Tag Archives: sham marriage

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

Marrying a U.S. citizen is one of the quickest — but not necessarily the easiest — way to get a green card. USCIS will deny a marriage-based green card case if it does not receive sufficient evidence of a bona fide marriage and/or if it determines that the marriage is a sham.

A U.S. citizen’s filing of an I-130 petition with USCIS is the first step to helping the foreign national spouse become a permanent resident. A spouse who was lawfully admitted to the United States or who qualifies for 245(i), and is still in the U.S., may concurrently file an I-485 application to become a lawful permanent resident (green-card holder). One advantage is that the spouse does not have to depart the U.S. to apply for an immigrant visa at the U.S. Consulate.

Submitting the I-130 and I-485 together is known as the one-step petition/application. Normally, USCIS processes and adjudicates both at the same time. The foreign national cannot receive a marriage-based green card unless USCIS approves the I-130 petition.

Here are five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage

USCIS will approve the I-130 petition only if it finds that the parties entered into marriage in good faith, i.e. intended to establish a life together at the time they married.  Normally, it must be proven by a “preponderance of the evidence” that the marriage is bona fide. Basically, this means the petitioner must show that it is “more likely than not” the marriage is real. [NOTE: When the marriage occurs while the foreign national is in removal proceedings, the standard of proof is higher: It must be shown by “clear and convincing evidence” that the marriage is real.]

Typically, USCIS expects a bona fide married couple to speak each other’s languages, live together, share common interests, co-mingle their finances, own joint property, and celebrate important events like holidays, birthdays and anniversaries.

A good faith marriage is one that is entered into for reasons other than for circumventing U.S. immigration laws. It could be arranged or freely chosen by the parties. It may be based on mutual love and affection, shared religious beliefs, a need for lifetime companionship, or a desire to raise children together.

A bona fide marriage is the opposite of a sham marriage, which is when the parties marry solely or primarily to obtain immigration benefits for the foreign national. USCIS’ Adjudicator’s Field Manual lists 10 factors indicating a marriage might be a sham:

  • Large disparity of age
  • Inability of petitioner and beneficiary to speak each other’s language
  • Vast difference in cultural and ethnic background
  • Family and/or friends unaware of the marriage
  • Marriage arranged by a third party
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States
  • Discrepancies in statements on questions for which a husband and wife should have common knowledge
  • No cohabitation since marriage
  • Beneficiary is a friend of the family
  • Petitioner has filed previous petitions on behalf of foreign nationals, especially prior foreign national spouses

If any of these 10 factors apply to your marriage, you can expect more scrutiny from USCIS.

2. Establish a life together and collect proof of this

Before the one-step petition is filed, the couple should take steps to establish a married life together and collect documents to prove they are committed to one another. Examples include:

  • Living together (joint residential lease or mortgage statement showing both names, driver’s licenses showing same address)
  • Buying major assets together (motor vehicle title, invoice for furniture)
  • Adding the spouse as a beneficiary to employer-sponsored benefit (life insurance policy, health insurance plan, retirement account)
  • Co-mingling assets and liabilities (joint bank account statements, joint credit card statements, joint tax returns)
  • Sharing household expenses (utility bills in both names)
  • Going on vacations together (travel itineraries, photographs)
  • Participating in shared activities (gym or club memberships)
  • Spending time with mutual friends (affidavits from third parties attesting to the bona fides of the marriage)

The Service will consider the parties’ conduct before and after the marriage to determine their true intent at the time of marriage.

Circumstances might require the couple to live apart temporarily, especially for work-related reasons. If the couple is not living together at the time they file for immigration benefits or at the time of their interview, they need to have a good explanation and gather reliable documentation showing they have a real marriage. Examples include:

  • Letters, emails and greeting cards you have exchanged with each other
  • Airline tickets, hotel bills and other receipts showing trips you made to see each other
  • Telephone records showing calls you made to each other
  • Photographs of the two of you together and with family and friends (or even with pets), taken over a considerable period at different events
  • Correspondences (e.g. bills, letters, cards) addressed to both of you at the same address
  • Receipts for gifts you bought each other
  • Birth certificates of (biological, adopted) children you have together, or evidence that you are trying to have children

3. Provide sufficient evidence of a bona fide marriage 

The Instructions for Form I-130 list the types of documents that may show the bona fides of a marriage. They include documentation showing joint ownership of property (e.g. mortgage, car title); documentation showing co-mingling of financial resources (e.g. joint bank account); birth certificates of children you have together; and affidavits from third parties confirming the bona fides of your marriage.

Your marriage certificate and proof of termination of any prior marriages (e.g. divorce decree or death certificate of previous spouse) only show that your marriage is valid. These documents are required, but are not sufficient to show the marriage is bona fide.

Filing a one-step petition is not just about completing the forms and submitting the filing fees. You also need to carefully document the bona fides of your marriage and give USCIS a sense of who you are as a couple.  The more documents you present to show your marriage is real, the easier it will be for the officer to approve your case.

Some types of documents are also more persuasive than others.  For example, birth certificates of your children, mortgage statements for your shared home, and life insurance policies showing one of you as the other’s beneficiary are much more persuasive than photographs of the two of you together, your joint residential lease , and your joint utility bills. They are harder to fake and are practically non-existent in sham marriages.

