Foreign nationals, who obtained their green card through their U.S. Citizen spouse, enter the United States as conditional residents. The conditional residence period lasts for two years. Before the end of the two-year period, the foreign national and the citizen spouse typically must apply together to have the conditions on residence removed. (However, there is a procedure to remove conditions on the foreign national’s residency in the event of divorce.) Nevertheless, in order for USCIS to remove the conditions on the foreign national’s residency, the foreign national must prove the marriage was bona fide at its inception. It is not enough to provide a marriage certificate; the foreign national must present strong evidence to support that they entered the marriage in good faith.
Factors that may signal marriage fraud
Immigration officers at USCIS look to the Adjudicator’s Field Manual (“AFM”) to as a guide when making decisions on immigration cases. Most relevant here is AFM Section 21.3, which lists several factors that may indicate marriage fraud. These factors include:
- Large age disparity;
- Inability of each spouse to speak the other’s language;
- Vast cultural and ethnic background;
- Family and friends are unaware of the marriage;
- A third party arranged the marriage;
- Marriage occurred after beneficiary was placed in removal proceedings;
- Discrepancies between spouse’s statements that should be common knowledge;
- The spouses do not live together;
- Beneficiary spouse is a friend of petitioner’s family; and
- Petitioner has made previous petitions for foreign nationals.
While these factors are not dispositive, a couple can expect additional scrutiny if several factors apply to their marriage. For example, a U.S. citizen marries her long-time boyfriend, after he was issued a Notice to Appear in immigration court. Subsequently, she files a Petition for Alien Relative. While the fact the beneficiary is in removal proceeding is not a basis for denial of the petition, the government requires clear and convincing evidence that the marriage is legitimate.
Documents that show the marriage is legitimate
Evidence of Cohabitation
Typically, married couples live together. Therefore, evidence of cohabitation is a strong indicator that the marriage is bona fide. The following are examples of this type of evidence:
- Deed to the family home is in both spouses’ names;
- Lease or rental agreements in both spouses’ names;
- Driver’s license for each spouse shows the same address;
- Utility bills showing both spouses live at the same address (e.g., cable bill with wife’s name sent to the same address as the water bill in the husband’s name); and
- Affidavits from friends, family, or neighbors attesting to the cohabitation.
Evidence you are raising children together
Evidence that the couple has children together is probably the most compelling evidence a couple can submit. Also, evidence of a strong step-parent relationship with a step-child is compelling evidence. The following evidence demonstrates that the couple raise children together:
- Birth certificates with both spouses listed as parents;
- Medical records that show an ongoing pregnancy, previous miscarriages, or fertility treatments;
- Evidence that the step-parent is listed as an emergency contact for the step-child; and
- Photos of the family together.
Evidence of commingling assets
Typically, married couples combine finances. Evidence that you and your spouse have combined finances is solid evidence to support you have a good faith marriage.
- Joint health, life, and property insurance policies;
- Jointly filed tax returns;
- Documents showing joint ownership of property; and
- Bank statements with both spouses listed as account owners.
- Each spouse is beneficiary to the other’s will.
Evidence of a close relationship
- Photos taken of the couple on vacation, at their wedding, at holidays;
- Phone or text messages that show the couple communicate frequently;
- Screenshots of social media accounts that show you sharing life events;
- Receipts for gifts purchases for each other;
- Each spouse naming the other spouse power of attorney in his/her advanced healthcare directives; and
- Travel itineraries or hotel accommodations for trips you have taken together.
Preparation to remove conditions on residency start long before you file Form I-761. The more evidence you can provide, the better. If USCIS believes you have engaged in marriage fraud, they will deny your petition and refer your case to immigration court. Additionally, marriage fraud is a federal crime that applies to both the foreign national and the U.S. Citizen. Marriage fraud is a felony offense punishable up to five years in prison and a fine of $250,000. Careful preparation to remove conditions on residency is essential, and you should consult with an experienced immigration lawyer. If you live in Ohio, you should consult one the immigration lawyers at Larson, Lyons & Al-Hamdani.