Tag Archives: marriage fraud

Notice of Intent to Deny I-130 or I-129F Petition: Huge Hurdle to Clear in Marriage-Based Green Card Case

The filing of an I-130 or I-129F petition is the first step for a foreign national to obtain a marriage-based green card. When U.S. citizens or permanent residents file an I-130 for a spouse, they must submit evidence proving the marriage is not only legal, but also bona fide. Similarly, when U.S. citizens file an I-129F for a fiancé(e), they must present evidence of intent to enter into a good faith marriage.

If USCIS finds the initial evidence is not persuasive, it may issue a Notice of Intent to Deny  (NOID), which is more problematic than a Request for Evidence (RFE).

A response to the NOID is necessary to overcome USCIS’ doubts about the bona fides of the marriage or the couple’s intent to enter into a bona marriage. Typically, the petitioner has 30 days to respond to the NOID, which explains why the initial evidence is not persuasive and why USCIS is intending to deny the petition.

The most common reasons for USCIS to issue a Notice of Intent to Deny an I-130 or I-129F petition are described below:

1. Insufficient Evidence of a Bona Fide Relationship

Evidence of termination of prior marriages (e.g. divorce decree or death certificate of prior spouse) is required to show the couple is legally free to marry. In I-130 cases, the submission of a marriage certificate showing the validity of the marriage is also a must. But it’s not enough to prove the marriage is legal (in immigrant visa/green card cases) or the couple is legally free to marry (in K-1 fiancé(e) visa cases).

In a NOID, USCIS usually points to the lack of evidence of a bona fide relationship, i.e. the marriage was created (or will be created) with good faith intent to establish a life together as spouses, and not for the purpose of circumventing U.S. immigration laws.

USCIS also often raises concerns about the evidence that was submitted. Examples: photographs of the couple together are all taken at a single event, instead of at different events; joint billing statements are only from the last two months; joint bank account statements fail to show regular deposits and withdrawals.

The response to the NOID must address the deficiencies with additional evidence, such as:

  • Photos of the couple together and with family and friends taken over the course of their relationship, including before the marriage/engagement and long after the marriage/engagement
  • Federal income taxes showing the filing status as married (filing jointly or separately)
  • Joint residential lease or mortgage statements showing shared residence
  • Joint health, dental, disability, automobile, life, home, and renter’s insurance.
  • Joint bank account statements, joint credit card statements and other documentation of active comingling of financial resources
  • Receipts for shared purchases (e.g. furniture, motor vehicle)
  • Affidavits from third parties attesting to the bona fide nature of the marriage
  • Birth certificate for child born of the marriage, or evidence that the couple is expecting a child

Typically, it is harder to prove a bona fide relationship when you are living overseas and applying for an immigrant visa or K-1 fiancé(e) visa at the U.S. Consulate, instead of a green card within the U.S.  Alternative evidence includes:

  • Receipts of wire transfers or bank transfers from one person to the other
  • Evidence of international travel or visits to see each other, e.g. hotel reservations and bills; travel stamps in passports; travel itineraries; boarding passes; photographs of the trip
  • Records of written communication between the couple or between one spouse and a third party mentioning the other spouse, e.g. emails, letters,  and cards
  • Printouts of text messages or messages exchanged on social media
  • Telephone records showing regular conversations between the couple

2. Inconsistent Testimonies or Incomplete Answers Given at the Interview

When the spouse of a U.S. citizen (or permanent resident) is in the U.S. and is eligible for adjustment to permanent residence, he or she may file an I-485 application concurrently with the I-130 petition.

USCIS will schedule both the petitioner and beneficiary for an interview at the Field Office that has jurisdiction over where the couple lives. At the interview, the officer will ask questions to determine whether the marriage is bona fide. The officer also observes the couple’s general demeanor, body language, and interactions with each other during the interview.

In some cases, the couple may be separated and questioned individually. Generally, the officer asks each person the same questions, takes notes, and later compares the answers to see if they match up.

In a NOID, USCIS may list out discrepancies or inconsistencies between the testimonies. Examples are: one spouse claims she has met the other’s siblings, while the other spouse says no such meeting occurred; one spouse states the premarital courtship lasted for six months, while the other says it was one month; one spouse recalls they traveled during the last July 4th holiday, while the other spouse notes they celebrated in town.

USCIS may also describe incomplete or deficient answers given at the interview. For example, one spouse doesn’t know the other’s birthday, parents’ names, work schedule, model of motor vehicle owned, or other personal information USCIS believes a bona fide married couple should know.

In the response to the NOID, both parties must address each and every one of USCIS’ concerns about their testimonies. Discrepancies and incomplete answers may be due to a variety of factors, including the USCIS officer’s misunderstanding of the answers, the foreign national’s limited English proficiency, different expectations about what couples should know about each other, and outright fabrication in testimonies.

