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Proving a bona fide (valid) marriage

In important part of the marriage-based immigration process is proving that you are in a genuine relationship. What sort of evidence should you submit? How much should you submit? These are questions that almost everyone has. The bottom line that I always tell my clients is this: if you are in a genuine, committed relationship don’t worry – we will be able to prove it. We have never, not even once, lost a marriage-based immigration petition. Every case is different, because every relationship is different. So what works in one case doesn’t necessarily work in another case. With that being said, I’ll describe some of the most common materials we submit in support of our clients’ cases.

If there is one rule of thumb for evidence it is this: focus on quality over quantity. You can submit 1,000 pages of documentation, and in rare cases I’ve filed that much. But in the vast majority of cases you can provide a strong packet in fewer than 100 pages. Frankly I think it is unprofessional of an attorney to indiscriminately cobble together every possible piece of supporting paperwork. It is also unpersuasive. Instead, work to produce a packet that tells a concise, compelling story about your relationship. It is my opinion that concise packets convey the strength of the application, rather than looking like a desperate grasp at all possible evidence.

What is a bona fide marriage for immigration purposes?

The legal standard for a bona fide marriage is this: did the bride and groom intend to establish life together at the time of marriage? If the answer is yes then the marriage was bona fide for immigration purposes. The issue, however, is proving the couple’s intention to start a life together – that’s where the evidence comes in.

The immigration service identifies a number of factors that it associates with fraudulent marriages. None of these factors automatically means that a case is unwinable, only that it will face increased scrutiny. The factors are:

  • Large disparity of age;
  • Inability of petitioner and beneficiary to speak each other’s language;
  • Vast difference in cultural and ethnic background;
  • Family and/or friends unaware of the marriage;
  • Marriage arranged by a third party;
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States;
  • Discrepancies in statements on questions for which a husband and wife should have common knowledge;
  • No cohabitation since marriage;
  • Beneficiary is a friend of the family;
  • Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.

Evidence of joint financial obligations

The immigration service expects that most genuine couples will share at least some joint financial obligations. The classic example would be a couple who have all their assets in joint accounts, and are jointly responsible for all expenses. But understand there is absolutely no requirement that you have this “traditional” arrangement. We have had many clients who have almost completely separate finances. There is nothing wrong with that arrangement, and no reason that it will necessarily prevent a case from being approved. You should not rearrange you finances merely because you believe it will make your case look better to the immigration authorities. Set your life and your marriage the way that works for you, then explain it.

For couples who do have some or all of their finances in joint arrangements, here is the documentation we would typically ask for. Look at the documents carefully. Sometimes even a joint account will list only one person’s name on account statements. In such cases we get letters from the financial institution, confirming when the account was opened and who is on the account.

  • Bank statements for checking and/or savings accounts. Where available we provide these going back one year. There is almost never a reason to go further than that. In the majority of cases our clients have opened the account(s) only recently. That’s fine, but it should be an account that is actually used, not just one that was opened for purposes of the immigration application. The account statements should reflect that there’s real activity on the account to cover joint expenses. Still, the account doesn’t have to be used for all of a couple’s expenses. We have had multiple clients who used a joint account only for rent, or rent and groceries.
  • Credit card statements for joint accounts. The same rules apply to credit cards as bank accounts. Provide statements going back up to one year, if available. And the account should be actually used.
  • Insurance. This is a big one. If one spouse is listed on the other spouse’s medical insurance, or as a beneficiary for life insurance, this should be documented.
  • Jointly-filed income tax returns.
  • Auto insurance and registration. showing both spouses as carriers and owners.
  • Wire transfers. If one spouse has been sending money to the other, this should be documented.

Evidence of co-habitation or time together

Co-habitation.

Often a couple has already been living together before they start the immigration process. We see this where – for example a couple has been living together in a foreign country, and are now both relocating to the U.S. It also happen where a couple has been living together in the U.S. prior to marriage and is now getting married and starting the immigration process. In either event, if the couple has already been living together this is very strong evidence that the couple intends to have a joint life together (remember, that is the legal question). For such couples we would provide substantial documentary evidence of the shared residential address

  • Property ownership. Obviously if you own real estate jointly with your spouse this needs to be in your packet -in practice this is rare, largely because it is virtually impossible for a foreign citizen to get on a mortgage before her green card is approved. If you do jointly own property, however, you should provide a copy of the deed, and also a current mortgage statement if applicable.
  • Lease agreement. If you and your spouse are both listed on a rental agreement this should be provided. It is common for the lease to be in only one spouse’s name, in which case you should request a letter from your landlord on office stationary. You can also request to have the second spouse added to the lease as a co-leasor, or simply listed as an authorized resident.
  • Utility, phone, internet and/or cable bills. This is probably the most common way we demonstrate current co-habitation. Go back no further than one year, generally.
  • Identification card(s) such as driver’s licenses. Your driver’s license is an easy way to show your current address.
  • Credit report. You may request your credit report free of charge from many online service providers. This report can help show co-habitation.
  • Car/auto registration.
  • Envelopes of letters sent to the residence.

