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Proving a bona fide marriage on an I-751 petition is critical to its success and there are several documents that can be used to establish a marriage’s bona fides. The burden of proof to demonstrate that the marriage is bona fide is on the couple. They must present sufficient evidence that proves that they married for love and not simply to circumvent the immigration laws. When properly demonstrated, the conditional resident receives a 10-year green card and becomes a permanent US resident.
In the event the marriage is no longer viable, due to abuse or divorce, the conditional spouse can try to seek a waiver of the joint filing requirement. Even if the waiver is granted and the I-751 can be filed by only the conditional spouse, he or she must still meet the burden of proving that the marriage was legitimate. Those seeking a waiver based off abuse have an additional hurdle and must also show battery or extreme cruelty. We will address that in a future article.
*There is another difficult to get waiver based off extreme hardship, which we will also detail in a future article.
Proving a Bona Fide Marriage
The US immigration laws created the concept of a “conditional resident” to prevent fake or sham marriages, that is, when at least one party enters the marriage for the purpose of cheating the immigration laws in order to falsely acquire immigration benefits. Fraudulent marriages entered into for the purposes of obtaining a green card is a crime that can result in harsh penalties, jail time and large financial fines. A determination that fraud took place typically eliminates the possibility of getting approved at a later time on a future application. This same law requires that the US Citizenship and Immigration Services (USCIS) scrutinize every application for permanent residency status to ensure that the relationship at the heart of this immigration benefit is legitimate.
Because the burden of proof to demonstrate that the marriage is bona fide is on the couple (or the conditional resident when filing alone), it is best to start preparing for the I-751 petition as soon as you can. The wedding day is a great start. If you or your spouse recently became a conditional resident by marriage, you should begin building your case today. A well-prepared I-751 petition will help prove a bona fide marriage and may even avoid the need for an in-person interview.
Red Flags that could cause Extra Scrutiny by USCIS
USCIS officers review every I-751 petition. According to section 21.3 of the Adjudicators Field Manual (AFM), which is a guide that USCIS officers use to make determinations on immigration cases, there are several factors serve as warning signs of possible marriage fraud. These factors include:
– Large age disparity;
– Inability to speak each other’s language;
– Large differences in cultural or ethnic norms;
– Friends and/or family are unaware of the marriage;
– Third party arranged the marriage;
– Couple wed immediately upon notification to depart the United States;
– Discrepancies in statements on which a couple should have common knowledge;
– No cohabitation since marriage (although there can be valid reasons);
– Beneficiary is a friend of the family;
– Petitioner previously filed petitions on behalf of foreign nationals, especially foreign national spouses.
While these factors alone do not demonstrate a sham marriage, they can raise alarms and further probing by the USCIS officer. If one of these criteria applies to you, additional scrutiny and more questions from USCIS should be expected. For example, a large age disparity is not a valid basis to deny an I-751 petition. However, it is a valid basis for USCIS to look for additional proof that a bona fide marriage exists. Another example is living apart from your spouse. While certain employment, such as military service, is a reasonable explanation for not living together, such facts will create the need for additional evidence.
Best Documents to Prove a Bona Fide Marriage
While a marriage certificate demonstrates the legality of a marriage, it does not prove that the marriage is genuine, entered in good faith and bona fide for the purpose of removing the conditions on residency.
A marriage certificate is necessary, but not sufficient.
Rather, when filing an I-751 petition, you must submit along with it copies of as many documents as you can to establish this fact and to demonstrate the circumstances of the relationship from the date of marriage to the present date. In fact, documents that pre-date your marriage can also aid in proving the legitimacy of a marriage (such as pictures of how you met and your courtship). There are many documents that aid in proving this and they can be divided into several categories.
Proof of Intimacy
Given that the I-751 is typically filed in the 90 day window just before the expiration of the conditional resident’s two-year green card, the vast majority of couples who file form I-751 petitions are newlyweds. They are still in the “honeymoon phase” of marriage and usually enjoy life experiences together. In fact, they likely enjoyed many life experiences before they wed and so the records of how they met and their courtship can also help demonstrate the legitimacy of their subsequent marriage.
