being Investigated for Fraud?
They are not required to tell you, but you will likely be able to infer if USCIS is suspicious of marriage fraud.
If suspicious, USCIS can require you to attend a fraud interview in addition to the required consular interview.
However, scheduling a fraud interview does not mean the USCIS will necessarily deny your application.
For more information on the fraud interview, you can read “What Questions Will I Be Asked at my Marriage-based Green Card Interview?”
What is the Penalty for Visa Fraud?
A visa holder who is found to have committed fraud either by abusing the VWP or by participating in a sham marriage will be placed in removal proceedings and barred from reentering the United States.
An immigrant guilty of marriage fraud can face up to 5 years in prison and a 250,000 dollar fine.
A U.S. citizen who is guilty of visa fraud faces separate penalties for the crime. If the U.S. citizen has committed marriage fraud, they will likely face substantial fines and in rare cases jail time.
If the petitioner is not a citizen, but a U.S. permanent resident, they will likely be placed in removal proceedings.
How Can I Avoid Visa Fraud?
The most basic answer is “be honest”. Full disclosure is the best policy when dealing with the United States government.
Suggested Evidence to Prove Your Marriage is not Fraudulent
To avoid suspicion from USCIS, provide as much evidence as possible to verify that your engagement or marriage is a bona fide relationship.
This evidence can include photos together, wedding registries, emails, and more.
Suggested Evidence to Prove You Did Not Misuse the VWP or Your Tourist Visa
If you entered the U.S. for business purposes, you should be able to prove to USCIS that you entered lawfully by providing evidence from your company.
Company emails or proof that your company reimbursed your travel expenses may suffice as evidence that the purpose of your trip to America was not to marry a U.S. citizen.
Additionally, your employer can provide a notarized statement about your business trip to the USCIS.
To show that you came to the United States strictly for tourism, you can provide a wide variety of evidence, including photos of you at popular landmarks or trip itineraries that do not include your (future) spouse.
The possibilities are endless when it comes to showing that your use of a Visa was not fraudulent or merely for the purposes of getting married.
However, you may need to get creative to assemble and submit the right kinds of evidence to demonstrate to USCIS that it was not your original intent to bypass the fiancé visa process by entering with a tourist visa or visa waiver.
