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Potential Denial with No Interview for Removal of Conditions
Source: (www.murthy.com) Posted Feb 24, 2006
The USCIS announced an important procedural change for I-751s, Petitions to Remove Conditions on Residence cases, effective as of January 30, 2006. The change will result in some I-751 cases being denied without interviews. The memorandum can be found on the USCIS WebSite.
The I-751 form is filed by an individual who obtains permanent residence via a U.S. citizen spouse's petition when the marriage was entered into less than two years prior to the green card approval. In these situations, as an anti-fraud measure, the green card is considered "conditional." This means that only the individual's status is valid for two years, until the I-751 is filed and approved, removing the conditions and granting the individual final permanent residence status.
The January 30, 2006 USCIS Memo delegates the authority to deny I-751s to the USCIS Service Center directors in cases where it is clear a marriage was entered into in order to evade immigration laws. These are cases in which marriage was used solely to obtain the green card and not for genuine marital purposes. In addition to the USCIS District Offices, the Service Center directors now have the authority to deny these cases.
PRE-MEMO PROCEDURE
Clearly Bona Fide Cases
Under the procedures in place before the January 30, 2006 Memo, the interview could be waived by the Service Center in any case it was convinced was based on a marriage that was bona fide. In a situation where the evidence was sufficient to reflect a bona fide marriage, the case could simply be approved by the Service Center without the need for an in-person interview at the local office.
Questionable Cases
Prior to this Memo, a case that was questionable in terms of whether it was bona fide would be forwarded to the local USCIS office for an interview. The local offices would conduct personal interviews with the parties to the marriage prior to making a final decision. Now, under the January 30, 2006 Memo, some of these cases can be denied without the in-person interview.
NEW PROCEDURE
Forward to Fraud Unit
Under the new procedures, if the USCIS Service Center finds that the evidence in a case reflects that the marriage was entered into fraudulently, the case will be forwarded to the Office of Fraud Detection and National Security (FDNS). They will review the case and present their findings in a memo to the Service Center.
Findings of Fraud Unit
If the FDNS verifies the fraud, the Service Center will issue a Notice of Intent to Deny (NOID) and accord the petitioner the ability to rebut the evidence in writing. This will be reviewed and a decision will be made. If the FDNS does not verify the fraud, the case can be sent to the local USCIS office for an in-person interview.
Recommendations When Filing I-751s
This change in procedure makes it vital for one to properly document any I-751 filing. It should not be assumed that additional evidence can be presented at an in-person interview. The case should be filed upfront, with complete documentation, in order to persuade the USCIS at the Service Center level that the marriage is bona fide.
Questions about suitable types of evidentiary support should be discussed with an immigration lawyer. No one should create documentation to prove a marriage and there is no one piece of proof that is absolutely needed to show that one's marriage is bona fide. It is more in the nature of being able to substantiate clearly interconnected lives, as appropriate for a married couple. Couples should keep this documentation and have it organized and ready to present when needed.
Conclusion
When filing the I-751, besides filing a properly prepared package, there are other considerations. There is the problem of the angry spouse letter, often accusing the foreign national of marrying to get a green card. We would hope that these will continue to be reviewed in the proper light, as angry and unacceptable accusations that often follow failed, genuine relationships. Such letters should not be sufficient for a denial, or worse, for fraud allegations, absent additional evidence.
The USCIS takes the issue of fraud in the marriage context very seriously. There are severe and long term immigration consequences of involvement in an attempt to obtain immigration benefits through a fraudulent marriage. Thus, we at the Murthy Law Firm strongly caution anyone who is contemplating such a marriage against taking this action.
This post has been edited by gustahot: 02 February 2008 - 11:58 PM