Time together

It is also common to have cases where the couple has not yet lived together. This is common where the couple’s professional lives have kept them in separate locations. If the couple hasn’t lived together, it can still be important to document the time they have spent together. This usually takes the form of documentation one spouse’s travel to visit the other spouse. You can also show documentation of trips taken together.

  • Travel itineraries. Provide flight information showing travel to and from the destination. An email confirmation from the airline is sufficient; you do not need the tickets themselves.
  • Hotel reservations. Confirmation emails are fine.
  • Passport stamps. Entry/exit stamps, if applicable, from the country visited.
  • Smart Traveler Enrollment Program. The U.S. State Department allows U.S. citizens to register their foreign travel on this website. This is an easy way to create an official record of your travel to visit your foreign spouse.

Evidence of shared social life

Declarations by friends and family

Most married couples share similar social circles. The immigration authorities reasonably expect that your friends and family at the very least know about your relationship with your spouse; in most cases they will expect your friends and family to have had substantial contact with your spouse. One of the questions I see asked most often in marriage interviews is whether one spouse has been in contact wit the other spouse’s family.

In every single marriage case we file our firm submits statements by friends and family members who know the couple. There might be a reason some case might be filed without these, but I can’t think of it. At an absolute minimum plan on filing two supporting declarations, and more could be called for. But focus on quality over quantity. Two strong declarations are worth far more than 10 short, impersonal ones.

What should the declaration include? Here are some guidelines based on the instructions we provide declaration writers in our cases.

  • The declaration should be drafted in letter format.
  • The declaration may be hand written or typed. Handwriting is fine, and can lend a personal touch, as long as it is legible.
  • The declaration may be written in a foreign language if a translation is provided. The applicant is allowed to translate this (or any other) document, so long as the translation contains the following certification: “I [name], certify that I am fluent (conversant) in the English and [enter appropriate language] languages, and that the above/attached document is an accurate translation of the document attached entitled [enter title of document].” This must be followed by the translators name, signature, address and date.
  • Explain to the declaration writer that she has been asked to write a legal statement (called a declaration or affidavit) in support of an immigration application.  Explain that immigration law you to prove that you are in a genuine marriage, and that this marriage was not entered into for fraudulent reasons.  Essentially, the immigration service needs to understand that this is a “real” marriage.
  • The declaration should include all of the following information: writers full legal name, home address, date and place of your birth, name of the person (you or your spouse) for whom the declaration is being written.
  • Important: the declaration should explain how the writer knows the couple for whom she is writing the declaration.
  • Important: the declaration should explain why the writer believes the couple is in a genuine marriage.  It should explain what they are like as a couple and what they have done together. The declaration should explain anything the writer has done with the couple (parties, vacations, community/church events).
  • If the declaration writer has photographs of herself with the couple, or of the couple together, those should be attached to the affidavit.  The declaration should explain the photographs to help the reader understand where they were taken.
  • The bottom of the declaration must include the following statement, then be signed and dated: “I declare upon penalty of perjury, pursuant to the laws of the United States, that the foregoing statement is true and correct.”
  • It is okay to submit a copy of the declaration rather then an original. This can be a big help if the writer lives in another country.

Declarations by the applicant and petitioner

Unlike many other immigration attorneys I do not normally submit a sworn declaration by the foreign spouse (applicant) or U.S. spouse (petitioner). Why? In both consular visa cases and adjustment of status cases the applicant is going to be interviewed. That interview is going to carry far more persuasive weight than the applicant’s carefully formulated statement. At the interview the officer can the applicant’s testimony in the context of body language and voice intonation. It is a more natural and more communicative way for the applicant to tell her story. By contrast, written statements by the applicant tend to come across as dry and/or cheesy. Sometimes even if a written statement is very heartfelt and genuine it comes across as fake. Unless the applicant is an accomplished writer it can be very hard to do justice to a relationship in a written declaration. How do you explain why you love you spouse? It’s hard, and in my experience it’s also not necessary for a successful application.

