What Is Marriage Fraud? The Legal Test, Penalties, and 2026 Scrutiny

Written by the Ellis Porter content team. This article has not been reviewed by an attorney. It is general information, not legal advice.

Part of Ellis Porter’s guide to fiance and marriage-based green cards.

The line between a real marriage and a sham

If you are planning a marriage-based green card, or an officer just asked a hard question about your relationship, the word fraud can feel terrifying. Here is the reassuring part: the legal test is narrow, and it is about why you married, not whether your relationship looks conventional. Here is what the law actually says, what the penalties are, and what USCIS is checking more closely since 2025.

The criminal statute, 8 USC 1325(c), defines the offense: "Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws." The USCIS Policy Manual describes the other side of the coin. A bona fide marriage is one "entered into in good faith and not for the purpose of evading immigration laws," where "the spouses intended to build a life together at the time they were married."

Two things follow from that wording. The question is intent. And the moment that counts is the beginning of the marriage.

What USCIS does not treat as fraud

Many honest couples worry about the wrong things. According to the Policy Manual:

• Apart from immigration purpose, "USCIS generally does not evaluate specific motives for entering into a marital relationship."
• "The viability of the marriage or the probability of the parties remaining married for a long time is not relevant." A marriage that later breaks down is not fraud for that reason.
• If a couple has a valid marriage but lives apart without a legal separation, USCIS "may not deny the petition merely because the parties live separately."
• "Failure to demonstrate a bona fide marriage does not, by itself, mean that the marriage is fraudulent."

That last point matters. A weak file and a fraudulent marriage are different problems with different consequences. A weak file can be fixed with better evidence. A fraud finding follows a person for life.

Is marriage fraud a felony? The criminal penalties

Yes. Under 8 USC 1325(c), the penalty is imprisonment "for not more than 5 years, or fined not more than $250,000, or both." Under the federal sentencing classification statute, 18 USC 3559, an offense with a maximum term of five years or more but less than ten years is a Class D felony.

The statute says "any individual," so it is not limited to the immigrant. A US citizen or permanent resident who knowingly marries to help someone evade immigration law can be charged too. If you are ever contacted by investigators about a marriage, talk to a criminal defense attorney as well as an immigration attorney before you answer questions.

The immigration consequences, which can be permanent

Criminal prosecution is one track. The immigration track is separate, does not require a conviction, and can be more lasting.

The 204(c) bar is the one people underestimate. The Policy Manual says USCIS "must deny any petition" if the person "previously entered into, or attempted or conspired to enter into, a marriage for the purpose of evading immigration laws." USCIS has to support that with "substantial and probative evidence," which the Board of Immigration Appeals defines as "more than a preponderance of the evidence, but less than clear and convincing evidence." It may rely on direct and circumstantial evidence, including evidence from prior proceedings. Note the words "attempted or conspired": the bar can apply even if no green card was ever granted.

What changed in 2025 and 2026

USCIS has rewritten its marriage guidance and expanded scrutiny in the last 15 months. Each item below comes from a USCIS primary source:

• August 1, 2025: Policy Alert PA-2025-12 added guidance on screening and vetting family petitions, explained when USCIS requires interviews, and said USCIS may issue a Notice to Appear because a family petition "accords no immigration status or relief from removal."
• October 17, 2025: Policy Alert PA-2025-23 said it "will enhance USCIS’ capabilities to identify marriage-based fraud in the initial stages," that USCIS will review marriage bona fides at both the petition and the adjustment stage, and that petitioners must demonstrate a bona fide marriage before approval. It also addressed proxy and virtual marriages.
• May 21, 2026: Policy Memorandum PM-602-0199 told officers to consider "current or previous instances of fraud or false testimony in dealings with USCIS or any government agency" when deciding adjustment cases as a matter of discretion.

For couples, the practical effect is more interviews and closer review of evidence, at both the I-130 and I-485 stages.

When USCIS requires an interview

The Policy Manual’s family petition chapter now lists situations where USCIS requires an interview on a spousal petition. These are the closest thing to an official list of red flags:

• Evidence is insufficient to determine the marital bona fides, or the record indicates the marriage is not bona fide;
• There are material inconsistencies or derogatory information;
• The petitioner previously filed a spousal petition for a different beneficiary;
• Either spouse was a party to a prior denied, revoked, terminated, or withdrawn spousal petition;
• A permanent resident petitioner got status through marriage less than five years before filing for the new spouse;
• The marriage occurred while the beneficiary was in removal proceedings; and
• Testimony is needed to resolve discrepancies after a Request for Evidence or Notice of Intent to Deny.

USCIS may interview spouses "together or separately at any stage in the adjudication." None of these triggers means fraud. They mean the officer wants to hear from you directly. Our green card interview guide explains how to prepare.

One special rule applies if you married while removal proceedings were pending. Under INA 245(e), you generally cannot adjust on that marriage unless you prove "by clear and convincing evidence" that it was entered into in good faith, which is a higher bar than usual.

Building a record that shows a real marriage

The Policy Manual lists the kinds of evidence that support a bona fide marriage:

1. Joint ownership of property;
2. A lease showing joint tenancy of a common residence;
3. Commingling of financial resources;
4. Birth certificates of children born to the couple;
5. Affidavits from third parties with personal knowledge of the relationship, including their name, address, birth date and place, and how they know; and
6. Any other documentation showing you did not marry to evade immigration law.

Never invent, backdate, or exaggerate anything. That turns a documentation gap into a misrepresentation problem. Gather the real traces of your shared life and present them clearly. Our guide to documents needed to apply for a green card through marriage has a practical list.

If you were married less than 24 months when you became a permanent resident, the record matters again two years later, when you file to remove conditions. See removal of conditions (Form I-751).

If USCIS raises fraud

A fraud concern usually arrives as a Request for Evidence, a Notice of Intent to Deny (NOID), or questions at an interview. Treat each as serious:

• Read exactly what the notice says USCIS is concerned about, and respond to that.
• Answer with verifiable evidence and consistent, truthful testimony.
• Do not withdraw a petition or sign a statement without advice. The Policy Manual notes that a withdrawal based on an admission of an immigration-purpose marriage triggers a heavy burden for any later petition between the same couple.
• If there is any chance of a criminal investigation, involve criminal counsel.

A careful response can resolve a concern. A careless one can turn a fixable evidence issue into a permanent finding. For the broader picture of why marriage cases get denied, see our guide to marriage green card denial grounds.

How an Ellis Porter attorney helps

A licensed Ellis Porter attorney can assess where your record is strong and where it looks thin, help you assemble honest evidence of your life together, prepare you for an interview, and respond carefully if USCIS raises a fraud concern. For couples who are entirely genuine but nervous about how their case reads, that preparation is often what makes the process feel manageable. Learn more about our marriage-based green card practice.

This article is general information, not legal advice, and does not create an attorney-client relationship. If you are facing a fraud allegation or investigation, consult a licensed immigration attorney and a criminal defense attorney promptly.

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