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The filing of a form I-751 is one step in the process of a foreign national becoming a permanent US resident. The petition is typically submitted by a foreign national (who obtains lawful US residency status from marrying a US citizen or permanent resident) near the end of the two year conditional residency period. The purpose of the document, and the supporting evidence that goes with it, is to demonstrate that the marriage was bona fide, or legitimate, and not one entered into simply to grant immigration status to the foreign national.
The petition is filed with the U.S. Citizenship and Immigration Services (USCIS), who then determines whether the marriage is bona fide. After its filing, USCIS may request additional documents or materials, and will frequently schedule an interview of the couple to help assess the credibility of the marriage. In the instances of divorce or abuse, the joint interview can be waived and the immigrant can go forward alone.
Of course, no couple wants to visit USCIS to be poked and prodded with personal questions about their marriage. What’s more, the importance of the interview cannot be over exaggerated – if USCIS is not convinced, or suspects that the marriage was not bona fide, the foreign national’s residency status may be in jeopardy.
Section 216 of the Immigration and Naturalization Act (INA) requires a couple to appear for a personal interview in order for USCIS to remove the conditions on residency and allow a foreign national who obtains status through marriage to become a permanent US resident. But if USCIS is satisfied that the couple is legitimately married (i.e., did not marry simply to evade immigration laws and obtain lawful US residency), they can waive the interview and approve the I-751 without an interview USCIS guidelines direct officers on how to determine whether the I-751 interview requirement can be waived. These guidelines are detailed in a November 2018 policy memorandum that is available on the USCIS website. https://www.uscis.gov/…/2018-11-30-PM-602-0168-revised…
Essentially, USCIS officers may consider waiving an interview if they are satisfied that:
• They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into to evade US immigration laws
• For I-751 applications received on or after December 10, 2018, USCIS previously interviewed the principal petitioner (through the consular or adjustment interview process;
• There is no indication of fraud or misrepresentation in the form I-751 or the supporting documentation; and,
• There are no complex facts or issues that require an interview to resolve.
If the USCIS Service Center that is reviewing the I-751 petition is fully satisfied that the marriage is legitimate and not entered into for the purpose of evading the immigration laws, the Service Center may waive the interview and approve the petition. However, if they determine that an interview is warranted, the application is then sent to the Service Center’s Adjudications Unit where any adjudicator assign it a fraud level of A, B, or C. The adjudicator makes this determination using the documentation submitted with the I-751.
If the adjudicator is completely satisfied that the application case can be approved, a fraud level of C is assigned. If the adjudicator is less than completely satisfied, but nevertheless feels that the submitted evidence indicates that the application can be approved, then a fraud level of B is assigned. Finally, if the adjudicator’s review indicates serious concerns about the bona fide’s of the marriage and the approvability of the application, or if the adjudicator determines that the couple should be interviewed, then the application is assigned a fraud level of A.
Each fraud level is described as follows:
Level C – The application contains all the required supporting documents and there is no indication of fraud or misrepresentation that can be identified from the application and its attachments, or through the biographic data of the parties involved. There are no technical problems (signatures, missing information, lack of evidence, etc.) and the USCIS adjudicator thinks the application can be approved without an interview.
Level B – While there are no technical problems that need to be corrected or addressed, and the application has the minimum number of supporting documents, there is still something (or the absence of something) that is suspect or creates in the mind of the adjudicator a suspicion about the bona fides of the marriage, the credibility of the evidence, or something else. The basis for the suspicion are varied so a list of possibilities is not available. One example could be the fact that the supporting documents (the photographs and bank statements) are all from just the past few months and nothing older than 6 months.
Level A – The application is highly suspicious and the USCIS adjudicator strongly suspects fraud. Reasons for assigning this highest fraud level include: the absence of the petitioner’s signature; insufficient evidence; a large age difference exists between the spouses; the married couple are not living together; a previous I-751 was denied; or, the I-751 was filed late and without a good reason. Anything that the adjudicator believes raises strong doubt about the marriage’s bona fides can support a Level A assignment.
After the fraud level is assigned, the application is sent to the field office in the geographical location of the couple. The field office then assigns a certain percentage of each fraud level for interviews. All level A applicants are interviewed. The field office may then choose to interview between 30% to 100% of all level B applicants, and between 10% and 50% of all level C applicants. While the prospect of a strong and credible I-751 petition avoiding an interview is high, the field office may also randomly select some strong applications to be interviewed.
Reducing the prospect of being selected to be interviewed, is within the ability of any applicant and comes down to preparing the best I-751 possible. Remember, the purpose of the two year conditional residence is to be able to prove to the government that the marriage is legitimate and that the couple genuinely intend to stay married together. Insufficient evidence to prove a bona fide marriage, or circumstances that raise doubt about the credibility of the marriage, increase the likelihood of an interview.
It is important to note that waiver cases – those I-751 petitions that are not filed jointly because the couple have separated, divorced or involve domestic abuse – may also be approved without an interview where the application contains strong supporting documentation that shows that the marriage was bona fide.
The best way to increase the odds of avoiding an interview is by submitting an I-751 that is ironclad and leaves no doubt that the marriage was bona fide. This means collecting not simply the best evidence possible, but doing so early and from as many sources as possible. This helps establish the credibility of the evidence, especially when the evidence corroborates or supports other evidence. And starting early is key, to indicate that the marriage was entered into for lawful purposes and continues to the present, thus supporting its intended purpose.
Examples of the best type of evidence includes (but is not limited to) the following:
• Birth certificate(s) of child(ren) born to the marriage.
• Pictures of the married couple together – usually 10-20 photographs, including wedding photos, traveling, special events with family and friends, etc. Each picture should have the date, place and people written on the back.
• Financial documents that indicate joint or co-ownership of assets or joint responsibility for liabilities –joint savings and checking accounts with transaction history; joint credit card statements; insurance policies that show each other spouse as the beneficiary; joint tax returns; joint utility bills; car title indicating joint ownership; joint loans, etc.
• Documents indicating cohabitation – lease or mortgage contracts showing joint occupancy and/or ownership of a communal residence.
• Letters or Affidavits – sworn statements by people who have known the couple since the time the marriage started and who have personal knowledge of the marriage.
Financial and insurance records are often the strongest proof of a bona fide marriage because sharing ownership of assets and responsibility for financial obligations is a strong indication that a couple plans to remain together and build a future together.
In those instances where the couple are no longer together and a request for a waiver of the joint filing requirement accompanies the I-751, the likelihood of an interview increases. But filing with a waiver does not mean that the marriage is not bona fide or was entered into in bad faith. Unfortunately, not all marriages are suitable or work out, but that doesn’t mean the marriage was not bona fide. If a couple is no longer together at the end of the two-year conditional period and the time to file the I-751 has arrived, additional care must be given to preparing the I-751. The process may be more challenging, but a strong case can still be made that the marriage was bona fide and no interview is required.