Category Archives: adjustment of status

Federal Judge Issues Injunction; Expanded DACA and New DAPA on Hold for Now

Posted on February 18, 2015 | Comments Off on Federal Judge Issues Injunction; Expanded DACA and New DAPA on Hold for Now

In response to a federal judge’s order temporarily blocking President Obama’s executive action on immigration, the Department of Homeland Security (DHS) has halted plans to roll out the expanded Deferred Action for Childhood Arrivals (DACA) program today. Whether DHS will launch the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program in May 2015 is also uncertain.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

The White House said  Obama’s actions “are well within his legal authority.” The U.S. Department of Justice plans to appeal and will likely request an emergency stay of Judge Hanen’s decision at the 5th Circuit Court of Appeals in New Orleans.

Money, Money, Money

In his 123-page decision, Judge Hanen ruled that the Obama administration failed to comply with the Administrative Procedures Act because it did not follow the notice-and-comment rulemaking process in implementing the new policies. The judge did not rule on the primary legal claim that the deferred action programs are unconstitutional.

The Texas-led coalition of states in the lawsuit are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

The judge found that Plaintiffs would suffer economic injuries as a result of the deferred action programs and therefore have standing to file the lawsuit.

Texas, in particular, stated that the DHS Directive would create a new class eligible to apply for driver’s licenses, the processing of which would add substantial costs to its budget. The judge noted, “Texas’ undocumented population is approximately 1.6 million, and Plaintiffs’ evidence suggests that at least 500,000 of these individuals will be eligible for deferred action through DAPA.” The judge added there would be increased costs associated with processing a wave of new driver’s licenses.

In 2013, an estimated 86.3% of the U.S. workforce commuted to work in private vehicles. This is especially true in the 26 states that filed the lawsuit, as none of them have extensive mass transit systems.  Because federal law requires the issuance of driver’s licenses to deferred action recipients, Judge Hanen found that the states would suffer economic injuries as a result of the new programs.

Plaintiffs also argued that the DHS Directive will create a discriminatory employment environment that encourages employers to hire DAPA beneficiaries instead of lawful residents.  They noted that DAPA beneficiaries are more affordable to hire because it is likely that employers will not be required to provide them with health care or suffer a penalty for not doing so.

“…no effective way of putting the toothpaste back in the tube…”

On page 120 of his order, the judge reasoned, “If the preliminary injunction is denied, Plaintiffs will bear the costs of issuing licenses and other benefits once DAPA beneficiaries  – armed with Social Security cards and employment authorization documents – seek their benefits. He added, “once these services are provided, there will be no effective way of putting the toothpaste back in the tube should Plaintiffs ultimately prevail on the merits.”

Although the deferred action programs will add to social and economic costs, they will also bring additional benefits and revenues. The net effect of socially and economically integrating deferred action recipients into the American community is positive.

DACA and DAPA recipients with work permits will be able to work lawfully as employees, and are likely to increase their tax payments. These programs are expected to generate federal and state income tax revenue.

The programs will also help prevent unscrupulous employers from taking advantage of undocumented workers by paying them low wages and subjecting them to unacceptable working conditions. This should lead to an overall improvement in wages and working conditions for U.S. workers.

In one report, the Immigration Policy Center, American Immigration Council describes the various ways in which executive action on immigration creates a positive impact. It states, “Immigrants – including the unauthorized – create jobs through their purchasing power and entrepreneurship, buying goods and services from U.S. businesses and creating their own businesses, both of which sustain U.S. jobs.” It further states, “The presence of new immigrant workers and consumers in an area spurs the expansion of businesses, which also creates new jobs.”

Judge Hanen’s Ruling Does Not Involve Old DACA

In his February 17 statement, Homeland Security Secretary Jeh Johnson announced:”The Department of Justice will appeal that temporary injunction; in the meantime, we recognize we must comply with it.”

Johnson added, “Accordingly, the Department of Homeland Security will not begin accepting requests for the expansion of DACA tomorrow, February 18, as originally planned. Until further notice, we will also suspend the plan to accept requests for DAPA.”

Under the expanded DACA, more undocumented immigrants or those who fell out of status and arrived in the U.S. as children would qualify for deferred action and receive employment authorization for three years. The new DAPA would extend to undocumented parents of Americans and lawful residents. The implementation of both programs are now on hold.

There is no set timeline for when the Fifth Circuit would issue a ruling on an appeal from the Justice Department. In the meantime, qualified applicants who are interested in applying for deferred action under expanded DACA or new DAPA should continue collecting required documents, in the event that the injunction is lifted.