Note that fiancé(e) visas are a different matter. For those you do need a sworn statement that addresses both: (1) that the couple met in person in the past two years, and describing the circumstances; and (2) the couple’s intention to get married within 90 days of arriving in the U.S.

Photographs

Ah, photographs. This is by far the evidence we spend the most time with, and that our clients have the most questions about. First, two basic points: (1) like all other evidence there is no specific number of photographs that is the “right” number to submit; and (2) focus on quality over quantity.

What makes for a good collection of photographs?

  • Both members of couple. This is obvious, but ideally you will have photographs of both of you in the same frame. In reality, it is very common for couples not to have too many pictures together. My wife and I traveled together for almost a year, and I think we have fewer than 20 pictures of us together. If you don’t have many pictures together try to find pictures where you were together (even if not both in the picture frame) and explain the context in a declaration attached to the pictures.
  • Different times, locations. It’s not helpful to have 60 photos from that one great night at Applebees. Even if it was a really great night. Instead, try to represent a diverse range of places over the longest possible time.
  • Don’t ignore the mundane. If you have traveled to five continents together that’s wonderful. We’ve filed plenty of great travel photos of our clients, and those can be compelling. But equally compelling can be photos of your normal, day-to-day life. Did you take a picture of your husband that time he spilled ketchup all over his white shirt? Maybe an non-glamorous photo of what he looks like sleeping on the couch? These sort of photos tend to look less posed and more genuine than a lot of the “big event” photos.
  • No pornography, please. I wish this didn’t have to be mentioned, but it really does come up. The immigration service does not need nude photos or those taken in intimate circumstances. Enough said.

In terms of number, my rule of thumb is between 10 and 50. At the firm, we organize the photos digitally, then print them four or six per page. In some cases we will insert them into a Microsoft Word document, and have our clients write explanations next to them. You can also write numbers on the photos, then reference those in a declaration – either is fine. The photographs do not need to be in color. They also do not need to be printed on fancy photo paper and instead should be printed on normal printer paper along with the rest of the application packet.

Wedding-related matters

In almost all marriage-based immigration cases you will want at least some evidence of the wedding ceremony. This can be more or less important largely depending on how substantial of a ceremony it was. For a client who has been married three times and has a simple courthouse wedding, we might provide only a few pictures. But if a client has had a $100,000 gala with hundreds of guests, that’s certainly a different matter.

In addition to photographs (see above), you may want to consider providing:

  • Rental contract for wedding venue.
  • Receipts for substantial wedding-related purchases, such as a ring or wedding dress.
  • Sample wedding invitation.
  • Gift registry.
  • Guest list.
  • RSVPs from guests.

Communications

We generally provide communication-related documents only in cases where the couple has not been living together. This evidence is relatively weaker than other categories, and where we have plenty of other evidence this is a category we often leave out. But for couples who have a had a mostly long-distance relationship, showing the communications history can be vitally important.

What’s the best communications evidence to use? Usually the couple will have one media platform – let’s use WhatsApp as an example – that they have primarily used. Focus on documentation the length and depth of the communications history. For a couple who has been messaging on WhatsApp for a year, we might get a sampling of screenshots, with a few from each month over the course of the year. As with my point about declarations (above), I like to avoid to much over-the-top love talk. It just looks fake. Instead, use conversations you’ve had about either mundane topics (“the dumbest thing happened at work today”) or concrete life plans (“what are we doing for Christmas?”). Also, generally avoid to much sexual talk – it’s just not needed.

Last will and testament

This item is often ignored, but can be a very strong piece of evidence. Importantly, a will can be very helpful to a couple without a lengthy history together. A will can show a strong commitment between the spouses. If you don’t yet have a will, it can be worth the time and expense of drafting one before starting the immigration process. Anyway, for most people this is a good piece of legal housekeeping to check off the list.

Conclusion

Remember this above all else: if you are in a genuine relationship to a spouse you love, this will come through in your immigration application. Even if you have a relationship that might not be “traditional” there will be a way to tell your story – you just have to figure out what that is. The evidence described above covers almost everything we’ve used for our clients, and we haven’t lost a case yet (knock on wood). If you have questions about particular types of documentation ask in the comments section below and I’ll do my best to answer.

Photo credit: Nuttakit

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Greg McLawsen

I’m proud to be the founder of Sound Immigration. My job is to work behind the scenes to ensure our clients have an outstanding experience at our firm. I’m passionate about reinventing the practice of law to make it work better for those we serve. I work hard to identify the best available technology to make our firm convenient for clients. I look to other industries, like real estate and the restaurant business, to learn about practice that will help serve our clients better.

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