By: Richard Hanus, Esq.
March 8, 2023
There are some moments in our lifetimes where we look back and vividly remember the exact sights and sounds, and no matter how far in the past or unsensational the moment. One of my favorite unforgettable immigration lawyer moments, was a simple, non–confrontational interaction with a veteran immigration officer at the then Immigration and Naturalization Service’s (INS) Chicago Field Office. It was the conclusion of a marriage-based adjustment of status interview of a foreign national and his U.S. citizen wife, and just after the officer announced she was going to approve the case and that a 2 year green card would be issued, she advised: “look, if we don’t get you in the wash, we’ll get you in the rinse”.
The Wash: The “wash” the immigration officer was referring to is the review process for the initial green card filing and more specifically, the scrutiny of the marriage that is the basis of the application. Is the marriage bona fide? Or was it entered into solely for the purpose of obtaining a green card? Those are the big questions at play when it comes to marriage based green card filings. Individuals seeking a green card based on a marriage to a U.S. citizen or resident must demonstrate that the marital relationship is for real and that the couple has a shared life together.
Applicants typically demonstrate the bona fides of their marriage by presenting various pieces of documentation confirming a shared residence or assets, like a lease, joint bank account statements, or the like. In general, no single document is absolutely critical and just as often as not, the assessment will depend on the couple’s testimony, body language and what “public records” reveal as the parties’ addresses, such as a credit check. Sometimes, the immigration officer will look into an applicant’s social media posts, and in more suspicious cases, order a fraud investigation and random home visit.
The Rinse: When the marriage is less than two years old at the time the initial green card application is approved, the foreign national will be approved on a conditional, two-year basis. Just before the two year conditional green card expires, the foreign national is required to file Form I-751 petition to remove the conditional basis, aka the rinse cycle, where US immigration authorities get a chance to revisit the marriage and the couple’s living arrangement. If the I-751 is approved, the foreign national is issued an unconditional and easily renewable, ten year green card.
In most cases, the couple continues to be together, and the I-751 is in the form of a joint petition, where both spouses sign off and submit more of the same shared life and residence documentation accumulated within the two year conditional period. Other times, the marriage at issue will not last the two years, but nevertheless, the foreign national individually may still have avenues to remove the conditional basis and remain living in the U.S., and without their U.S. citizen spouse’s cooperation. This latter process, known as an I-751 waiver filing, is certainly more complicated than if the couple remained together. Importantly, though, the I-751 waiver is indeed viable under the right set of circumstances, including if the applicant can establish via documentation and testimony the marital bona fides or that they were the victim of the U.S. citizen’s physical or extreme mental abuse. Unlike the process for most well documented joint I-751 petitions, an I-751 waiver petitioner will likely be interviewed once again by an immigration officer at the conclusion of the process.
Why is there green card marriage fraud in the first place and thus the need for the wash/rinse review cycles? With some exceptions, its generally about economics and a foreign national’s desperation to come to the U.S. to live, work and overall make a better life for themselves and their family. This does not excuse marriage fraud or other immigration law violations, it just explains much of it, along with the need for more user friendly laws that allow for more options for legal immigration. As it stands now, the avenues through which an interested, ambitious foreign national can come to the U.S. to work hard, pay taxes and make contributions to our society are extremely limited. Undoubtedly, if more options for U.S. legal immigration were available for foreign nationals and prospective employers, we would see a significant decrease in the frequency of marriage fraud cases. In the meantime, the wash and rinse cycles continue.
PUBLISHED March 8, 2023 – “IMMIGRATION LAW FORUM” Copyright © 2023, By Law Offices of Richard Hanus, Chicago, Illinois