Our New York immigration lawyers helped a married couple respond to a USCIS Notice of Intent to Deny (“NOID”) issued relative to an I-130 Petition filed on behalf of the wife based on perceived discrepancies in our clients’ statements during two interviews with USCIS that they attend without attorney assistance. As a result of these perceived discrepancies, USCIS charged the couple with entering into a fraudulent marriage and initiated removal proceedings against the wife. However, with the help of Getson & Schatz, our clients clarified their perceived discrepancies, leading the Office of the District Counsel to dismiss the fraud charges and terminate the wife’s removal proceedings.
Our immigration attorneys spent numerous hours with our New York clients going over the government’s allegations of fraud and developing responses that disproved or explained their perceived discrepancies. In some instances, such as USCIS’ assertion that the wife had been living with another person when she was actually just staying with this person during the week while she was commuting to another city for work, USCIS was clearly in the wrong and had erroneously arrived at an unwarranted conclusion. In others, our clients explained aspects of their individual personalities that resolved what USCIS interpreted to be inconsistent statements evidencing a fraudulent marriage. For example, USCIS pointed out that the husband did not know that his wife’s parents were dead. The husband, in fact, did not know that the wife’s parents had died, but this was because the wife was an intensely private person and simply had not told her husband that her parents were dead. Getson & Schatz addressed each point of contention and either refuted USCIS’ charge or explained-away the apparent inconsistency, providing proof of the refutations or explanations when possible while also presenting supplementary evidence to show the bona fide nature of our clients’ marriage. This work proved our clients were in a genuine marriage that was not entered into for the sole purpose of obtaining an immigration benefit, and the government dropped its charge of fraud and ultimately terminated the wife’s removal proceedings.
Thanks to the Supreme Court decision in U.S. v. Windsor, which ended DOMA, gay and lesbian immigrants in New York and around the country can apply for green cards through their U.S. citizen or green-card holding spouses. Here are the answers to some common questions regarding the immigration process.
1. Question: My partner and I are planning on get married, but he is currently outside of the U.S. Can I file a petition for him before he comes to the U.S.?
Answer: Yes, but you would be filing a fiance visa petition rather than a marriage petition unless you will be visiting your partner to register your marriage first. U.S. immigration law allows you to file a petition for a fiancé and the legal requirements are that you have met in person within the last 2 years, that you intend to marry within 90 days of your fiancé entering the U.S., and that your fiancé then file a green card application in the U.S. For couples who have a significant amount of evidence of their relationship already, a fiancé petition can be a good solution. For other couples who have relatively little documentary evidence, it often makes more sense for the marriage to be registered as the additional trip to see each other in person can serve as additional evidence if it is well documented.
2. Question: My partner entered the U.S. illegally many years ago by using a fake passport and has never been arrested by the immigration officials. Can I submit a marriage petition for my partner after we get married?
Answer: The answer is yes, but because your partner may have committed fraud, the Immigration Service could deny the green card application. An immigrant who committed fraud has a couple of problems. If the immigrant was never arrested, there may not be any evidence that he or she was inspected at the border, and those who simply cross over the border without inspection, such as the majority of illegal Mexican immigrants, are not eligible to apply for green cards in the U.S. (although there is a special process called the stateside waiver that may allow them to get green cards depending on the specific facts of the case). If your partner can prove inspection at the border, perhaps by submitting the fake passport to the Immigration Service, then he or she will still need what is called a “waiver” which would forgive the fraud if you can prove extreme hardship to you, the U.S. citizen spouse, if your partner is deported. The law has established a high legal standard for fraud waivers, and winning such cases if often possible, but the process is much more difficult than in a standard case in which the immigrant entered the country legally.
3. Question: Are marriage or fiancé petitions ever denied by the Immigration Service?
Answer: Unfortunately, the answer is yes, and I have seen many cases denied for a large variety of different reasons. Depending on the specific facts of the case, and depending on which immigration officer you happen to get at your interview, you may have a difficult time getting your case approved, especially if you do not have much documentary evidence. Factors that can cause a case to be denied include, living in separate residences (even if the separation is work related), having little or no documentary evidence, mistakes on immigration forms, and especially, making mistakes at your interview. The immigration officers regularly see fake marriages as immigrants attempt to get green cards when they are not qualified, and for this reason, many officers are extremely skeptical and are looking for any reason to deny a marriage petition.
Most officers are fair, but occasionally, I see cases where the immigration officer clearly intended to continue asking questions until the couple slipped up and provided conflicting testimony which can happen even to real married couples. For this reason, I always prepare my clients very carefully for their interviews, asking them many questions that immigration officers frequently ask in marriage interviews. It is important to do a mock interview like this in order to ensure consistent answers, especially when a couple has been together for any length of time as memories tend to fade quickly and sometimes, it is more difficult than you might expect to recall details when faced with the pressure of an interviewer intent on finding some inconsistency in an official interview.
Our New York Immigration Lawyers recently guided a couple through the process of filing for marriage-based adjustment of status. A naturalized U.S. citizen originally from Jamaica wanted to sponsor her husband for a green card and came to our law firm for assistance. Her husband has overstayed his B-2 visitor status. Our lawyers prepared and filed an I-130 Petition for Alien Relative along with an I-485 Application for Adjustment of Status. With the initial filing we provided USCIS substantial documentation of the bona fide marital relationship between husband and wife. We supplied USCIS with numerous documents establishing their relationship and shared residence, including utility bills, phone bills showing calls made to each other, e-mails sent to each other, facebook pages, and a joint bank account. The phone bills included more than 50 pages of cell phone records chronicling conversations between husband and wife over the two years prior to their marriage. We prepared our clients for their interview in our office 2 days before their actual interview by doing a “mock” interview with them. During our “mock” interview we asked them detailed questions about their relationship and marriage and asked the foreign national the types of questions about his admissibility to the United States that he was going to be asked by the Immigration Officer at the interview. We attended the interview at USCIS with our clients, taking detailed notes of the questions asked and answers given. USCIS approved the application and the green card was issued within 1 week after the interview.