MARRIAGE BASED GREEN CARD ISSUES
One question I get a lot, is what the USCIS looks for when considering the legitimacy of a marriage. The reason that’s important, is that a marriage entered into solely for the basis of gaining immigration benefits is unlawful.
A sham marriage has been defined by the BIA as a marriage which may comply with all the formal
requirements of the law but which the parties entered into with no intent, or “good faith”, to live together
and which is designed solely to circumvent the immigrations laws. Sham marriages are not recognized for
immigration purposes. See Matter of Patel , 19 I&N Dec. 774 (BIA 1988).
The USCIS had a policy manual, which it “retired” but it provides valuable insight into what the agency is looking out for when it comes to a marriage. Some of these things tread dangerously close to unlawful discrimination, but it is important to be aware of them, nonetheless.
- Large disparity in age. What is large? Up to the officer, I guess.
- Inability of petitioner and beneficiary to speak each other’s language.
- Vast difference in cultural and ethnic background. What is vast? Up to the officer, I guess.
- Family and/or friends unaware of the marriage.
- Marriage arranged by a third party. Yet arranged marriages are lawful…
- Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States. So the beneficiary got thrown into removal proceedings and then immediately (what does immediately mean?) got married.
- Discrepancies in statements on questions for which a husband and wife should have common knowledge. Who decides what someone should know? A random USCIS officer.
- No cohabitation since marriage.
- Beneficiary is a friend of the family. (This is not unusual)
- Petitioner has filed previous petitions on behalf of aliens, especially prior alien spouses.
The presence of one or more of these factors does not automatically mean the case will be denied. There may be a reasonable explanation, but do be prepared to explain. Essentially applicants have 20 minutes to prove to a stranger that their relationship is real, and the USCIS officers have been trained to view all marriages with suspicion. This suspicion is only heightened when there are one or more red flags present.
What happens after denial:
- USCIS will send a written explanation of the denial, including the reason(s) for the decision
- Depending on the reason(s) for the denial, you may be able to appeal the decision, file a motion to reopen or reconsider, or refile the application
- It’s important to act quickly and seek the assistance of an immigration attorney to explore your options and decide on the best course of action
Appealing a denial:
- Depending on the reason(s) for the denial, you may be able to appeal to the Administrative Appeals Office (AAO) or Board of Immigration Appeals (BIA)
- The appeal process can take several months or even years to complete, and there is no guarantee of success
- It’s important to provide new evidence or arguments to address the reason(s) for the denial in your appeal
Motion to reopen/reconsider:
- This is a request to USCIS to review the decision based on new or additional evidence that was not available at the time of the original decision
- You typically have 30 days from the date of the decision to file a motion to reopen or reconsider
- It’s important to provide strong evidence and arguments to support your motion, as USCIS may deny the request without a hearing
Refiling the application:
- Depending on the reason(s) for the denial, you may be able to refile the application with new or corrected information
- You’ll need to pay the filing fee again, and there is no guarantee of approval
- It’s important to work with an immigration attorney to identify any issues with the original application and address them in the new filing.
The #1 most devastating thing is that the beneficiary can be placed in removal (deportation) proceedings! This can cost thousands of dollars to defend against, and might result in a permanent ban from the United States! That’s why being approved the first time is so important.
Do I need an immigration attorney for my marriage-based green card?
Obtaining a marriage-based green card in the United States is a complex and lengthy process with a lot of traps and pitfalls. It requires submitting a considerable amount of paperwork, completing interviews, and complying with various legal requirements. Hiring an experienced immigration attorney can make the process easier and increase the likelihood of a successful outcome.
- Knowledge of Immigration Law: Immigration law is complex and constantly changing. An experienced immigration attorney will have a thorough understanding of the law, including changes to policies and procedures. They can help you navigate the complex system and avoid common mistakes that could result in your application being denied.
- Experience with USCIS: A skilled attorney will have a deep understanding of the U.S. Citizenship and Immigration Services (USCIS) and how it operates. They can help you prepare your application in a way that is consistent with USCIS requirements, increasing the chances of success. Moreover, an attorney can ensure that you are aware of any updates or changes to the USCIS process.
- Tailored Legal Assistance: Every green card application is unique, and an experienced attorney can provide tailored legal assistance. They can help you identify your strengths and weaknesses, suggest strategies to improve your case, and address any issues that may arise during the application process.
- Assistance with Supporting Evidence: A successful marriage-based green card application requires substantial evidence demonstrating the legitimacy of the marriage. An attorney can help you obtain the appropriate documentation and guide you through the process of preparing and presenting the evidence.
- Representation at Interviews: The final step in the green card process is the interview with USCIS officials. An attorney can accompany you to the interview and ensure that you are prepared to answer any questions that may be asked. They can also address any concerns that the USCIS official may have about your application.
- Appeals Process: If your green card application is denied, you have the right to appeal the decision. An experienced immigration attorney can guide you through the appeals process, increasing your chances of a successful outcome.
- Peace of Mind: Hiring an immigration attorney can provide peace of mind during a stressful time. They can answer any questions you may have about the process and help alleviate any concerns you may have.
I offer a free consultation for your marriage-based immigration case, so do not hesitate to reach out to me.