Dear Mrs Walker-Huntington:

I am writing on behalf of my mother, who resides overseas. She got married to obtain her papers, but the other party is not holding up his end of the bargain.

It has been now two years and counting since the marriage, and nothing was done. She has been to a lawyer and has been advised to come in with her husband. He bluntly refuses to go with her.

I must state that she has a 10-year visiting visa. What can she do to get out of this mess?

Unfortunately, your mother has found herself in a situation that many immigrants have been in before.

Out of desperation, they marry a US citizen for the purpose of obtaining a green card and the plan goes awry.

US-citizen spouses have been known to disappear shortly after the marriage, just before the interview or appear at the interview unprepared and disinterested in a positive outcome.

Marriage to obtain immigration benefits is considered fraud by the United States Citizenship and Immigration Services (USCIS) and has severe consequences for both immigrant and the US citizen. Once the USCIS decides that immigration marriage fraud has taken place, the immigrant will face a permanent bar to permanent residency in the US - even if a subsequent petition for residency is filed by another legitimate spouse or any other family member. The US citizen faces hefty fines and/or imprisonment if convicted.

Intent

The intent of the parties at the time of the marriage is what governs in the cases. If your mother married solely for immigration purposes and not for love, her marriage is not valid under the law. If, however, the marriage was entered into for love but deteriorated over time, the immigrant may be able to obtain their green card. The second scenario is difficult but not impossible.

Every couple who present themselves to USCIS where one spouse petitions for the other for a green card must be prepared to prove that their marriage is real. They must show that they have commingled their assets, their debts, that they know each other well, know about each other's family and that they are thoroughly familiar with the marital home.

A couple must be prepared to live together. In some cases, plausible explanations can be given as to why a husband and wife live in separate cities and the couple can still be approved for residency status. However, a couple in an immigration case must live their lives as if someone is looking over their shoulders at all times.

USCIS have officers whose job it is to investigate if married couples live where they say they live, if the parties are leading double lives, if one party is having an affair, and the overall validity of the marriage. It is one thing if one party is unaware that the other is living a double life, but if both parties knowingly enter into a marriage for the sole purpose of obtaining immigration benefits, the penalty is severe.

If your mother's petition has not yet been filed, she should file for divorce and move on with her life. She should seek a legitimate relationship where she falls in love with a US citizen and marries and lives with her husband.

Seek legal advice

If the petition has already been filed, she should confide in her attorney and seek their advice about withdrawing the petition and the possible negative consequences that withdrawal could have on her individual future ability to remain in the US. She should be honest with her attorney about her situation, and while the attorney may not be able to represent her knowing that she is in a 'sham' marriage, at least she will receive practical advice.

Since your mother has obviously been out of status in the US for more than a year, she should be aware that if she returns to Jamaica, she would face a mandatory 10-year bar to returning to the US. However, if she is deported because of marriage fraud, she would face a permanent bar to returning.

Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises law in Florida in the areas of immigration, family, corporate and personal injury law. She is a mediator, arbitrator and special magistrate in Broward County, Florida. Email: info@walkerhuntington.com or editor@gleanerjm.com.