Uptick in Green Card Denials for Self Represented Spouses

In the past month, U.S. immigration lawyers have noticed an uptick in denials of U.S. permanent residence to married couples who have filed joint petitions with USCIS on their own. For instance, USCIS now seems to be on the lookout for permanent residence petitions that were filed less than a month after the alien spouse (i.e. “foreign national spouse”) entered the USA on a B-2 tourist visa.

This is especially interesting in the sense that USCIS has been denying these petitions/applications outright without even issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), both of which would have given these married couples the opportunity to provide additional supporting documents for consideration by the reviewing USCIS officers.

When a person enters the USA on a tourist visa and promptly thereafter gets married and requests U.S. permanent residence, it raises a red flag with USCIS. There is a concern that the alien is trying to sidestep the appropriate U.S. Consulate and file for permanent residence from inside the USA rather than outside the USA as is the normal procedure. A quick marriage suggests that the alien pretended to be entering the USA for the purpose of partaking in tourist activities and returning home when he actually intended to marry someone and then stay in the USA forever. That is obviously fraud, and is a violation of U.S. immigration law, specifically INA § 212(a)(6)(C)(i).

For a finding of fraud to occur, all of the following elements (i.e. “requirements”) must exist:

·        The alien procured, or sought to procure, a benefit under U.S. immigration laws;

·        The alien made a false representation;

·        The false representation was willfully made; 

·        The false representation was “material” (i.e. “significant”); and

·        The false representation was made to a U.S. government official, generally an immigration or consular officer.

If the alien can show that any of the above requirements was not satisfied, a finding of fraud is impermissible. If this is confusing, speak with a U.S. immigration lawyer for clarification.