Tag Archives: I-485

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.

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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Changes to the Visa Bulletin: Understanding the Two Filing Charts

queue

On October 1, 2015, the U.S. Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).  The Bulletin revisions are meant to improve the backlog in the family-sponsored preference and employment-sponsored preference categories, where the demand for immigrant visas can – and often do – exceed the supply each year. In some categories, the wait for a visa to become available is as long as 5 to 10+ years.

Advantages with the New System

The priority date marks the applicant’s place in the visa queue. In the family-based categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, it’s the date the U.S. Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the Form I-140, Immigrant Petition for Alien Worker (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

The AFAD chart is consistent with previous Visa Bulletins under the old system. AFADs are the cut-off dates that determine when an immigrant visa becomes available to Form DS-260, Immigrant Visa applicants or Form I-485, Adjustment of Status applicants, depending on their priority date, preference category, and country of chargeability.

The DFA chart is part of the new system and was first introduced in the October 2015 Visa Bulletin. DFAs are the cut-off dates that determine when Immigrant Visa applicants – depending on their priority date, preference and category – should receive notice from the DOS’ National Visa Center (NVC) instructing them to submit their documents for consular processing.

Each month, U.S. Citizenship & Immigration Services (USCIS) also determines whether eligible applicants in the U.S. may use the DFA chart, instead of the AFAD chart, for filing their I-485 applications. Current information is posted on the USCIS website at www.uscis.gov/visabulletininfo. When USCIS finds there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that I-485 applicants may use the DFA chart in the Visa Bulletin.

The DFAs are later than the AFADs, by as much as one year or so, as shown in the November and December 2015 Visa Bulletins. Example: In the December 2015 Visa Bulletin, the DFA for the family-sponsored, second preference, F2A category is March 1, 2015 (“01MAR15”). Meanwhile, the AFAD for this same category is June 15, 2014 (“15JUN14”). If the applicant’s priority date is April 30, 2015, or otherwise earlier than the DFA, he may file the I-485 with USCIS in December 2015, even though an immigrant visa is not yet available. Under the old system, the applicant’s priority date must have been June 14, 2014, or otherwise earlier than the AFAD, before he could file the I-485 in December.

The new system allows Immigrant Visa applicants and sometimes Adjustment of Status applicants to get a head start on filing for permanent residence. They may apply for an immigrant visa or adjustment of status even before their priority dates become current and a visa actually becomes available to them, as shown in the AFAD chart.

When the Immigrant Visa applicant’s priority date is earlier than the cut-off date in the DFA chart, he may submit required documents to the NVC, following receipt of notice containing filing instructions.

If USCIS determines the DFA chart may be used in a particular month, it will accept I-485 adjustment applications when the applicant’s priority date is earlier than the cut-off date in the DFA chart. Applicants with pending I-485s may also file for and receive an employment authorization document (EAD) and advance parole (travel document).

Those who are stuck in the employment-based backlog have greater job mobility with an EAD that is based on a pending I-485. In particular, once an employment-based I-485 application is pending 180 days or more, “portability” rights generally allow the individual to change employers, as long as the new job is in the same or a similar occupation.

Limitations of the New System

Unless otherwise stated on the USCIS website, individuals seeking green cards within the U.S. must normally use the AFAD chart for determining when they may file their I-485 applications. When USCIS finds there are fewer immigrant visas available for the fiscal year than there are known applicants for such visas, I-485 applicants must use the AFAD chart, instead of the DFA chart, to file their applications.

All applicants still have to wait for the AFAD to become current before the green card or immigrant visa can be issued.

USCIS will not adjudicate or approve the I-485 until the priority date becomes current or is earlier than the cut-off date in the AFAD chart. Even if the applicant filed early under the DFA chart, it could be another year or so before he receives an I-485 decision or green card. A final decision on Immigrant Visa applications also cannot be taken until the AFAD becomes current.

When applicants file their I-485 or Immigrant Visa application early under the DFA chart, material changes may occur while they are waiting for the AFAD to become current. They might get arrested, charged and convicted of a crime that affects their eligibility for a green card. Waivers are available for only certain criminal-related grounds of inadmissibility in only some cases.