3. Adverse Information Gathered in USCIS’ Investigation

In I-130 cases where the foreign national beneficiary is in the United States, USCIS expects the couple to live together. A legal separation of the couple gives USCIS solid ground to deny an I-130 petition. If there is no legal separation, but the couple simply resides separately, USCIS may not deny the I-130 merely because of lack of cohabitation. Maintaining separate residences, however, is relevant to determining the couple’s intent at the time of the marriage. USCIS also considers no cohabitation since the marriage as one factor indicating a sham marriage.

If the officer suspects the marriage is a sham, USCIS may conduct further investigation. This includes USCIS investigating officers showing up at the parties’ claimed residence to verify if they live together as a married couple. The “bed check” or “site visit” can occur at any time after the interview — sometimes as long as one to two years later — while the case is pending.

The site visit is unscheduled and typically occurs very early in the morning.  The USCIS officers will knock on your door and ask to enter your home so they can look around and ask questions. While the parties may refuse to admit the officers into their home, this could raise more suspicion and trigger other types of investigation. If no one is around to admit the officers inside the home, they can keep coming back or take a look around outside the home.

USCIS officers may also talk with your neighbors or your landlord/rental manager to verify whether you live together at your claimed residence. They may request records from your employer or school to confirm your reported marital status, residence, emergency contact, etc.

USCIS also often checks Department of Motor Vehicle (DMV) records, court records, social media, and other miscellaneous sources to  see if there is any adverse information, such as the parties claiming different residences or failing to hold themselves out as a married couple.

In a NOID, USCIS may describe adverse information gathered during its investigation, which indicates the marriage is a sham or at least raises doubts about its bona fide nature. Examples include: lack of personal belongings of one spouse in the shared residence; neighbor or landlord claims the couple do not live together; or DMV records lists an address other than the shared residence.

In the response to the NOID, the couple must tackle issues that arose during USCIS’ investigation. One spouse may keep his clothes in a separate room due to limited closet space. The neighbor or landlord might have been misquoted by USCIS. One spouse may have neglected to report an address change to the DMV after moving in with the other.

4. Fraudulent Marriage Prohibition Against Approval of I-130 or I-129F Petition

Section 204(c) of the Immigration & Nationality Act states:

…no petition shall be approved if (1) the alien has previously been accorded, or has sought to be accorded, an immediate relative or preference status as the spouse of a citizen of the United States or the spouse of an alien lawfully admitted for permanent residence, by reason of a marriage determined by the Attorney General to have been entered into for the purpose of evading the immigration laws[,] or (2) the Attorney General has determined that the alien has attempted or conspired to enter into a marriage for the purpose of evading the immigration laws.

Basically, USCIS cannot approve an I-130 or I-129F petition when the foreign national beneficiary is found to have previously entered into or conspired to enter into a sham marriage solely for immigration benefits.

When USCIS raises section 204(c) in an I-130 or I-129F petition, the case gets very complicated. The issue is not so much whether the current I-130 or I-129F petitioner and beneficiary share a bona fide relationship, but whether the beneficiary previously committed or conspired to commit marriage fraud.

In the response to the NOID, the couple must provide favorable facts and rebuttal evidence indicating the prior relationship was not a sham and section 204(c) does not apply. If USCIS finds the rebuttal is insufficient, and concludes there is substantial and probative evidence of a prior sham marriage, it cannot approve the I-130 or I-129F petition, even if the beneficiary has a bona fide relationship with the current petitioner.

More Points to Consider

1. A NOID is more appropriate than a RFE when initial evidence is mostly present, but: (a) the filing does not appear to establish eligibility by the preponderance of the evidence; (b) the case appears to be ineligible for approval but not necessarily incurable; or (c) the adjudicator intends to rely for denial on evidence not submitted by the petitioner.

2. The petition belongs to the U.S. citizen or permanent resident. Although the beneficiary may contribute to the response to the NOID, only the petitioner may file the response. The beneficiary has no standing to pursue an I-130 or I-129F alone.

3. USCIS examines the bona fides of the marriage, not its “viability” (i.e. the probability of the parties staying married for a long time). Nevertheless, once a NOID is issued, it becomes much more challenging to prove the marriage is bona fide.

4.  USCIS does not conduct interviews, prior to issuing a decision on the I-130 or I-129F, when the beneficiary will apply for an immigrant visa or K-1 visa abroad. But discrepancies or inconsistencies may arise later when the U.S. Consulate conducts the visa interview. If the consular officer finds, during the visa interview, that USCIS should not have approved the petition, it may return the case to USCIS with a memorandum explaining why the approval should be revoked. Marriage fraud issues can be raised by the Consulate. USCIS may then issue a Notice of Intent to Revoke the I-130 or I-129F approval, to which the petitioner has 30 days to respond.

