Marriage case approved despite physical separation

FACTS:

A large majority of immigration cases involve love and marriage. The US provides unlimited visas to US Citizens who file on behalf of their spouses, children and parents (called “immediate relatives”). This is a generous and foundational element of US Immigration law. But, as the great bard said:

. . .For aught that I could ever read,

Could ever hear by tale or history,

The course of true love never did run smooth.

—Spoken by Lysander in Shakespeare’s A Midsummer Night’s Dream, Act 1, scene 1, lines 134–36

A client met and fell in love with a US Citizen. The marriage took place and the couple began what they hoped would be a happy life together. Not long after marriage, the couple sought out legal advice since the wife was in the US without valid immigration status (having entered many years ago on a tourist visa).  They retained our office to prepare and file a Petition for Alien Relative (Form I-130) and Form I-485, Application to Adjust Status to seek a “green card” in the U.S.

After some time, USCIS called the couple for an interview which went well. But, after being interviewed, nothing happened. USCIS appeared to have dropped the case in a “black hole.” For years, our efforts to obtain a final adjudication on the case failed. We repeatedly advised the client to sue for Mandamus (see other posts relating to this form of relief), but the client did not pursue this option.

During this long wait, the couple began having marital difficulties and eventually separated (physically, but not legally). The marriage was on the rocks and eventual divorce seemed probable.

After their physical separation, but before they had filed for divorce, USCIS called the couple for another interview on their marriage case. The client came to our office to ask what to do. Her spouse was not interested in pursuing the case and did not want to attend the interview. She was desperate and concerned that USCIS would automatically deny the case.

THE LAW:

The Board of Immigration Appeals and Federal Courts have long accepted that mere physical separation of a couple, even if that separation suggests non-viability, does not prevent approval of an otherwise valid marriage-based Form I-130 Petition.  In a series of well-established cases, the BIA (the court that directly overseas the running of US Immigration offices at USCIS) supports approval in cases where the petitioning spouse and foreign national beneficiary entered into their marriage in good faith AND the couple has not yet undertaken a legal separation or become divorced.

In cases such as these, it is NOT NECESSARY for USCIS to deny an otherwise valid marriage just because the couple has separated! Rather, the sole question USCIS must answer is whether the marriage was entered into in good faith.

USCIS has long applied the test of “fraudulent at inception” to guide a “good faith” marriage determinations. In essence, USCIS asks whether the couple intended to establish a life together at the time of their marriage. If the answer is “yes”, then a marriage is valid for immigration purposes. See, Lutwak v. U.S., 344 US 604 (1954); Agyeman v. INS, 296 F.3d 871, 883 (9th Cir. 2002); Bark v. INS, 511 F.2d 1200 (9th Cir. 1975). These cases instruct USCIS to examine the intent of the parties at the time they entered into the marriage.

If USCIS can be convinced that the marriage was ENTERED INTO in good faith, there is hope of approval of the case.

THE RESULT:

This client was very concerned that her separation would automatically cause USCIS to deny her case. But, after carefully explaining the law, we convinced the client to gather evidence in support of her marriage, work hard to explain WHY the couple had separated, and to prepare for the interview. The client went to the interview without her spouse, explained her reasons for separation and provided a believable (truthful) and heartfelt account of what had happened in her case.

USCIS listened carefully and eventually GRANTED the Application – allowing the client to obtain US Lawful Permanent Residence! She is now a happy Green Card holder free to move on with her life.

DISCLAIMER: All Case Results published here depend on specific facts and legal issues unique to the case. It is impossible to guarantee any results.