Section 216 of The Immigration and Nationality Act (INA) requires certain spouses of US citizens (those who are married less than 2 years when they are granted their US permanent residence or “green card”) to remove conditions on their permanent resident status. When sufficient evidence is provided, USCIS will remove the conditions on the applicant’s US Resident status, and the applicant is then issued a “permanent” green card valid for 10 years. Removal of conditions is often the final step a green card holder needs to take before they can apply for US citizenship. Proving a bona fide marriage on an I-751 petition is critical to its success, and there are several documents that will establish a marriage’s bona fides. The burden of proof to demonstrate the legitimacy of the marriage is on the couple. They must present sufficient evidence that shows that their marriage was “bona fide at inception” and not simply to procure legal permanent residence.
In the event the marriage is no longer viable, due to abuse, separation or divorce, the conditional resident spouse can attempt to seek a waiver of the joint filing requirement. Even when filing an I-751 waiver, the applicant must still meet the burden of proving that the marriage was bona fide at inception. Those seeking a waiver based on abuse have a further hurdle and must also show battery or extreme cruelty during the marriage. Those seeking a waiver based on extreme hardship must demonstrate that in addition to a bona fide marriage at inception, the applicant would suffer extreme hardship if they were returned to their country of origin. We will discuss these hardship waivers in greater detail in a subsequent blog post.
Proving a Bona Fide Marriage
The United States Citizenship and Immigration Services created the concept of a “conditional resident” to prevent fraudulent marriages in which one of the couple, or both, enters the marriage for the aim of circumventing the immigration laws so as to falsely acquire immigration benefits. Fraudulent marriages entered for the purpose of obtaining a green card is a crime that can result in harsh penalties, including jail time and enormous financial fines, and can also lead the immigrant beneficiary to be issued a permanent bar to any subsequent visa petition under INA 204(c) and can lead to the initiation of removal proceedings. This law requires that the United States Citizenship and Immigration Services thoroughly investigate 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 the bona fide nature of the marriage is on the couple (or the conditional resident when filing alone), it’s best to start preparing for the I-751 petition as soon as you can. The wedding day is a great start. A well-prepared I-751 Removal of Conditions petition will help prove a bona fide marriage and could even avoid the necessity for an in-person interview.
Best Documents to Prove a Bona Fide Marriage
While a marriage certificate demonstrates the legality of a marriage, it doesn’t prove that the marriage is bona fide, entered in good faith and is not simply for the aim of procuring an immigration benefit. A marriage certificate alone is not sufficient evidence. Rather, when filing an I-751 petition, you want to submit copies of as many documents as you can to further prove the bona fide nature of your marriage and to demonstrate the circumstances of the relationship from the date of marriage to the present. In fact, documents that pre-date your marriage also can aid in proving the bona fides of a marriage (such as pictures of how you met and your courtship). There are many documents that aid in proving this, and they are often divided into several categories;
Proof of Intimacy
Given that the I-751 is usually filed within the 90-day window just before the expiration of the conditional resident’s two-year green card, the overwhelming majority of couples who file form I-751 petitions are newlyweds. As newlyweds, couples are usually still within the “honeymoon phase” of marriage and typically 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 documents or records which could 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, in addition to 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 spouse
– Letters or cards from friends or family congratulating you on your wedding, anniversary, or other joint life events
– Proof that each spouse met or communicated with the other spouse’s family (including pictures, letters, cards or emails)
– Phone or text messages that show regular communication with one another
– Social media records like screenshots 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 real marriage. While it’s not necessary to have children born into the marriage (or have any children at all), it’s a great indication that that marriage is a bona fide one. Adopted or stepchildren raised within the household also help establish that the marriage is real.
The following are examples of documents or records which could 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 stepchildren (pictures, trip itineraries, school records, affidavits from friends, family, and teachers)
– Medical records showing efforts to become pregnant or an ongoing pregnancy
– Listing the non-related parent as an emergency contact for a stepchild 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 commingling that nevertheless exist.
The following are examples of documents or records which could be used as evidence of commingling of finances:
– Bank statements for joint checking, savings, and credit card accounts
– Voided and canceled checks for joint accounts
– Statements for joint loans or loans where one spouse is the co-signer for the other spouse
– Copies of bank statements from separate accounts and canceled checks showing that you only share jointly in your financial responsibilities and large purchases (for example, if each spouse pays half the rent from a separate account or if each spouse paid one half towards the acquisition 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, telephone, etc.)
– Jointly filed tax returns showing both names
– Documents showing joint ownership of real estate, 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 isn’t always the case, it’s a great indicator and good proof that helps establish that a marriage is real.
The following are examples of types of documents or records which could 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 a similar address
– Bank statements showing a similar address
– Voided or canceled checks showing a similar address
– Utility bills showing a similar address (electricity, water, gas, trash, cable, internet, telephone, etc.)
– Property insurance agreements, statements, or cards showing a similar address
– Health or life insurance statements showing a similar address
– Correspondence from friends, family, or businesses showing a similar address
– Affidavits from friends, family, neighbors, or landlords attesting to cohabitation
Letters and Affidavits
Finally, evidence from others attesting to the authenticity of a marriage can help demonstrate that it’s legitimate. Consider asking your friends, family, neighbors, and employers to write about the genuineness of your marriage. These letters or affidavits can help support the 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 connection and marriage. (These people may also be asked to testify before an immigration officer regarding the information they provided in their statements.)
If submitting letters or affidavits, make 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.
Circumstances Which May Cause Extra Scrutiny Over your I-751 Removal of Conditions Petition
USCIS officers review every I-751 petition. According to section 21.3 of the Adjudicator’s Field Manual (AFM), the agency manual that USCIS officers use to guide their adjudication of immigration cases, there are several factors that serve as warning signs of possible marriage fraud. These factors include:
– Large age disparity;
– Inability to speak each other’s language;
– Family or friends 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 the couple should have common knowledge;
– No cohabitation since marriage (although there are valid reasons for some);
– Beneficiary is a friend of the family;
– Petitioner previously filed petitions on behalf of foreign nationals, especially foreign national spouses.
While these factors alone may not demonstrate a sham marriage, they will raise red flags and further probing by the USCIS officer. If any of these circumstances apply to you, you should expect additional inquiries and questioning from USCIS. For example, a large age disparity isn’t a sufficient basis to deny an I-751 petition. However, it’s enough reason for USCIS to require additional proof that a real marriage exists. Another example is if you live in a different place than your spouse. While certain employment, like military service, might be a reasonable explanation for not cohabitation, such facts will create the necessity for extra evidence. If the officer is still not satisfied with your evidence and answers to their questions, they may refer your case to officers of the Fraud Detection and National Security Directorate (FDNS), a special office inside the agency. The FDNS officers will conduct a further investigation into your case, and may even visit your home to determine who is living with you.
While many examples are listed here, they should not limit the scope of what may be used as evidence to prove that a marriage was bona fide at inception. Similarly, the documents listed here do not guarantee that an I-751 petition is going to be approved.
Anything that you may consider relevant, or anything that would establish that your marriage was not entered into merely for the purpose of evading U.S. immigration laws, can be submitted with your I-751 Petition. When collecting documents, consider the activities and responsibilities of a typical marriage experience. By providing these samples of routine life events experienced together, you’ll build a strong case that the marriage was entered into in good faith and have a great chance of obtaining your permanent 10-year green card.