A United States Citizen or permanent resident may request that U.S. Citizenship and Immigration Services (USCIS) have his or her spouse become a permanent resident of the United States (be issued a “green card”). This request may be made by filing an Alien Relative Petition (Form I-130) and in some cases concurrently with an Application to Register Permanent Residence or Adjust Status (Form I-485) as wells an Application for Employment Authorization (Form I-765). Of course, there are many other documents and information that need to be filed along with these including various filing fees depending on the nature of the petition and/or application. There may also be certain wrinkles regarding the immigration history of the petitioner and / or applicant that would necessitate careful consideration before filing.
Over the years, USCIS has become more and more skeptical of certain marriages between U.S. citizens or permanent residents and foreign nationals. The couple is required to prove that their marriage is a bona fide (good faith) marriage. In other words, that they did not get married for the sole purpose of obtaining immigration benefits (circumventing U.S. immigration laws). Good faith is especially required for marriages, entered into during removal (formerly deportation) proceedings. In this case, the couple must prove by “clear and convincing evidence” that their marriage was entered in good faith.
As part of investigating the good faith of the marriage, USCIS may interview the couple (sometimes separately) about the marriage and may ask rather intimate details about the relationship. USCIS Officers look for discrepancies in these details. USCIS may also actually investigate other aspects of the couples’ lives including but not limited to going to their homes and places of employment, reviewing their background informing and interviewing other people about the couple and relationship. Also, based on statistical analysis, USCIS suspects marriages between people of widely different ages or backgrounds, or between people who do not speak a common language or who have known each other only very briefly. This does not mean that if a marriage is valid it would be determined a bad faith marriage based on the existence therein of any of these factors.
How can a couple seeking immigration benefits based on their marriage prove that their marriage is a valid and has been entered to in in good faith? The following is an outline of some of the things that USCIS looks for in a good faith marriage.
- Showing of good faith marriage by having a good faith marriage. The first step in proving that you have a good faith marriage is by actually being in love with your mate. Your “spirit” as a couple is very significant to your credibility. A marriage undertaken simply for immigration purposes is quite likely to generate problems. (See our Special Report: Protecting Yourself and Your Rights in Immigration Proceedings). Marriage, in most cultures and religions is considered one of the most sacred acts of life. Therefore, it is advisable not to get married unless you intend to be serious about it. Under U.S. law, it is illegal to pay someone else to marry you for immigration benefits. It is a serious crime. A good faith marriage does not necessary have to be a good marriage. A marriage may be a good faith marriage that for various reasons is not working out. In this case the parties “spirit” in and of itself may not be sufficient to establish the validity of the marriage. If this is the situation, make sure you let your lawyer know so that he or she can make the proper analysis of the case.
- Evidence that you knew each other before the marriage.
- Photographs of the two of you together prior to the marriage, particularly with your parent, if possible;
- Affidavits or statements of friends who saw the two of you together, knew that you were dating, knew that you lived or are living as husband and wife etc.
- Agreement between the two of you as to the time and place of your first meeting, how your relationship developed and evolved, what made you decide to get marriage etc.
- Evidence that your parents (if alive) know that you are married and approved of the marriage or if they do not know or did not approve, why not.
- Evidence of the marriage ceremony. USCIS rightly thinks that marriage is a significant event and thus should be remembered in detail. One is expected to know who attended, when it happened, etc.
- Congruent stories about the time and place of wedding or any ceremonies regarding the marriage.
- Copies of invitation cards, marriage correspondence, etc
- Photographs of the wedding.
- Accurate list of who was present at the wedding.
- Evidence of a honey moon if any and if not why not?
- Evidence that you now physically live together as husband and wife. If you do not live together, explanation why not and evidence in support of such explanation.
- Knowledge of when you first consummated the marriage
- Knowledge of intimate details of each other’s bodies, habits, likes and dislikes, favorite food, TV programs (What was the last TV program you watched together? When was that? Where?)
- Knowledge of each other’s work schedule.
- Knowledge of accessories and clothing at your home
- Knowledge of meal preparation schedule (who prepares the meals? When? How?)
- Knowledge of persons living with you, neighbors and others around
- Photographs of the two of you at home
- Correspondent from other people addressed to both of you at home
- Affidavits from neighbors regarding your residence and relationship
- Affidavits regarding your residence and relationship if these friends do visit with you
- If you must live apart for any period of time (for example, to care for a sick relative or for job related reasons), make sure that you document the reason by affidavits, medical records, or other documents.
