Permanent Residence Through Marriage
Although marriage to a U.S. citizen is still the most common way to get U.S. permanent residence (also known as a “green card”), by no means does it guarantee that permanent residence will be granted. I have had a number of calls recently from distressed U.S. citizens. Each had petitioned for their foreign national spouse. The I-130 petition was initially approved, but at the immigrant visa interview held at the U.S. Embassy or Consulate, the relationship came into question. Essentially, the Consular Officer did not believe that the couple had a bona fide marriage. The Consular Officer denied the visa and sent the case back to the U.S. Citizenship and Immigration Services (“USCIS”) in the United States for the I-130 petition to be revoked. This happened after waiting many months for the petition and immigrant visa application to be processed.
The accusation of a sham marriage can be very difficult to overcome. The foreign national spouse often lives outside the U.S. Due to personal and financial obligations, which require the U.S. citizen spouse to remain in the U.S., the couple may have spent very little time together. Consequently, there will not be many photographs of the couple together, and there will not be many people to attest to the fact that the couple’s marriage is bona fide because they have not spent time with the couple. Additionally, because the two spouses live apart, they will likely not have a joint mortgage or lease and will not have joint utility bills. In fact, they might not have any commingled assets at all.
In this world of ever-improving technology, less people rely on old-fashioned, hand-written letters and paper greeting cards. Instead, they e-mail, send e-cards and instant message. If the e-mails and e-cards are not saved, it will be very difficult to show that the two spouses have corresponded with one another.
It is worse yet if the spouse, who is living abroad, does not have access to a computer. The couple may not write at all. Rather, they call each other. However, in this day in age, chances are the phone calls have been made with either a cell phone or a calling card. In either case, it is likely that the caller does not have records of the calls he or she made. Thus, there is no way for the couple to prove that they have been keeping in contact by phone.
In those cases where the immigrant visa is denied, it may be necessary for the U.S. citizen spouse to spend additional time with the foreign national spouse before he or she responds to the USCIS’ notice of intent to revoke the I-130 petition. During the time spent together, additional evidence that the couple married in good faith can be collected. If spending additional time together is simply not an option, the couple must make every effort to document their correspondence and phone calls. They should also try to collect as many affidavits as possible from people who know that the couple married for mutual love and respect. If the I-130 petition is revoked, a new I-130 petition will need to be filed once sufficient evidence of the bona fide relationship is collected.
Before filing an I-130 petition, I always advise my marriage-based clients to collect as much documentation as possible showing that they married in good faith. Such documentation includes joint bank account statements, evidence of joint ownership of property, utility bills in both names, joint tax returns, and birth certificates of children born to the union, to name a few examples. I provide my clients with a list of the documents, which the USCIS and/or the consular post will want to see. Then, the I-130 petition is filed with the documentation collected by my clients.
If the foreign national spouse was previously married to a U.S. citizen or U.S. permanent resident, whether or not that prior spouse filed an I-130 petition on behalf of the foreign national, it is a very good idea to submit evidence that the prior marriage was also bona fide. Likewise, if the U.S. citizen spouse was previously married to a different foreign national and filed an I-130 petition for that foreign national, it is a good idea to submit evidence that it was a bona fide marriage.