Judge Hanen’s ruling does not involve the old DACA that was introduced in 2012 by then DHS Secretary Janet Napolitano. Those who qualify for deferred action and work authorization under the old DACA can still apply and re-apply for these benefits.

[UPDATE: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

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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Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

Posted on February 9, 2015 | Comments Off on Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

Several elements must be met for an applicant to be permanently inadmissible to the United States under INA 212(a)(6)(C)(ii), i.e. false claim to U.S. citizenship. A 212(d)(3) waiver may be requested if you are barred on this ground and seek to enter the U.S. as a nonimmigrant. There is no immigrant waiver for this inadmissibility bar.

What are the Potential Defenses to a False U.S. Citizenship Claim? 

A person who is charged with INA 212(a)(6)(C)(ii) may raise a defense as follows:

1) The false claim was made prior to September 30, 1996

False U.S. citizenship claims made before September 30, 1996, when the immigration laws changed, does not permanently disqualify you from obtaining a green card or immigrant visa.

If your false claim to U.S. citizenship was made to a private entity, such as an employer or a bank, prior to September 30, 1996, the lifetime bar does not normally apply.

False U.S. citizenship claims before this date must have been willfully made to a U.S. government official in connection with a visa application, a request for admission to the U.S,. or an attempt to obtain immigration benefits, for you to be deemed inadmissible or removable on this ground. (NOTE: You might still, however, need a waiver for the fraud or willful misrepresentation.)

2) The false claim was not for a “purpose or benefit”  under immigration law or any other federal or state law 

One could argue that the potential benefit is not directly linked to a false U.S. citizenship claim (i.e. the outcome would have been the same regardless of the person’s citizenship status).

One could also argue that the false U.S. citizenship claim was made to avoid a negative outcome, and not to obtain a benefit.

An example is lying about being a U.S. citizen to a police officer to avoid being reported to the immigration authorities (where the arrest would have been made despite citizenship status and where avoiding deportation is not a “benefit”).

3) The false claim was made by someone else 

False claims made by someone else on your behalf, when you were not aware of and did not participate in the claim, should not disqualify you from getting a green card or immigrant visa.

For example, you might have signed the I-9 form, but did not check the box indicating your immigration status or eligibility to work. Rather, the employer checked the box on your behalf without your knowledge (even though, by law, they are not supposed to do this).

USCS may initiate efforts to obtain the I-9 records, whether through a Request for Evidence to you or through a request (subpoena to produce records) to the employer. If your signature appears in the Employee Information and Attestation section of any I-9 form, USCIS could ultimately hold you responsible for the US citizenship box being checked. Typically, it will come down to the adjudicating officer’s discretion, including whether the officer believes your explanation based on your testimony and the underlying circumstances of your unauthorized employment.

4) The false claim was timely and voluntarily retracted

If you timely and voluntarily retract your false U.S. citizenship claim, you will probably not be found inadmissible or removable. For this defense to work, you would have to timely and voluntarily take back your false claim and correct the error before the lie is exposed or is about to be exposed. The retraction has to be in the same proceeding and not in a different proceeding, for example.

What would qualify as a timely retraction depends largely on the facts, but must be done at the first opportunity.

5) The false claim falls under a specific exception

There is a narrow exception to being deportable — due to a false claim to U.S. citizenship — if you were under age 18 when you made the false claim, you permanently resided in the U.S. (with a green card) before you turned 16, each of your natural or adopted parents were U.S. citizens or are U.S. citizens, and you reasonably believed you were a citizen when you made the claim.

6) The false claim referred to being a U.S. national, not a U.S. citizen

There is ambiguity in old versions of Form I-9 (prior to April 3, 2009), which combined a “citizen or national of the United States” into one box. In this situation, the person may argue that the I-9 doesn’t show clearly whether he claimed to be a citizen or national. Immigration law punishes false claims to U.S. citizenship, but not false claims to U.S. nationality.

In these cases, applicants must show they were claiming to be a non-U.S. citizen national as opposed to a U.S. citizen when they completed the I-9.  This inquiry is not necessary when an April 3, 2009, edition or later edition of the I-9 was used because these editions clearly distinguish between a “citizen of the United States” and “non-citizen national of the United States.”

[UPDATE, JUNE 2019] – Different Interpretations of the Law: Does It Matter if the False Claim was Not Intentionally or Knowingly Made? 

