U.S. law and policy attempts to root out and stop fraudulent marriages that are made solely for immigration purposes. This article focuses on two aspects of that effort: 1) the interview conducted by USCIS subsequent to a foreign-born applicant filing for permanent resident status or to remove conditional status and 2) the Notice of Intent to Deny (NOID), which is the document normally issued by USCIS when it intends to deny an immigrant petition due to a preliminary finding that the marriage is fraudulent.
USCIS reviews marriage-based immigrant petitions and petitions for removal of conditional resident status based upon a preponderance of the evidence standard.1 More simply stated, it requires the applicant to establish that the marriage is bona fide by more than 50% of the evidence, which is more likely than not the marriage is legitimate. If the USCIS officer, after having reviewed all the evidence, believes that the marriage is not made for the purpose of evading U.S. law then permanent resident status will be granted.
The determination of marriage fraud occurs initially during an interview with a USCIS officer that usually takes 20-25 minutes. It is scheduled 4 to 16 months after the application is filed. The length of time an application is pending varies significantly due to USCIS priorities, which are exceedingly difficult to predict. The interview starts with the spouses taking an oath in front of an USCIS officer, promising to tell the truth, followed by review of the applications filed for permanent residency. This typically includes a short discussion of issues such as voting in U.S. elections (reserved for U.S. citizens), criminal and health records, visas and maintenance of status,1 and likelihood to become a public charge. After those preliminary matters are completed, the interview turns to a discussion about the relationship and marriage, and provision of documentary evidence of the validity of the marriage.
There are certain aspects of the marriage that will always be discussed, such as how the applicant met his or her spouse, the proposal, and who attended the wedding. Immigration law requires USCIS to focus on the inception of the marriage (meaning wedding date), so events nearer the wedding date have an elevated importance. Nevertheless, the questions are sometimes far ranging and across the spectrum of the relationship, so they may also include when the applicant met his or her spouse and what they had for dinner last night. It is the USCIS officer’s discretion to follow a line of questioning on peripheral matters although that is rarely the focus. Occasionally, the interview stretches beyond the normal 20-25 minutes but separating of spouses to compare answers is rare in first interviews, with the exception of some cases where the couple married while the foreign national spouse was already in removal proceedings before the Immigration Court.
The results of the interview are not necessarily revealed to the couple immediately. USCIS officers sometimes inform the applicant that permanent resident status is granted, or the conditions removed, but not always; and it is not necessarily indicative of a problem if the officer does not announce the outcome. In fact, as a matter of policy, USCIS officers are required to issue a printed “Notice of Continuance” containing their name and date of interview to each applicant. This notice indicates that the case is being held for review and to allow for up to 120 days for decision before making an inquiry. In some circumstances, the USCIS officer wants additional time to review the file or perform security checks, while other times the delay may reflect that the USCIS officer wants to see additional evidence of the bona fides of the marital relationship. USCIS officers do have the authority to issue a “Request for Evidence” if the application has a perceived flaw such as insufficient documents evidencing cohabitation, which may be successfully responded to by supplementing the record with joint bills, utility and medical statements, photos of vacation, bank records, leases, and affidavits within a specified time frame, usually given up to 84 days and 3 days for mailing. There are circumstances where the USCIS officer who conducted the interview is reassigned and that is the basis for delay. However, there are circumstances where a delayed decision reflects the USCIS officer’s concern about the validity of the marriage, in which case the delay is caused by a marriage fraud investigation.
USCIS uses various methods to investigate a marriage it views as entered into solely for the purpose of obtaining an immigration benefit. Searching social media accounts or other public records is a common short-term investigative tool. Those records may reflect that the spouses live apart or are dating other individuals. USCIS also may delay a decision for 2-3 years under the assumption that fraudulent marriages fall apart over time, at which point USCIS may call the applicant and spouse for a second interview and separate them to compare their answers for consistency. Finally, USCIS may send investigators to the marital home to view the premises for signs of cohabitation or to speak to neighbors, landlords, and family.
