Know Before You Go: Issues for Family Based Marriage Cases

Complex issues can arise for a couple who are citizens of different countries, but want to stay together. Non-Immigrant visas are temporary. A non U.S. citizen who wants to visit their U.S. citizen significant other may run into problems at the embassy because the government may believe that his or her true intent is to come to the United States permanently despite applying for a temporary visitor visa, or some other non immigrant visa. Couples often find themselves having to make a long lasting decision before they may otherwise be ready: Do we get married now so we can file for a green card and start our lives together, or do we wait and risk a long term separation and filing through an embassy.

If the couple decides to get married and subsequently files for a green card, USCIS will conduct a thorough review to determine whether the marriage is “bona fide.” That is, is the marriage valid and viable. It is unlawful to file for any immigration benefit based on a marriage that was entered into for the sole purpose of obtaining the immigration benefit. That being said, it is not unlawful to get married sooner than you would otherwise wish to do so you can obtain an immigration benefit (i.e. a green card), as long as the marriage is bona fide. The couple must intend to live permanently as a couple.

If a non U.S. citizen gets married to a U.S. citizen within 2 years of filing for an immigration benefit (i.e. green card), USCIS will scrutinize the relationship to ensure that it is not fraudulent. They will make sure that money has not been exchanged for the filing of the immigration benefit. They may interview each applicant separately to determine whether they are telling the truth. They may conduct an investigation to corroborate or dispute the statements made in the filing or at the interview. For example, they may go talk to neighbors to determine whether both individuals live at the residence together and act like a couple in love.

USCIS determinations are subjective and it is the immigrant’s burden to prove that the marriage is bona fide. Therefore, it is important to present sufficient evidence to convince USCIS that the marriage is real. It is not enough to simply know and tell them that the marriage is real. You must prove it. Documents, affidavits, bills showing each persons’ address is the same, bank account records showing a shared bank account, lease or mortgage showing both persons own or lease the property, photographs, etc. should all be tendered to prove a bona fide marriage.

If USCIS believes that the marriage is fraudulent, they will refer the case to an investigator and Immigration and Customs Enforcement may become involved and begin a criminal investigation. If ICE determines that there is probable cause to believe that marriage fraud has been committed, they can arrest both parties at or after the interview. They will often video record statements from both the United States citizen spouse and the immigrant spouse. At any time, you have the right to remain silent and to obtain a lawyer. Anything you say during any proceedings or any filings with the government can be used against you in a criminal prosecution. The consequences of filing a fraudulent petition are extremely serious.

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