The following are examples of the types of documents or records that can be used as evidence of intimacy:
– Pictures from the couple’s time together, including wedding, honeymoon, trips, family events, holidays, etc. (beside or behind each picture should be a list of all the individuals pictured, as well as the date and location of the picture)
– Travel itineraries and hotel bookings from joint vacations or trips
– Pictures from joint vacations or trips, especially trips abroad to visit family members
– Tickets to events you both attended or plan to attend
– Receipts for any gifts that were purchased by one spouse for the other
– Letters or cards from friends or family congratulating you on your wedding, anniversary, or other joint life event
– Proof that each spouse met or communicated with the other spouse’s family (this can be pictures, letters, cards or emails)
– Phone or text messages that show regular communication with each other
– Social media records such as screen shots of Facebook pages, posts and Twitter messages that show the couple together
Proof of Raising Children Together
Proof of one or more children born into the marriage is extremely compelling evidence of a genuine marital relationship. While it is not necessary to have children born into the marriage (or have any children at all), it is a strong indication that that marriage is a legitimate one. In this regard, adopted or step-children raised in the household also helps establish that the marriage is bona fide.
The following are examples of the types of documents or records that can be used as evidence of raising children together:
– Birth certificates showing both spouses as parents
– Adoption certificates showing both spouses as parents
– Evidence of a relationship with children or step-children (pictures, trip itineraries, school records, affidavits from friends, family, and teachers)
– Medical records showing an effort to become pregnant or an ongoing pregnancy
– Listing the non-related parent as an emergency contact for a step-child on school records, doctor’s records, etc.
Proof of Commingling of Finances
Most married couples combine their financial resources. This includes property, assets, investments and insurance policies. This commingling of finances demonstrates trust, commitment and a good faith marriage. While some couples prefer to keep their finances separate, there are frequently many examples of commingling that nevertheless exist.
The following are examples of the types of documents or records that can be used as evidence of commingling of finances:
– Bank statements for joint checking, savings, and credit card accounts
– Voided and cancelled checks for joint accounts
– Statements for joint loans or loans where one spouse is a co-signor for the other spouse
– Copies of bank statements from separate accounts and cancelled checks showing that you share jointly in your financial responsibilities and big purchases (for example, if each spouse pays half of the rent from a separate account or if each spouse paid one half towards the purchase of a car)
– Joint health, life, property, and auto insurance agreements, statements, and cards
– Utility bills showing both names (electricity, water, gas, trash, cable, internet, cell phone, etc.)
– Jointly filed tax returns showing both names
– Documents showing joint ownership of real property, cars, or investments
– Life insurance policies, wills, and trusts, designating your spouse as a beneficiary
Proof of Cohabitation
Married couples usually live together. While cohabitation is not always the case, it’s a strong indicator and good proof that help establish that a marriage is bona fide. The following are examples of the types of documents or records that can be used as evidence of cohabitation:
– Deed to property showing both names
– Mortgage or loan documents showing both names
– Lease agreement showing both names
– Driver’s licenses or IDs showing the same address
– Bank statements showing the same address
– Voided or cancelled checks showing the same address
– Utility bills showing the same address (electricity, water, gas, trash, cable, internet, cell phone, etc.)
– Property insurance agreements, statements, or cards showing the same address
– Health or life insurance statements showing the same address
– Correspondence from friends, family, or businesses showing the same address
– Affidavits from friends, family, neighbors or landlords attesting to cohabitation
Letters and Affidavits
Finally, corroborating evidence from others attesting to the authenticity of a marriage can help demonstrate that it’s bona fide. Consider asking your friends, family, neighbors, and employers to write about the genuineness of your marriage. These letters or affidavits can help support the other types of evidence described above.
Ideally, these letters and affidavits are from people who have known both spouses since the conditional residency was granted and who have personal knowledge of the relationship and marriage. (These people may be asked to testify before an immigration officer regarding the information contained in their submissions.)
If submitting letters or affidavits, be sure to submit the original which must contain basic information about the person providing the attestation: his or her full name and address; their date and place of birth; their relationship to you or your spouse; and, details explaining how the person acquired their knowledge.
Do I need an Attorney?
Many joint 751 filings are straightforward and can be successfully completed without the assistance of an attorney. However, if your case contains any of the red flags described above or there are other complications (such as extensive travel, criminal issues, etc.) it would be prudent to consult with an attorney. Also, in instances where a waiver is being sought for divorce, abuse or extreme hardship, the case is more complicated and the stakes are higher. In those instances, it is advisable in most situations to retain a competent lawyer.
While many examples have been listed here, they should not limit the scope of what can be used to prove that a marriage is bona fide. Similarly, the items listed here do not guarantee that an I-751 petition will be approved.
Anything that you consider relevant and which establishes that your marriage was not entered for the purpose of evading U.S. immigration laws, can be used. When collecting documents, consider the activities and responsibilities that a typical married couple experience. By providing these examples of routine life events experienced together, you can build a strong case that the marriage was entered into in good faith.