The result of all these efforts may be an allegation that the marriage was fraudulent and made by the applicant to evade the immigration laws. If so, USCIS will mail out a written explanation called a Notification of Intent to Deny (NOID), which gives the applicant 30 days to respond with additional evidence and argument. The NOID is issued to the U.S. citizen or permanent resident sponsoring spouse because it was he or she who originally filed the application with USCIS for issuance of an immigrant visa or I-130 petition. The I-130 petition is the portion of the package linked to the requirement that the marriage be bona fide.
The law requires USCIS to produce all negative information forming the basis for the marriage fraud determination in the NOID to give the applicant an opportunity to rebut it. However, USCIS is sometimes allowed to summarize this evidence, which puts the applicant at a severe disadvantage because USCIS does not necessarily present the evidence accurately. The law also requires that USCIS offer evidence of marriage fraud that meets or exceeds the legal threshold, which is more than a preponderance of the evidence. It is only when USCIS has met this burden that the applicant is obliged to rebut the evidence of marriage fraud with new evidence. The ability of an applicant to find new evidence if the alleged fraudulent marriage occurred years ago becomes more difficult with time such that no new evidence of marital bona fides is available. In this case, it is only possible to attack the logic of the NOID, which can be done as further explained below.
The NOID is issued for two possible reasons on a date normally years removed from the date of interview. USCIS may believe it has accumulated enough evidence to deny the visa petition because USCIS believes the marriage is fraudulent. Alternatively, USCIS may believe that the applicant has failed to establish that a marriage is bona fide through appropriate documentary evidence. These are two distinct reasons. If the NOID is issued because the applicant has failed to provide sufficient evidence, the matter is addressed by filing a response that includes additional and updated evidence of the cohabitation of the parties, such as recent bank statements, leases, tax returns, and photos. It is also helpful if affidavits (witness statements) are included from the petitioning spouse’s parents, siblings, or close friends. If the NOID is issued because USCIS believes the applicant is involved in a fake marriage, then it becomes more complicated because new evidence of the bona fides is often not enough.
It is hard to tell these two reasons apart in a NOID because of the way these are drafted. The legal templates that are used often reference marriage fraud even when its USCIS’ intention to only seek additional evidence of the marital bona fides. The deciphering of the NOID is a complicated endeavor requiring a depth of understanding of USCIS practices and case law. Understanding the bases of the NOID, therefore, may require experience of a seasoned lawyer.
Additionally, if an applicant previously filed a permanent resident case through a former spouse that was withdrawn or denied, this prior marriage may still be used as evidence of marriage fraud in any subsequent application for permanent residency, even if the prior marriage occurred a decade or more ago. The law encourages USCIS to look at prior marriages because evidence of marriage fraud bars approval of any future immigrant visa petition. However, the bar only applies where there is substantial and probative evidence of marriage fraud in the past, a standard of proof that is higher than a 50% probability. Thus, USCIS will look at prior marriages where the applicant had withdrawn the petition or even prior marriages where no petition was filed to ascertain whether the marriage was fraudulent.
The most successful response to the allegation of marriage fraud are based on logic and a thorough knowledge of legal standards. It is necessary to identify weaknesses in the NOID by comparing the evidence of fraud to the other evidence to evaluate whether USCIS has ignored contradictory or more reliable evidence. The NOID must also be reviewed for allegations that are speculative rather than drawn from reasonable inferences. The NOID needs to be reviewed for skewing of the evidence against the applicant in an arbitrary or unfair manner, which might include USCIS summarizing evidence in a manner that fails to reveal the whole circumstance or background. A successful rebuttal of an allegation of marriage fraud attacks the NOID by logically rebutting as many allegations of fraud as possible. This effort normally requires knowing the evidence better than the USCIS officer who authored the NOID and having the ability to identify countervailing evidence and illogical assumptions.
In order to know the evidence better than the USCIS officer, the applicant needs to have a complete record of what was submitted in the current marriage application and in previous marriages submitted to USCIS. It is possible to get a copy of the USCIS record through a process called Freedom of Information Act (FOIA) Request. However, this process is flawed because it takes time and USCIS excludes evidence that reveals USCIS investigatory tactics and techniques as well as evidence that relates to the United States citizen or permanent resident spouse, which is protected by privacy laws. It is important, therefore, that complete copies of all applications for permanent residents and supporting evidence, even those involving prior marriages, be preserved by the applicant.