No matter the circumstances, you must avoid submitting any fabricated, false, forged or altered documents to USCIS. This could lead USCIS to find that you committed fraud or willful misrepresentation of material facts to obtain immigration benefits. This would require you to obtain a waiver of inadmissibility to obtain the green card (even if you managed to get the I-130 approved).

4. Take the interview seriously and prepare well for it

In marriage-based green card cases,  the USCIS field office in your jurisdiction normally interviews you to verify whether your marriage is bona fide.

The officer will place you both under oath at the start of the interview. In addition to getting specific information, the officer will be observing your demeanor and your interactions with each other to determine whether you have a real marriage.

Tell the truth at the interview, even if the answers are less than ideal. Giving false testimony or misrepresenting facts at the interview is grounds for a denial. Discrepancies between your and your spouse’s testimonies and inconsistencies within your testimonies also hurt your credibility. They will cause the officer to doubt the bona fides of your marriage.

At the interview, listen carefully to the USCIS officer’s questions and respond truthfully to the questions you’re being asked. Giving too many details about your courtship and embellishing stories about your shared life can make you less believable.

There’s no need to volunteer information that was not required on the application forms and is not being asked for at the interview. While you should not give misleading information to cut off a line of inquiry from the officer, you also don’t want to open up a line of questions that could unnecessarily bring out negative information.

If you don’t understand a question, ask the officer to repeat it or rephrase it. If you don’t recall information or you’re not 100% sure of your answer, let the officer know.  If you feel you’re being asked inappropriate questions, stay calm and avoid arguing with the officer. (You may ask to speak with a supervisor.)

If your first language isn’t English or if you’re not fluent in English, be sure to bring a qualified interpreter. Otherwise, you could misunderstand the officer’s questions or the officer could misunderstand your answers.

USCIS often interviews you together, but may interview each of you separately. When separate interviews are conducted, the officer will ask you each the same questions and compare your answers. If both of you tell the truth, it’s more likely that your answers will be the same or similar. Consistent testimonies help to persuade the officer that you have nothing to hide and that your marriage is bona fide.

Even bona fide married couples do not always observe, perceive or recall things the same way. For example, would you give the same answers if you were separately asked the following questions:

  • Where did you first meet?
  • How did you meet?
  • Where did you go on your first date? When was your first date?
  • How many people attended your wedding?
  • What did you to to celebrate your marriage?
  • Why did you get married?
  • Who proposed? Where were you when marriage was proposed?
  • What are your spouse’s work hours?
  • What is the color of the wall in your bedroom?
  • Which side of the bed do you sleep on?
  • Where did you go on your last vacation together?
  • Who woke up first this morning?

These are just a few of the many potential questions the officer may ask you. It helps for you and your spouse to prepare for the interview and make sure you’re on the same page when it comes to your relationship history and shared life together.

Your testimony at the interview can be the deciding factor in whether your case gets approved. Following the interview, the adjudications officer can approve the one-step petition, issue a Request for Evidence, have a site visit conducted at your claimed residence, conduct further investigation, or issue a Notice of Intent to Deny the petition.

5.  Get help from an experienced immigration attorney

You’re better off consulting an attorney from the outset, before you file your one-step petition. Full representation is best, but if you cannot afford this, you want to get limited representation or consult an attorney at least once.

An experienced attorney can determine whether you qualify for a marriage-based green card, review your application forms for accuracy and completeness, advise you on the types of documents to submit to prove the bona fides of your marriage, prepare you for what to expect at the interview, and represent you at the interview. An attorney can also discuss red flags in your case and counsel you on how to address them.

At the interview, a USCIS officer who suspects the marriage is fraudulent may give the U.S. citizen an opportunity to withdraw the petition and write a statement to that effect. Having your attorney at the interview will help protect your rights and make the process more comfortable.

A diligent attorney will take notes, ask clarifying questions, and object to inappropriate lines of questioning. The attorney will also be able to give you an assessment of how the interview went and advise you on follow-up matters.

Want to hear about 5 Things to Do to Get Your Marriage-Based Green Card? Check out the video series:

Conclusion

Entering a bona fide marriage, establishing a life together, submitting documentation of your shared life, successfully completing the interview, and seeking advice from counsel are five key steps to getting your marriage-based green card. If you have a real marriage, you really have little to worry about. It’s just a matter of convincing USCIS that your marriage is bona fide.

WARNING!

USCIS may deny a one-step petition if it receives insufficient evidence of a bona fide marriage and/or if it finds that the marriage is a sham. The immigration authorities may then file removal charges against the foreign national on several grounds, such as failing to maintain lawful non-immigrant status and committing fraud to obtain immigration benefits.

A sham marriage finding is also a permanent bar to obtaining an approval of any subsequent petitions for the foreign national. So the foreign national could never get a green card based on, for example, a second petition by the same spouse or by a new spouse (unless the marriage fraud finding was overturned on appeal or on USCIS’ own reconsideration).

Marriage fraud is a crime. A person who knowingly enters into a marriage for the purpose of evading immigration laws is subject to imprisonment (up to 5 years), a fine (up to $250,000), or both.

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: Eva the Weaver