Reuben S. Seguritan

Problematic Relative Petitions

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A US citizen or a lawful permanent resident (LPR) petitioner may encounter a number of issues when filing for his/her spouse. Commonly encountered are issues relating to the petitioner’s previously filed petitions, huge gap in the age of petitioner and beneficiary, their cultural differences, language barriers and other USCIS-identified marriage fraud indicators.

The USCIS looks into previously-filed petitions when adjudicating a petition currently pending before it. There is no prohibition on filing multiple petitions; however, an LPR who obtained his residence through prior marriage cannot file a petition for a spouse within 5 years of the date when he became an LPR. To overcome this prohibition, the LPR must establish by clear and convincing evidence that the prior marriage was entered into in good faith or it ended through death.

Marriage entered into solely for immigration benefits is considered fraudulent and are not recognized for immigration purposes. The USCIS looks at a number of factors indicating sham marriage or where the couple lacks the intent of establishing a life together at the time of the marriage.

The following factors could be interpreted as indicating sham marriage: huge gap in the age of petitioner and beneficiary, their inability to speak each other’s language, vast difference in cultural and ethnic background, family and/or friends are unaware of the marriage, the marriage is arranged by a third party, discrepancies in the statements on questions for which a husband and wife should have common knowledge, no cohabitation since marriage, and petitioner has previously filed petitions on behalf of prior alien spouses.

Where there is a large disparity of age between the petitioner and the intending immigrant, the USCIS will scrutinize the relationship more thoroughly to determine whether they married in good faith. It is easier for couples who have been married for many years to provide documentation proving that they have a bona fide marriage.

Evidence of good faith marriage include proof of combined financial resources, shared residence, proof that beneficiary is listed as petitioner’s spouse in insurance policies, tax forms, bank accounts and other evidence such as photographs.

The petitioner must prove by a preponderance of evidence that the marriage is bona fide. For recently married couples who cannot provide proof of shared residence as the beneficiary is still living abroad, it is best that they document their correspondence and collect as many documentary evidence of the time spent together.

Another fraud indicator is where the petitioner and intending immigrant speak different languages. In this case, the USCIS will investigate as to how the spouses are communicating with each other and whether they are trying to learn each other’s language. As to vast difference in religious and cultural beliefs, the USCIS will most likely look into how the couple will celebrate the holidays and how they will practice their religious beliefs.

Where fraud indicators are present, the USCIS will review and examine the relationship with more scrutiny, and may conduct investigations and field examinations.

 (Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, log on to www.seguritan.com or call 212-695-5281.)

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