The law states the marriage be valid from its inception, which means the focus is often on events surrounding the wedding day. However, events that are years removed from the date of marriage are also often referred to in NOID. A public record that establishes that the applicant and prior spouse resided at different addresses three years after marriage is not necessarily evidence of marriage fraud if the applicant concedes that in the interim he or she separated from the prior petitioning spouse. Of course, the concession must be consistent with the records possessed by USCIS from interviews and applications. It is USCIS’s burden to prove marriage fraud, so events cited as evidence of marriage fraud that are far removed from the marriage date, are not necessarily the best evidence. The applicant can concede separation from the prior petitioning spouse in a prior marriage that is years removed from the wedding without necessarily admitting to marriage fraud.
Witness statements, especially those of former or current spouses, can be especially difficult to challenge. If the USCIS officer has relied upon summarized interviews of witnesses or a former spouse, those statements must be analyzed, and their weaknesses highlighted. The best response is usually rooted in how the statements were obtained, whether the statements are accurate, and whether they contradict other evidence. Quite often USCIS will omit aspects of an interview or summarize the contents in a manner that fails to reflect inconsistencies. Thus, it is crucial that the whole record is available for review. For example, a witness statement used by USCIS in the NOID taken from a neighbor whose identity is undisclosed may be subject to significant criticism. The response can highlight that the witness failed to reveal how the neighbor knew the applicant and petitioning spouse, the frequency of the witness’s meetings or observations, the times observations were made, and the time frame the witness was a neighbor. The failure of the NOID to identify such background information makes it less reliable and diminishes its importance. The law requires that evidence be reliable, which means it becomes less meaningful if the information is vague or manifestly incorrect. Furthermore, if the evidence relied upon by USCIS is intentionally or negligently presented such that contradictory evidence by the same witness is not revealed, then those documents are not reliable and it is usually contrary to law for USCIS to rely upon them as a bases for concluding marriage fraud.
USCIS often speculates in the NOID about the importance of evidence. USCIS is allowed to draw reasonable inferences from facts, but they cannot arbitrarily make assumptions that are unreasonable. This is a common mistake found in many NOIDs. For example, an applicant and spouse might have made errors on the forms they submitted, which do not fully accurately reflect their past addresses, or the petitioning spouse may not have revealed a prior marriage. These acts are not necessarily evidence of marriage fraud but USCIS will often refer to them in a NOID as though they are definitive proof. These errors are certainly evidence of sloppiness, but USCIS must take the additional step to explain how such acts furthered the fraudulent marriage scheme. Furthermore, the scheme identified by USCIS must be consistent with other evidence and cannot be based upon speculation that has little factual bases. The failure to reveal addresses is only relevant if a prior address establishes the applicant lived apart from his or her spouse during a period when the applicant stated they lived together. The reluctance of the petitioning spouse to reveal a former spouse is most likely irrelevant to the applicant’s marriage if that former marital relationship was bona fide. Unless USCIS identifies how mistakes further a marriage fraud scheme, it cannot meaningfully rely upon them as evidence of marriage fraud. Thus, USCIS failures to develop leads and support allegations of marriage fraud with facts is speculation that cannot be relied upon by USCIS to support an allegation of marriage fraud.
A well-drafted response attempts to diminish the importance of each piece of evidence relied upon to establish marriage fraud in the NOID. It is a painstaking process, but the benefits are often remarkable. If the key components relied upon by USCIS in the NOID, are proven speculative, unreliable, or contradictory, in whole or in part, the rationale for determining marriage fraud is compromised. If adequately compromised and diminished, the response to the NOID will prove that USCIS has not met its initial burden to prove by substantial and probative evidence that a marriage is fraudulent. And if USCIS has not met this initial burden, USCIS must then approve the immigrant visa petition and the applicant’s application for permanent residency, so long as there exists sufficient evidence of the bona fides of the marital relationship.
It is highly recommended that potential applicants consult with an attorney prior to initiating their immigration process. The information provided above is not intended as a substitute for seeking legal counsel regarding individual applications for permanent residency based on marriage. For more information, please feel free to reach out to one of our attorneys.