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If the response to a NOID is not handled properly, the likelihood of receiving a denial is almost certain. In the denial notice, USCIS may not only find the petitioner failed to prove the bona fides of the marriage, but further rule the marriage is a sham (i.e. entered into solely for immigration benefits).

The NOID provides a taste of denial without its immediate consequences. It gives the petitioner an opportunity to address doubts about the relationship. Enlisting the help of an experienced immigration attorney is crucial to providing a timely, complete and effective response to a NOID.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by:  JanetandPhil

5 Things to Do to Get Your Marriage-Based Green Card

In this video series, immigration attorney Dyan Williams describes the one-step petition (I-130 & I-485) and the five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage
2. Establish a life together and collect evidence of this
3. Provide sufficient evidence of bona fide marriage
4. Take the interview seriously and prepare for it
5. Get help from an experienced immigration attorney

Read about 5 Things to Get Your Marriage-Based Green Card here.

Contact Dyan if you need help filing an immigrant petition for a foreign national spouse, responding to a Notice of Intent to Deny I-130 petition, or appealing a denial of an I-130 petition based on failure to prove a bona fide marriage.

This video series provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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What to expect at your marriage-based green card interview

Before USCIS approves a marriage-based green card application, it will normally interview the couple to determine whether their marriage is real or fake.

Marrying a U.S. citizen doesn’t automatically lead to a green card for the foreign national spouse. The U.S. citizen must prove that the marriage is bona fide (i.e. entered into with the intent of establishing a married life together), and is not a sham (i.e. entered into just to gain immigration benefits). The green card applicant also needs to be admissible to the U.S. or otherwise qualify for a waiver of inadmissibility.

To start the process, the U.S. citizen first files a Form I-130 immigrant petition for the spouse. If the couple is not yet married, the U.S. citizen may file a Form I-129F petition to bring a fiancé(e) to the U.S. on a K-1 visa.

A spouse who is already in the U.S. and qualifies for adjustment to permanent residence may file the Form I-485 (green card) application at the same time the I-130 is filed. This is known as concurrent filing or “one-step adjustment of status.” A fiancé(e) who enters the U.S. on a K-1 visa must marry the U.S. citizen within 90 days of arrival and then file for adjustment.

After filing a marriage-based green card application, the petitioner and foreign national will receive an interview notice to appear at the local USCIS field office at a scheduled date and time. The notice is normally issued two to eight weeks prior to the interview. USCIS may waive an I-485 interview for K-1 entrants, but the documentation must be strong enough to get an approval without an interview.

USCIS will approve the I-130 only after it determines that they truly share a married life together.  In addition to providing documentation of a shared married life (e.g., joint mortgage, joint bills, joint tax returns, birth certificates of children, family photographs), the couple must also give credible testimony confirming their marriage is bona fide.

USCIS will also verify whether the I-485 applicant has any criminal history, immigration fraud or misrepresentationpublic charge or other inadmissibility issues that prevent adjustment.

Knowing what to expect at the USCIS interview is crucial to obtaining an I-130 and I-485 approval and avoiding further investigation, delays in the case, or a denial notice.

What are the basic steps to follow at a marriage-based immigration interview? 

1) You arrive at the USCIS building and present your interview notice to the security guard. Before you can proceed to the waiting room, you go through a metal detector and your personal belongings go through screening. Each USCIS field office has its own protocol, but cameras (including cell phones with cameras) and recording devices are normally prohibited.

(NOTE: Arrive at least 15 minutes early, but no more than 45 minutes in advance of the appointment. If you arrive too early, you may be turned away and asked to come back closer to your appointment time.)

2) You proceed to the waiting area and hand in your interview notice at the window. You then wait for your name to be called by the USCIS adjudications officer assigned to review your case. Although the interview usually starts on time, be prepared to wait for a more extended period.

3) The USCIS officer will normally bring both of you to his or her desk to be interviewed together (instead of question you separately).

4) You will be asked to remain standing while you take oaths to tell the truth. You will need to verify your identity by presenting your driver’s license or other form of ID.

5) The officer will typically review your marriage certificate, divorce decrees (if you had any prior marriages), and passport. Bring the originals with you in case the officer wants to see them.

6)  The officer will go through the application forms to verify basic information such as your address, telephone numbers, and dates of birth.

7) The officer will next ask questions about your relationship and your married life together, such as when and how you met; when and why you decided to get married; who proposed; how many people attended your wedding; and when you moved in together.