In prior guidance, immigration officers, immigration judges, and DHS counsels generally agreed the false U.S. citizenship claim must have been intentionally or knowingly made. Mental capacity and English language skills could be relevant to whether you intentionally or knowingly made a false claim.

But in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019), the Board of Immigration Appeals found the plain language of the statute, INA 237(a)(3)(D)(i), does not require an intent to falsely claim citizenship to trigger this ground of removability. The BIA noted the statute does not contain a “knowing” or “willful” requirement for false claims to citizenship. Following this decision, USCIS began to interpret this to mean the applicant need not intend to falsely claim citizenship to be found inadmissible under INA 212(a)(6)(C)(ii).

The U.S. Department of State’s Foreign Affairs Manual (version 03-27-2018), however, still contains a limited exception based on a December 6, 2014 opinion from the DHS Office of the General Counsel. The FAM states:

(1)  Only a knowingly false claim can support a charge that an individual is ineligible under INA 212(a)(6)(C)(ii).  The individual claiming not to know that the claim to citizenship was false has the burden of establishing this affirmative defense by the appropriate standard of proof (“clearly and beyond doubt”).

(2)  A separate affirmative defense is that the individual was (a) under the age of 18 at the time of the false citizenship claim; and (b) at that time lacked the capacity (i.e., the maturity and the judgment) to understand and appreciate the nature and consequences of a false claim to citizenship.  The individual must establish this claim by the appropriate standard of proof (“clearly and beyond doubt”).

* * *

There is no immigrant visa waiver available under current law for an applicant who is ineligible under INA 212(a)(6)(C)(ii). If you seek to immigrate to the United States, it is especially important to verify whether the bar was properly made. You should raise any potential defenses to prevent adverse consequences due to a false claim to U.S. citizenship.

For more information, read:

Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident (and what you can do to overcome this obstacle)

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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Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

Posted on February 9, 2015 | Comments Off on Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

If you lie about being a U.S. citizen to work, vote in elections, or receive public benefits in the United States, this could stop you from getting a green card or U.S. visa. It can also get you deported from the United States, even if you are already a permanent resident.

A false claim to U.S. citizenship creates a lifetime ban to obtaining permanent residence through a family or employment-based petition.

While a false U.S. citizenship claim seems relatively harmless, it is one of the most serious forms of fraud or willful misrepresentation to obtain immigration benefits. It can also have more dire consequences than a criminal conviction.

If getting a green card or U.S. visa is on your wish list, you should avoid lying about being a U.S. citizen to gain immigration benefits or any benefits under federal or state law.

When Does a False U.S. Citizenship Claim Arise? 

Multiple Situations

False U.S. citizenship claims arise in multiple situations. They include registering to vote in a local, state, or federal election when only U.S. citizens are allowed to do so; claiming to be a U.S. citizen on a job, college, student loan, or mortgage application; and stating that you are U.S. citizen to obtain any benefit for which U.S. citizenship is required.

Most Common Situation: I-9, Employment Eligibility

False U.S. citizenship claims most commonly arise when the non-citizen completes and signs the Form I-9, Employment Eligibility Verification, upon being hired for a job.

All U.S. employers must use the I-9 to document verification of the identity and employment authorization of each new employee (both citizen and non-citizen) hired after November 6, 1986, to work in the United States.

In the Employee Information and Attestation section of the Form I-9, the employee is required to check one of four boxes to show why he is eligible to work in the United States. Section 1 of the Form I-9 (Rev. 03/08/13) states:

I attest, under penalty of perjury, that I am (check one of the following):

  • A citizen of the United States
  • A noncitizen national of the United States (See instructions)
  • A lawful permanent resident (Alien Registration Number/USCIS number) __________
  • An alien authorized to work until (expiration date, if applicable, mm/dd/yy) ________. Some aliens may write “N/A” in this field.

Wrongfully checking that you are a citizen of the United States generally amounts to a false U.S. citizenship claim.

The use of a U.S. citizen’s social security number or other identification, or the use of a fake U.S. birth certificate or a fake social security card (that contains no employment restrictions) is further evidence of a false U.S. citizenship claim.

Employers must record the document title (e.g. driver’s license and birth certificate) on the Form I-9. They may, but are not required, to retain copies of the documents.

Employers must retain a Form I-9 for all current employees. They also have to retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later.