Furthermore, failure to report material changes in one’s case to USCIS or the U.S. Consulate may be construed as fraud or willful misrepresentation to gain immigration benefits. This is a lifetime bar to obtaining permanent residence. Fraud/misrepresentation waivers are available only to applicants with a U.S. citizen or permanent resident spouse or parent who would suffer extreme hardship if the applicant was not admitted to the U.S.

Generally, all I-485 applicants must submit a Form I-693, Report of Medical Examination and Vaccination Record, completed by a designated U.S. civil surgeon. A completed Form I-693 is valid for only 12 months from the time it is submitted to USCIS. Applicants must also submit the Form I-693 to USCIS within one year of the immigration medical examination.

If the Form I-693 is filed with the I-485 under the DFA chart, it may expire by the time the AFAD is current and USCIS can issue a final decision on the I-485. To avoid re-doing the immigration medical examination, I-485 applicants might want to wait until receiving a Request for Evidence (RFE) or until the I-485 interview to submit the Form I 693.

The revised procedures in the Visa Bulletin does not change eligibility requirements for I-485 and Immigrant Visa applicants. For example, individuals must still be in lawful nonimmigrant status (e.g. H-1B or F-1) when they file an I-485 application in the family-sponsored or employment-based category. Those who are out of status in the U.S. normally do not qualify for adjustment of status. Instead, they must depart the U.S. to apply for an immigrant visa.

If they depart the U.S. after accruing more than 180 days to less than 1 year of unlawful presence, they trigger a 3-year bar to re-entry. The bar is 10 years if the unlawful presence lasted 1 year or more. To be excused from the 3/10 year bar so they may obtain an immigrant visa before the 3/10 years pass, they must apply for and receive an I-601 waiver. Getting the waiver requires them to show a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted to the U.S.

A pending I-485 generally provides “authorized stay” even if the person falls out status – as long as the I-485 is non-frivolous and was timely and properly filed with USCIS. But when possible, it is best to maintain or extend lawful nonimmigrant status (e.g. H-1B or L-1) until USCIS approves the I-485. Failure to maintain status leaves the person with no safety net if USCIS later decides to deny the I-485 or revoke the approval of the underlying visa petition.

The Visa Bulletin Matters to Green Card Applicants in the Family-Sponsored and Employment-Based Preference Categories, But Not to Immediate Relatives of U.S. Citizens 

The Immigration and Nationality Act (INA) limits the number of immigrant visas that may be issued, each year, to foreign nationals seeking to become lawful permanent residents in the family-sponsored and employment-based preference categories. Visas in these preference categories are not always available.

When demand exceeds supply of visas for a given year in a given category or country, a visa queue (backlog) forms. The DOS distributes the visas based on the applicant’s priority date, preference category, and country of chargeability.

When the priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, prospective immigrants can receive a final decision on their I-485 or immigrant visa applications.

If the Visa Bulletin shows “U” in a category, immigrant visas are temporarily unavailable to all applicants in that preference category and/or country of chargeability.

Immigrant visas for “immediate relatives” of U.S. citizens, however, are unlimited. An immigrant visa is always available to:

  • Spouses of U.S. citizens
  • Unmarried, minor children (under age 21) of U.S. citizens
  • Parents of adult U.S. citizens (age 21 or older)
  • Widows or widowers of U.S. citizens if the U.S. citizen filed a Form I-130 immigrant petition before his or her death or if the widow(er) files a Form I-360, self-petition within 2 years of the citizen’s death

When Possible, It’s Better to File When the DFA Is Current, Instead of Wait for the AFAD to Become Current

You don’t have to file your I-485 or Immigrant Visa application when the DFA is current. But there are several advantages to getting an early start. Filing under the DFA chart helps to ensure cases are ready to be approved when the AFAD becomes current.

Like AFADs, DFAs can roll back instead of move forward. Still, filing early provides some protection against visa retrogression. This is when a priority date that is current one month will not be current the next month, or the cut-off date will move backwards to an earlier date. Visa retrogression occurs when the visas have been used up or is expected to run out soon in the fiscal year. A new supply of visa numbers become available at the start of the fiscal year, October 1, but the priority dates might still take a while to return to where they were before retrogression.

While the new system does not involve any substantive changes in immigration law, it includes procedural changes that help to ease the backlog and provide some advantages to prospective immigrants.

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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 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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