Sham Divorces: Shortcut or Legal Minefield in Family-Based Immigration?
Posted on August 14, 2025
We always hear about sham K-1 fiancée and sham marriage relationship accusations from consular officers, but what about… sham divorces? In some countries, this is a “thing” – where a couple cannot receive some state benefit (e.g., reward of an apartment), but if the couple are divorced, then one of the pair is entitled to that benefit. Well, for US immigration purposes, this is also a “thing”: because married adult children of U.S. citizens (F3 immigration category) face significantly longer immigrant visa wait times than their unmarried counterparts (F1 immigration category), some consider a strategy that seems, on the surface, like a practical solution, particularly if there are children involved. The idea is to legally divorce in order to be classified as unmarried; immigrate more quickly under the F1 category and bring along any children; and then, after arrival in the United States as an immigrant, visit the home country, legally remarry, and petition for the spouse under the F2A immigration category. The lure is understandable – accelerating the immigration process for one spouse and the children - but the fraud is not.
As of August 2025, the Visa Bulletin shows that F1 applicants have a priority date cutoff around July 15, 2016, translating to approximately a nine-year wait, while F3 applicants face a cutoff of August 1, 2011, which amounts to about a fourteen-year wait. That five-year difference obviously can have a major impact, especially when young children are involved. Will they be spending those 5 years in the home country or in the United States? However, divorcing for the sole purpose of jumping into a faster-moving category is fraught with legal risk. U.S. immigration authorities have consistently considered “sham divorces” as fraud, and, in many cases, treat the couple as still married for immigration purposes.
To be sure, consular officials are on the lookout for these bogus divorces. Where does the ex- live? Do the couple continue to own joint property? Where do the kids live? Is there a new significant other in the picture? Did the spouse not immigrating marry someone else? When was the divorce? Why did they divorce? Do the couple continue to go out together and spend holidays together? Do the couple have joint bank accounts? Joint lease agreement? What do the neighbors believe: that the couple are still married? If there are children, is child support being paid? These are just some of the questions asked. In short, the bottom line inquiry is whether the marriage truly ended: in intent and reality.
Practically speaking, the consular officer can and does review for a sham divorce at both stages: 1) when the divorced beneficiary of the F1 petition applies for his immigrant visa; and 2) assuming he or she receives the immigrant visa and the couple remarries, when the second member of the couple applies for an immigrant visa down the road years later. The consul can probe and pry to determine what were the couple’s true intentions at the time of the divorce. In an absolute worse-case scenario where fraud is suspected, the first spouse and children could be stripped of their green cards (or even citizenships).
The consequences are indeed brutal: a finding of divorce fraud leads to a permanent bar from the United States under Section 212(a)(6)(C)(i). The five-year gap between F3 and F1 wait times may make a sham divorce look like a tempting shortcut, but US government vigilance makes clear that it is a legal minefield. There may be other employment- or family-based immigration options available. You should be ready to document that the divorce is real. If you have been accused of a sham divorce or are afraid that a consul may accuse you, contact us. The consequences of such an accusation can truly be lifechanging and devastating.