Marriage-based green cards make up one-fourth of the total approved lawful permanent resident cards issued by the USCIS, making it one of the most popular routes to the United States permanent residency. Interestingly, this seemingly simple immigrant visa classification is also the most scrutinized by immigration officers.
Visa fraud has been rampant in marriage-based green card cases in the past, therefore, applicants are expected to be above board throughout the process. Otherwise, the chances of denial go up considerably. This article will guide you on how to make your application both a smooth and successful process. Additionally, if your petition has been denied by the USCIS, we will go over the necessary steps to take.
Marriage-Based Green Card Eligibility
You may be eligible to file a marriage-based green card if you are married to a U.S. citizen or permanent resident. While a marriage to either may be the prerequisite for U.S. eligibility for lawful residency, it doesn’t automatically translate to the approval of a green card. The three most crucial factors in the marriage-based green card application are to prove:
- that your marriage is bona fide;
- that you (the citizen or lawful resident) meet all the requirements for sponsoring a marriage-based green card; and
- that the beneficiary foreign national spouse is eligible to become a lawful permanent resident in the U.S
Your petition approval or denial will be based on your ability to prove the three factors convincingly. You will be taken through each of the following stages:
Step 1: I-130 to Establish Your Bona Fide Marriage
The I-130, Petition for Alien Relative is the first stage in your marriage-based green card process, and this form must be filed by the petitioning spouse. The idea is to prove that you two were married for genuine reasons and not just for immigration purposes. The immigration officers will need you to confirm that you married with the intent to live together as a family. If both or any of you had previously been in another marriage, you must provide evidence that the former marriage was lawfully dissolved. The USCIS usually investigates any claims made in your I-130 petition, and any detection of falsehood will ultimately impact the entire process.
Step 2: I-485 or DS-260 to Apply for Marriage-Based Green Card
The beneficiary spouse will also need to file either of these two forms above as applicable. If you are already in the U.S., you will file an I-485 to adjust your status. If you are overseas, you will go through consular processing and file a DS-260 for an immigrant visa. Each of these stages has its requirements, and missing the mark on any of them could lead to denial.
Step 3: Attend the Green Card Interview
The immigration interview is the last stage of your application process and must be attended whether you are in or outside the U.S. This is a crucial part of the journey, as your green card can be denied here even if your I-130 has been approved.
What Are the Causes of Marriage-Based Green Card Denial?
From the above three stages, the immigration officer will assess you and your case. If everything goes well, your application will be approved. However, a marriage-based green card denial can be based on the following issues:
Failure to Prove the Legitimacy of Your Marriage
This is the first test of your marriage authenticity. The USCIS must be convinced that the marriage is deemed bona fide and that it is not a fraudulent union with the purpose of immigration. Failure to provide a recognized marriage certificate and other relevant documents is one of the top causes of denial. Additionally, any red flags that appear throughout the process could result in having the immigration officers interview you and your spouse separately to determine if your answers match.
Filing a wrong form at any stage of your application process is one of the causes for denial. Missing, omitted, incorrect, or inconsistent information on these forms will also result in delays and possibly a denial of the application.
Submitting Incorrect Filing Fees
There is a fee for each marriage-based green card form that must be submitted along with each of the forms. Not filing the right fees might lead to a rejection or denial of your petition.
Inability to Prove Financial Requirements
The petitioning spouse needs to prove that he or she has sufficient income to support the green card beneficiary financially after entering the U.S. The government tends to avoid admitting immigrants who may become a public charge. If you fail to show evidence of at least 125% of the federal poverty guidelines, your green card petition may be denied.
Inadmissibility on Health Grounds or Criminal Record
As part of the process, you will need to undergo an immigration medical examination. The exam will be conducted by a USCIS or U.S. embassy-designated physician and its result will be used to determine your health status.
If it is discovered that the beneficiary has any communicable disease that might pose a threat to the U.S. public health, or if the beneficiary has a substance abuse disorder, your green card application may be denied on health grounds. Also, a past criminal record may lead to green card denial. If you have been involved in arrested or convicted in the past either in the U.S. or elsewhere, failure to disclose this in your application is another reason for denial.