- Letters from employers or copies of employment records stating the employee’s status as “married” and naming the spouse therein
- Driver’s licenses showing the same address
- Birth Certificates of children born of the marriage
- Lease showing both of you
- Joint assets and liabilities.
- Bank accounts/ bank cards/check booklets/ in both names
- Credit cards/Department store cards in both names/bank line of credits
- Apartment lease and proof of rents
- Mortgage in both names
- Utility bills-telephone, cable, gas, electricity etc, in both names
- Naming spouse in employee benefit programs
- Joint ownership of car, major appliances like refrigerator, washing machine etc
- Joint business enterprises and business activities
- Joint insurance policies (life, health etc)
- Joint retirement plans
- Joint state and federal income tax returns
- Last will and Testament made out in each other’s favor as husband and wife
- Any other documents or statement or witness which or who would tend to corroborate the validity of your marriage. We encourage our clients to call our attention to any and all personal documents even if they think these are not relevant. Experience has shown that clients can out of ignorance leave out very relevant information or documents.
- The marriage should last beyond the time needed to achieve immigration benefits. A marriage which lasts only as long as it takes to achieve immigration benefits or citizenship is automatically suspect in any further immigration proceedings. Generally, a marriage must last at least two years after the initial “Conditional Residence” to achieve full permanent residence and one more year to achieve U.S. Citizenship. (See our Special Report: It is Never Over until it is Over: Making Your Conditional Residency Permanent)
- Evidence of marital problems or difficulties as evidence of a good faith marriage. Oftentimes, spouses in immigration proceedings erroneously think that they need to proof to the USCIS officers or the Judge that their marriage is a “good” or happy marriage. Nothing is further from the truth. A good faith marriage does not mean a happy or a good marriage. The law requires that the marriage be genuine but it does not demand that the couples must be living happily. We have actually used evidence of a bad marriage which is a genuine marriage to prove a “good faith marriage” for immigration purposes. These documents may include, Protective Orders filed by one of the spouses against the other, documents regarding marriage counseling, derogatory correspondences between the couple or between other persons and the couple regarding their relationship. Why would these type documents exist if the parties were not in a genuine (albeit bad) relationship. However, each case has to be carefully analyzed before this strategy is used because it can easily backfire if not done properly.
- Remember that there may be other limitations on the ability of the U.S. citizen to petition for his or her spouse or for the foreign national to obtain permanent resident status in the United States through marriage. For example if the petitioning spouse himself or herself gained permanent resident status through a marriage less than five years before petitioning for his or her spouse, even if he or she is a U.S. citizen, he/she is ineligible to petition for his/her alien relative. Also, while USCIS may adjudicate and even approve an Alien Relative Petition (Form I-130) filed on behalf of an alien who is in proceedings it does not have jurisdiction to adjudicate an application to adjust status filed by an alien in removal proceedings. In this situation, the adjustment of status application can only be heard by the Immigration Court or the proceedings may be terminated (usually only after the I-130 has been approved) to permit USCIS to adjudicate the Adjustment of Status application. An alien who has been ordered deported or removed from the United States can also not file directly to adjust his or her status. In this case, if an Alien Relative Petition has been filed or approved, a motion to reopen the proceedings can be filed. The grounds for such a motion should be very carefully articulated for it to succeed. Usually this will be filed after the time for filing such a motion had passed. Therefore, the motion may need to rely on the sua sponte jurisdiction of the court hearing it (See our Special Report: Obtaining Permanent Resident Status (“Green Card”) in the U.S. after Deportation or Removal). Because there may be many other possible obstacles to a smooth marriage petition, it is absolutely necessary to consult with someone well versed with U.S. immigration laws.
The Law Offices of Fogam & Associates, LLC has successfully handled numerous cases in this area. We prepare our clients’ petitions and applications diligently. We also analyze their particular circumstances very carefully to determine how to proof the good faith of the marriage. We have successfully established a good faith marriage in cases that initially appeared impossible to do so. Contact us today to help you.
This Special Report is intended to provide basic information about the selected legal topic. The information is provided solely for informational purposes and does not create a business or professional relationship with the Law Offices of Fogam & Associates, LLC, Edwin K. Fogam, or any of our individual attorneys, or affiliates. This is not presented as legal advice. Each person’s legal needs are unique. Laws change frequently, and it is possible that some of the information here may no longer be true at the time of reading, or may not apply to someone in your situation or jurisdiction. You should consult with an attorney familiar with the law in your jurisdiction and your particular situation before making specific legal decisions.