When you seek to adjust to permanent resident status, you need to complete the Form I-485 and file it with U.S. Citizenship & Immigration Services (USCIS). [UPDATE, JANUARY 2018: In prior versions of the I-485, there was no question on whether you have ever misrepresented being a U.S. citizen. But the newer version of the I-485, starting in June 2017, has questions on whether you ever worked without employment authorization, made a false claim to U.S. citizenship, or engaged in unlawful voting.]

Those who are applying for an immigrant visa at the U.S. Consulate must complete and file the DS-260, online immigrant visa application. The DS-260 ask questions about your employment history.

At your I-485 or immigrant visa interview, the adjudication officer could ask whether you have ever made a false claim to citizenship. The officer may also ask about what documents or information you presented to the employer to be eligible to work. This line of inquiry is not very common, but is generally relevant.

Although the employer — not the employee — is responsible for keeping the I-9 records, the officer could request you produce the I-9s from past employers or current employers as a condition for approving your immigration case.

Some USCIS officers might also subpoena the I-9 records from your prior employer or current employer. If the employer is not under investigation for violating I-9 requirements or hiring unauthorized workers, it might refuse to hand over the I-9 records. But many employers simply forward the available records to USCIS upon request, without objection.

If the citizen box is checked on the I-9, the officer may find that you made a false claim to U.S. citizenship and therefore do not qualify for a green card or immigrant visa.

The U.S. Supreme Court, in Chamber of Commerce of the United States v. Whiting, stated that the I-9 and any information contained in it or attached to it may not be used for any purpose other than for enforcing the Immigration Reform and Control Act of 1986 (IRCA) and other specified provisions of federal law. False U.S. citizenship claims did not make a person inadmissible or removable until 1996, which was after IRCA was passed in 1986.

But federal courts, including the Eighth Circuit Court of Appeals, have found that an I-9 form can serve as evidence of a false claim to U.S. citizenship, particularly in removal proceedings.

What are the Possible Consequences of a False U.S. Citizenship Claim? 

Since September 30, 1996, non-citizens who made false U.S. citizenship claims “for any purpose or benefit” under the Immigration & Nationality Act (INA) or any federal or state law are permanently inadmissible. This means you have a lifetime bar to obtaining a family-based or employment-based green card or immigrant visa.

False U.S. citizenship claims not only makes a foreign national inadmissible to the U.S, but also removable from the country. A non-citizen who is in the U.S. and who is found to have lied about being a U.S. citizen to obtain immigration benefits or other benefits under any federal or state law may be placed in removal proceedings before the Immigration Court.

Unlike those who are convicted of crimes involving moral turpitude or those who engaged in fraud or willful misrepresentation to obtain immigration benefits, a person who is found to have made a false U.S. citizenship claim does not qualify for an immigrant waiver to overcome this permanent bar. There is no such waiver available, even if the person has a U.S. citizen spouse who will suffer extreme hardships without his presence in the U.S.

(NOTE: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the Immigration & Nationality Act.  Whether you qualify for the nonimmigrant visa itself is a separate issue.)

* * *

It can be tempting to falsely claim U.S. citizenship when there is no other way to find employment or gain entry into the U.S.  But this could later cause harm to your green card or immigrant visa application if, for example, you marry a U.S. citizen or find a U.S. employer who is willing to petition for you.

If you are already a permanent resident, a false claim to U.S. citizenship can prevent you from establishing good moral character for naturalization and subject you to removal from the United States.

False U.S. citizenship claims do not prohibit foreign nationals from applying for certain types of relief, such as a U visa and asylum (which can lead to permanent resident status) and Form EOIR-42B, cancellation of removal (which results in permanent resident status). But these forms of relief carry strict eligibility requirements. For example, an Immigration Judge may find that a Cancellation of Removal applicant who makes a false claim lacks the “good moral character” necessary to obtain this relief.

If you ever want to become a permanent resident through a family or employment-based petition, your best choice is to avoid making false claims to U.S. citizenship for benefits under immigration law or benefits under federal or state law. The potential defenses are sometimes hard to establish and don’t always work.

For more information, read:

Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

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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What to expect after your marriage-based green card interview

Posted on December 24, 2014 | Comments Off on What to expect after your marriage-based green card interview

A marriage-based green card interview before USCIS is required when a foreign national files a Form I-485 (green card) application based on a U.S. citizen (or permanent resident) spouse’s I-130 immigrant petition for him or her.  A fiancé(e) who enters the U.S. on a K-1 visa, marries the U.S. citizen petitioner, and then files an Form I-485 may also be scheduled for an interview.

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 may 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 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.