The marriage-based green card application has a checklist that contains information expected from each applicant. The documents must be submitted along with the required forms, and sometimes, when there’s a missing document, the USCIS may send you an RFE (Request for Evidence). Failure to provide the requested evidence may affect your chances of being approved.
Inappropriate Passport Photograph
A passport-style photograph is one of the mandatory items needed for your application. The size, color, and background must be according to what is recommended by the DOS.
Failure to Attend Interview
After your petition has been adjudicated by the USCIS or the embassy you applied through, you will be sent a notice of your interview date, venue, and time. It is best to appear on the given date. However, if you must miss your appointment for some reason, you will need to notify the immigration office after receiving the notice and reschedule another appointment for your interview. Failure to attend or respond to your interview notice may lead to eventual denial.
Poor Interview Performance
The officers examining marriage-based green cards usually scrutinize marriage green card cases more than interviews for other visas. Marriage-based green card interview questions are typically personal to help establish the kind of relationship that exists between you and your spouse. Your composure, dress, and how you answer the questions are all going to be assessed by your interview officer and will be used to make a decision on your case. Poor performance in the interview will be costly to your petition.
How to Avoid Marriage-Based Green Card Denial
Taking the right steps ahead of time and going through the process the right way can help you avoid a costly denial down the road. Here are some ways to prevent this:
File Forms and Documentation Appropriately
To start with, you must clearly understand what is required of your specific case both as the petitioner and the beneficiary. You need to be sure that you are both eligible, and you must be thorough in filing the right forms and ensuring no necessary information is missing. Double-check every form and document and be sure you sign the forms where appropriate before submitting.
Prepare Well for the Interview
The interview stage is another very important aspect. Both the petitioner and beneficiary will likely be interviewed along with any dependent whose name appears on the petition (though the interview may be waived for a minor under the age of 14). Before the interview date, review all of the documents together to avoid giving contradicting statements at the interview. You may be given a joint family interview or interviewed separately.
Involve an Experienced Attorney
While you may choose to go through the green card application process without any help, hiring an immigration lawyer remains the best way to guard against denial. An attorney with years of experience in marriage-based green card applications will help you prepare your petition as well as file the forms and documents the right way. During your interview, your attorney will also be there to give you the needed counsel legal representation.
Marriage-Based Green Card Denied: What to Do
If your green card application is denied, immigration law makes provisions through which you can file an appeal or a motion on the decision.
Marriage-Based Green Card Denial Appeal
An appeal is made to the USCIS Administrative Appeals Office or the Board of Immigration Appeals. Filing an appeal means you are requesting a third party to review the decision. You must submit the appeal within 30 after the decision is made using the form and the address shown on the decision notice. Generally, a well-filed request will be reviewed within 180 days by the AAO. However, these third parties do not make a habit of overturning USCIS decisions.
Marriage-Based Green Card Denial Motion
A motion is a request made to the same office that issued the decision to reopen or reconsider it based on newly available facts or an incorrect application of the law. Most motions are filed using the I-1290B and most USCIS field offices try to adjudicate motions within 90 days.
Does Filing An Appeal or Motion Change the Decision?
Unfortunately, filing an appeal or motion doesn’t delay the already issued decision from going into effect. For instance, if the decision includes a departure date, the appeal or motion cannot extend the date. Although there are some success stories of green card appeals, it is always better to prevent the denial from happening in the first place. If you must file an appeal or a motion, it is advisable to consult an immigration attorney first.
How Our Immigration Attorneys Can Help
Over the past few years, the green card denial rate has been on the rise. The 2018 fiscal year recorded a 37% denial rate for different immigration applications. To guard against this, you need to involve an experienced marriage-based immigration attorney in your application process.
At Immi-USA, we have a team of dedicated and highly experienced lawyers who have helped countless clients file and acquire their marriage-based green cards. For a petition that has already been denied, we can help you take the appropriate next steps. Also, if you have yet to apply for your green card, we will help you file the petition and avoid the potential pitfalls that could lead to denial. You can schedule a consultation with us today by filling out this free contact form.