Tag Archives: bona fide marriage

Avoid the NOID by Supplementing the Record and Responding to RFE

USCIS will issue a Notice of Intent to Deny a petition (e.g. Form I-130 or Form I-140) when it has derogatory information or has evidence the beneficiary is ineligible for the benefit sought. A common example is when there is insufficient evidence of a bona fide marriage between the U.S. citizen (or permanent resident) petitioner and the foreign national beneficiary seeking marriage-based permanent residence.

A NOID is one last opportunity to rebut adverse findings that support a denial of the petition. To avoid a NOID, the petitioner should proactively supplement the record and/or file a full and timely response to USCIS’ Request for Evidence (RFE), if one is issued.

In a July 13, 2018 Policy Memorandum, titled Issuance of Certain RFEs and NOIDS; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), USCIS officers are given full discretion to deny applications and petitions without first issuing an RFE or a NOID, when appropriate. This includes cases when (a) there is no legal basis to receive the benefit sought and (b) the required initial evidence is not submitted with the petition or application.

RFE and NOID: Similar, But Not the Same

Request for Evidence

An RFE is issued when the officer is uncertain whether or not the request should be approved and needs more evidence to make a decision.

The Policy Memorandum states that in an RFE, USCIS should (a) identify the eligibility requirement that has not been established and why the evidence submitted was insufficient, (b) identify any missing evidence required by statute, regulation or form instruction, (c) identify examples of other evidence that may be submitted to establish eligibility; and (d) request that evidence.

The normal timeframe to submit a response to an RFE is 87 days. A follow-up RFE (or a NOID) might be in order if the response opens up a new line of inquiry or raises eligibility issues that were not considered during initial case review. USCIS may also deny the application or petition if all the requested evidence is not submitted, especially when this prevents a material line of inquiry.

Notice of Intent to Deny

A NOID is given when the officer is leaning toward a denial, but the applicant, petitioner or requestor is unaware of the negative information or its impact on eligibility for the benefit sought.

The Policy Memorandum states, “When a preliminary decision has been made to deny an application or petition and the denial is not based on lack of initial evidence or a statutory denial…the adjudicator must issue a written NOID to the applicant, petitioner, or requestor providing up to a maximum of 30 days to respond to the NOID.”

A NOID is much more serious than an RFE. Unlike an RFE that lists exactly what evidence is missing, a NOID describes derogatory information to support a denial. You have to figure out what evidence and explanations to submit to rebut all the allegations in the NOID and prevent a denial. You also have a shorter time frame (e.g. 30 days instead of 87 days) to address complicated issues. NOTE: When the decision is served by mail, there is an additional 3 days to file the response under 8 CFR § 103.8(b).

Supplement the Record and/or File a Full and Timely RFE Response to Avoid the NOID

While the case is pending — and before a Request for Evidence or Notice of Intent to Deny is issued — it is sometimes appropriate to supplement the record with additional evidence.

In a recently approved I-130 petition and I-485 (green card) application case, I counseled my clients to submit written affidavits addressing discrepancies between their oral testimonies at the green card interview with USCIS. Among the discrepancies were very different accounts of the marriage proposal, including where, when and how it occured. In their follow-up affidavits, they provided credible explanations for the differences in their answers.

Furthermore, at the time of the interview, they were living in separate apartments due to financial reasons, cultural factors, and logistical considerations. I advised them to submit rental applications showing they were actively seeking to live together. The supplemental evidence was sent to USCIS a month after the interview.

Four months later, the couple finally moved in together after securing their own apartment. We submitted their joint lease agreement and newly filed joint tax return demonstrating the bona fide nature of their marriage.

Seven months after receiving this supplemental evidence, USCIS issued a Request for Evidence asking for more evidence of a shared life together. The RFE listed examples such as lease(s) showing the same residence, documents showing shared finances and obligations, pictures of their wedding, and sworn affidavits from others with personal knowledge of the validity of the marriage.

Within the 87-day timeframe, we provided a full response including the couple’s new joint lease agreement, shared car insurance and health insurance policies, life insurance record listing one party as the other’s primary beneficiary, letters from neighbors confirming they live together, family photographs, and affidavits from relatives describing their good-faith marriage.

A month after receiving the Response to RFE, the Service approved the I-130 petition. After the updated Form I-693 (Report of Medical Examination and Vaccination Record) was provided, upon request, USCIS soon approved the concurrently filed I-485 application for permanent residence.

The couple had celebrated their second wedding anniversary by the time the I-485 application was adjudicated. A 10-year green card (instead of 2-year conditional card) was issued and there will be no need to file a Form I-751 petition to remove conditions on residence.

Despite the discrepancies at the interview and their living in separate residence for several months, my clients got their case approved by proactively supplementing the record and submitting a full and timely response to the RFE. These actions were key to avoiding a Notice of Intent to Deny, which is just one step short of a denial.

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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 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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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. Normally, 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. Under 8 CFR § 103.8, there is an additional 3 days to file the response if the notice was served by mail.

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