Case put on hold because more evidence is needed or negative information is in the file

When more information is needed to issue a decision in your case, the officer has several options.

Request for Evidence

The officer may issue a Request for Evidence (RFE) specifying the additional documents you must submit.  You  will have a set 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.

Site Investigation

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 or ring your doorbell and ask to enter your home so they can see firsthand where you live.  They may look inside your closets, check out your bathrooms and bedrooms, ask about family photos on your walls, etc. to get a sense of whether you really live together as a married couple. They may also ask you questions at the site visit, which you must treat like a formal interview.

While you may refuse to admit the officers into your home, this could raise more suspicion and trigger other types of investigation. If no authorized person is around to admit the officers inside the home, they can keep coming back or take a look around outside the home. In any event, it’s better to have at least one party and preferably both parties, in the marriage, at home when the officer conducts the site visit.

USCIS officers may also talk with your neighbors or your landlord/rental manager to verify whether you live together at your claimed residence.

USCIS does not, as a matter of practice, stake out your home for days. Once they have an opportunity to enter and see where you live, this is usually the end of the site visit. Sometimes they do not come back after the first attempt. Although this can be a daunting experience, go about your life as you normally would.

Source Checks

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 some cases, USCIS may contact your place of employment or school to verify certain information, such as your emergency contacts, marital status and current residence listed. The employer or school, however, does not have to give this information to USCIS, especially if they have privacy policies and rules to follow.

Follow-Up Interview

USCIS may also schedule you for another interview, which could occur as much as 6+ months after the first interview. The follow-up interview is usually to test whether you’re still living together and to question each of you separately. A new interview may also follow after USCIS has conducted a site visit to your home or completed other types of investigation.

When you are asked the same questions individually, the officer will compare your 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 your spouse wear to bed last night?
  • 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, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

Notice of Intent to Deny

In extreme cases, USCIS may issue a Notice of Intent to Deny (NOID) petition because there is evidence of a sham marriage, i.e. a marriage that is entered into solely for or primarily for immigration benefits.

In addition, USCIS may issue a NOID when the foreign national was the beneficiary of a prior spousal immigrant petition that was denied or found to be fraudulent. This is because section 204(c) of the Immigration & Nationality Act bars the approval of any subsequent petition for a beneficiary who is found to have previously entered into a sham marriage for immigration benefits.

Seek Immigration Counsel

If USCIS issues a Notice of Intent to Deny (NOID) the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

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 marriage-based 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.

For more information, read our related article, What to expect at your marriage-based green card interview.

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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What to expect at your marriage-based green card interview

Posted on December 24, 2014 | Comments Off on 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 misrepresentation, public 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 and how was the proposal made; 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.

A joint interview is the best kind. If you have a bona fide marriage, you get an opportunity to show the USCIS officer firsthand how you interact with each other. You also worry less because you get to hear your spouse’s answers to the officer’s questions. Either one of you may also answer the question unless it deals specifically with the other spouse or is posed directly to him or her.

Joint interviews run more smoothly and take less time. When you are interviewed together, it generally means the officer has fewer concerns about the marriage.

Be as natural as you can be, regardless of how nervous you are. Don’t pretend to be the couple you’re not.

Avoid exaggerations and misrepresentations. Lying to a USCIS officer – especially about material facts – to obtain a green card will get you in trouble. If caught, you may be subject to a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). (If you have concerns about your case and feel tempted to lie about certain issues, consult an attorney before you go to the interview.)

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 interpreter, the filing of prior spousal immigrant petitions for the same beneficiary, and other factors may cause the officer to have doubts about the marriage.

The officer may separate the couple on the day of the interview and question each party individually. Each person will be asked the same questions separately. Then the officer will compare the 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 your spouse wear to bed last night?
  • what did you and your spouse have for dinner last night?
  • 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?
  • how did you get to the interview today?

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, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

To learn more about other potential problems, read What to expect after your marriage-based green card interview.

Seek Immigration Counsel

Getting an I-130 approval notice and I-485 welcome notice is the best outcome possible. Short of that, your case could be put on hold for various reasons. But perhaps the worst thing to get is a Notice of Intent to Deny (NOID).

If USCIS issues a Notice of Intent to Deny the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

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.

Working with a reputable attorney from start to finish will help reduce problems and get your case approved. It’s best to consult an attorney before you file the marriage-based 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 mistakes cannot be undone.

For more information, read our related article, What to expect after your marriage-based green card interview.

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

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