8)  You also have the opportunity to present additional evidence of your married life, especially if you had few documents to present at the time of filing the petition and adjustment application.

What is the best possible outcome of a marriage-based immigration interview? 

If, at the end of the interview, the officer determines your marriage is bona fide, the I-130 petition can be approved on the spot. The I-485 will be approved as well if the foreign national qualifies for adjustment of status, the background check has cleared, and the marriage is found to be bona fide.

You will receive approval notices in the mail, after which the green card is issued in about three weeks.

What delays can occur following a marriage-based immigration interview? 

Case put on hold due to delays in name check and FBI clearance

Sometimes the FBI and other outside agencies are unable to complete all the background checks on the foreign national before the interview date. The USCIS officer may still approve the I-130 petition, but not the green card application until all the background checks are clear. You may schedule an InfoPass appointment to check on the progress in your case.

Case put on hold because more evidence is needed

The officer may issue a Request for Evidence (RFE) when he or she needs more documents to make a final decision on the case.  The officer will issue an I-72 form listing the missing items and stating the time frame in which to submit the evidence (usually 12 weeks).  Although an RFE does not mean USCIS intends to deny the case,  your failure to file a timely response could lead to a denial.

Case put on hold because officer is undecided or has other priorities

Sometimes the officer is undecided on whether to approve or deny the case.  For example, the officer is convinced that the parties share a bona fide marriage, but questions whether the foreign national is eligible for adjustment of status. A false claim to U.S. citizenship to gain employment or a serious criminal conviction are two common reasons why an adjustment application can be held up, even if the officer intends to approve the I-130 petition.

The interviewing officer may forward the case to a supervisor for further review and guidance. The sheer volume of petitions and applications being processed at the USCIS field office can add to the delay.

Several months might pass before the officer finally approves the case. In some instances, the officer may approve the petition, but deny the I-485 adjustment application. If the foreign national is placed in removal proceedings, the adjustment application and other forms of relief can be reviewed by an Immigration Judge.

What  problems can occur at a marriage-based immigration interview? 

Lack of documentation, the couple’s demeanor, discrepancies in the testimonies, faulty translations by an inexperienced interpreter, and other factors can  cause the officer to have doubts about the marriage.

The officer may separate the couple and question each party individually, or schedule the parties for a second interview, which could occur as much as 6+ months after the first interview. Each party will be asked the same questions separately. Then the officer will compare their answers to see if they match up.

The officer will ask probing and personal questions to determine whether the parties really know each other and share a married life. Even bona fide married couples have trouble answering questions aimed at detecting fraud, such as:

  • what is the color of the walls in your bedroom?
  • what side of the bed do you sleep on?
  • what type of birth control do you use?
  • what did you do for your spouse’s last birthday?
  • how did you celebrate last Thanksgiving?
  • how many rooms are in your home?
  • when was the last time you watched television together?
  • who woke up first this morning?
  • where did your spouse live when you first met?

Fraud interviews are intense and can last for an hour or more. It is rare for each party to provide the exact same answer on every single question, regardless of whether the marriage is bona fide.

If the officer suspects the marriage is a sham, USCIS may conduct further investigation. This includes USCIS investigating officers showing up at the parties’ claimed residence to verify if they live together as a married couple. The “bed check” or “site visit” can occur at any time after the interview — sometimes as long as one to two years later — while the case is pending.

The site visit is unscheduled and typically occurs very early in the morning.  The USCIS officers will knock on your door and ask to enter your home so they can look around and ask questions. While the parties may refuse to admit the officers into their home, this could raise more suspicion and trigger other types of investigation. If no one is around to admit the officers inside the home, they can keep coming back or take a look around outside the home.

USCIS officers may also talk with your neighbors or your landlord/rental manager to verify whether you live together at your claimed residence. They may request records from your employer or school to confirm your reported marital status, residence, emergency contact, etc.

USCIS also often checks Department of Motor Vehicle (DMV) records, court records, social media, and other miscellaneous sources to  see if there is any adverse information, such as the parties claiming different residences or failing to hold themselves out as a married couple.

Seek Immigration Counsel

If USCIS issues a Notice of Intent to Deny (NOID) the petition or application, you will have 30 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition or the adjustment of status application.

As long as the marriage is real and the parties fully rebut the marriage fraud allegations with objective and credible evidence, they can get the petition approved.

An experienced immigration attorney can help you prove the marriage is real, address discrepancies, overcome grounds for suspicion, and prevent a denial of the petition.

You are better off having an attorney present at the interview. And the best time to consult an attorney is before you file the one-step adjustment application or K-1 to green card application, not after USCIS issues a Request for Evidence, second interview notice, or Notice of Intent to Deny, when irreparable mistakes might have already occurred.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Bernard Goldbach