Articles of Interest

I am often asked by my clients what triggers additional scrutiny by the USCIS when an application for lawful permanent residence based on marriage is made.  As many of you may know, for a marriage to be a basis for U.S. immigrant benefits, it must be legally valid, not against public policy, and have been entered into out of a bona fide desire to join two lives together.  The marriage cannot have been entered into for the sole motive of obtaining immigration benefits.

The following is an unofficial list of factors utilized by USCIS officers when determining the validity of a marriage.  It was compiled based on my own experience of representing international couples throughout the United States as well as discussions with USCIS officers and colleagues in offices throughout the country.  While meeting one or more of these “red flags” does not mean your application will be denied, it is important to realize that you and your spouse may be subject to additional scrutiny and investigation.At a minimum, voluminous evidence to document the marriage’s good faith should be gathered and presented at your green card interview.

• Sloppy dress or appearance: One wonders why the way you dress should have any bearing on the validity of your marriage.  It is recommended however that you and your spouse dress neatly and professionally when attending your USCIS interview.
• Either spouse is past marriage age: While most of us would agree that there is no age limit on love, the USCIS seems to look with a jaded eye when the U.S. citizen or foreign spouse is in their 50s or older.
• Arrest records of theU.S. citizen or foreign spouse: Although it is the foreign spouse applying for lawful permanent residence, it is important to realize that the U.S. citizen spouse is also getting evaluated.  There have been reports of U.S. citizen spouses arrested at USCIS interviews because of outstanding arrest warrants.Please keep this in mind and always consult an attorney should you or your spouse have a criminal history of any kind.
• Age differential: A large age difference of 10+ years between you and your spouse will trigger this “red flag”.
• Inability of the couple to communicate with each other.
• Different addresses on your drivers licenses: I have had USCIS officers request to see the couple’s drivers licenses during the interview itself in order to verify that the addresses were the same.
• Phone tips or letters from concerned citizens: I am told that a surprising number of cases are placed under investigation because neighbors or other concerned citizens write to the USCIS denouncing a marriage as fraudulent.
• Incorrect answers to questions at the interview: It is important that you and your spouse go over all the information submitted to the USCIS, with particular attention to the responses given on the G-325 biographical forms.
• Previous immigration petitions filed by the U.S. citizen spouse on behalf of former spouse
• Interracial marriages and foreign spouses from the country of Nigeria: Believe it or not, this is the #1 red flag for marriage fraud relied upon by USCIS officers.  Other countries with a high incidence of immigration fraud are theDominican Republic and Pakistan

Other factors that may trigger heightened scrutiny and investigation by USCIS officers include:

• Marriage contracted where the parties have known each other for only a short time
• Vast class or economic differences between the couple
• Marriage which was NOT arranged by the parties’ families, where the couple comes from a country where arranged marriages are the norm
• Any marriage performed before a justice of the peace, without even a small wedding or reception
• Marriages where one spouse works the night shift, and the other works the day shift
• Marriages in which the couple does not live together
• Family or friends unaware of the marriage
• Marriage arranged by a third party
• Marriage entered into while the foreign spouse is “in proceedings” or after receipt of “bag and baggage” letter
• Foreign spouse is a friend of the family

Effective immediately after the U.S. Supreme Court decision holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, immigration visa petitions filed on behalf of a same-sex legally married spouse shall be reviewed in the same manner as those filed on behalf of an opposite-sex spouse.

Practically, this means that a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national may now sponsor his or her spouse for a family-based immigrant visa.  U.S. citizens may also file for a K-1 Fiance Visa on behalf of their same-sex fiance.  Further guidance from the USCIS is expected as it implements regulations to comply with the U.S. Supreme Court decision.

Work Authorization

You may apply for employment authorization from the USCIS while awaiting adjudication of your application for lawful permanent residence through Adjustment of Status. While it is not an automatic right, it is routinely granted by USCIS offices throughout the country.

If you already have employment authorization incident to your nonimmigrant visa (e.g. as a H1-B visa holder), you may still apply for additional employment authorization just in case your current non-immigrant visa expires before your USCIS interview. The work authorization is usually granted in one-year increments.

Advance Parole to Travel Abroad

After you file your adjustment of status application, you MAY NOTleave the United States without first obtaining permission from the Department of Homeland Security to re-enter the country. The DHS will consider anyone who departs from the United States without permission to have abandoned his application for lawful permanent residence.

As a practical matter, you should simply plan not to leave the United States after filing your application with the USCIS unless absolutely necessary. It is important to keep in mind that anyone who has spent more than 180 days unlawfully present in the United States after April 1, 1997, MUST NOT LEAVE the United States before the USCIS adjudicates his adjustment of status application. A departure from the U.S. by a person subject to this unlawful presence law will trigger three or ten years bars to admissibility, which could lead to denial of the adjustment of status application and refusal of entry into the United States.

If you feel that you must travel abroad, the only way to do so without abandoning your adjustment application is to apply to the DHS for “advance parole.” This is actually a request for the DHS to give you permission, in advance of your departure, to re-enter the United States. For many years, the INS rarely granted advance parole to adjustment applicants unless they could demonstrate a compelling need. In recent years, the USCIS has become much more generous and grants it for “any bona fide business or personal reason.” However, the type of evidence required by USCIS offices throughout the country varies. It is also best for you to consult with an attorney before you submit a request for advance parole.

It is important to realize that an adjustment of status is discretionary. It is possible for a person who is technically eligible for an adjustment of status to still be denied based upon the exercise of discretion by the USCIS. The most common reason why an adjustment of status is denied is where the alien abused the non-immigrant process.

Under the 30-60-90 day rule, a person who applies for a change of visa status (including adjustment of status) within 30 days of entering the U.S. is presumed to have acted in bad faith. In other words, the USCIS will presume that such a person had preconceived intent to make the change before entering the U.S. and used an easier visa to avoid the normal screening process conducted by U.S. consulates abroad.

If the adjustment of status application is made between 30 to 60 days of entering the U.S., there is no presumption made. However, there will be a strong suspicion that the person acted in bad faith and heightened scrutiny shall apply.

If the adjustment of status application is made after 60 days of entering the U.S., the presumption will be that the person acted in good faith. However, previous visa history will nevertheless be examined to determine whether any abuses of the immigration process may have occurred in the past.

How does this all matter for international couples? Should you enter the U.S. on, for example, a tourist visa, and meet the love of your life, I recommend that you wait AT LEAST 60 days from the date of entry into the U.S. before getting MARRIED. Even though you never had the intention marry when you entered the U.S. on a VWP or tourist visa, it is the appearance of pre-conceived intent that will trigger USCIS scrutiny. To play it safe, always wait AT LEAST 60 days from the date of entry to marry and apply for lawful permanent residence through Adjustment of Status.