By: Gary Chodorow (gary@fwhonglaw.com) and Jacqueline Lentini McCullough (jacki@lentinivisas.com)
Date: Aug. 20, 2009

Do you have a pending immigration case that will require you to prove the validity of your marital relationship to the U.S. Citizenship and Immigration Services (“USCIS”) or to a U.S. Consulate?

If you are applying for a K-1 fiancée visa, you should be gathering proof that you intend to enter into a real marriage. Similarly, if you are applying for an immigrant visa or adjustment of status on the basis of marriage, you should be gathering proof that you already have a bona fide (“real”) marriage.

This article describes 10 things you can do to better document your relationship.

1. Open a Joint Bank Account: I understand that it’s not possible to open a joint bank account in some countries, like China. In some situations, it’s possible to open a joint account in the U.S. by providing some identifying documents to the bank. It’s best if you both actually use the account by depositing and withdrawing money.

2. Apply for a Joint Credit Card or Debit Card Account: Commingled finances is one of the most significant factors that USCIS or a Consulate will use to determine a real marriage.

3. Amend your Lease: Do you live together but only have one name on the lease? Ask the landlord to amend the lease to include both names. Also collect other evidence that you live together, such as rent receipts showing both your names, ID documents (e.g., driver’s license) showing the common address, and correspondence to each of you at that address.

4. Phone Records: Document your phone calls to each other, especially if you live apart. This is easy to do if you get a monthly bill with a detailed list of calls you’ve made. But don’t use an international phone card that doesn’t give you a detailed statement. One cheap alternative is to use Skype (www.skype.com) for international calls. In the Skype program, you can click on View > History to see the history of all ingoing and outgoing calls (phone number, date/time, the other party’s name if on your call list, plus your account name). Use a screen printing tool to print the list. The history only goes back 6 months, so print it out a couple times a year.

5. Go High Tech: If you’re a technophile who sends instant messages (IMs) and text messages (SMS), prove it. For example, in Skype, click on View > History to find your last IM or SMS conversation with your significant other, then in the message screen choose “show messages from beginning.” Again, the history only goes back 6 months, so print it out a couple times a year.

If either of you are on Facebook or other social media, take note: the government is watching. USCIS and consular officers both report that they may look at social media when investigating the validity of a relationship. You can use social media to document your relationship. Also, it may be wise to censor yourself by avoiding mention of any activity that may be illegal or reflect poorly on your moral character.

6. Remittances: Assuming you have no joint bank account, in cases where fiancées or spouses live apart, it’s still not uncommon for one to give financial support to the other. Instead of giving cash, transfer the money in a form that is easily documented. Western Union, MoneyGram, and bank wire transfers are good because they show the receipts show the name of the sender and recipient. These methods are also convenient, but they may be expensive. You may be able to save money by both opening accounts with the same bank. Also, some banks—such as Washington Mutual—have offered free wire transfer services to account holders. When you transfer money, it may be helpful to send a note regarding the purpose (e.g., “Money to buy a new motorcycle”).

7. Take a Trip Together: Proving that you’ve taken a vacation together is a great way to show you have a real relationship. Make sure to keep your air tickets, hotel reservation/registration/bill with both of your names, photos, and passport stamps (if you travel abroad).

8. Meet the In-Laws: If each of you still haven’t met your respective in-laws, make the effort. It’s best to meet them in person—document the trip and take photos together. If you can’t meet in person, then try communicating by phone (document the call), mail (e.g., try sending a birthday card or Christmas card), or via the web (IM or SMS).

9. Beef up Your Photo Album: Organize your pictures chronologically. Include photos from the entire span of the relationship, from the time you met until now. Don’t just show the two of you alone, but also friends and family. It’s ideal to use a camera that automatically puts a date stamp in the photo. Add a caption to each photo describing the occasion, place, date, and persons in the photo. Note, however, that USCIS will not return any photographs, so make sure you have copies for yourself. See a sample photo album here: www.fwhonglaw.com/ivlinks.htm.

10. Tell Your Employer: Your employer usually wants to know information about a relative or friend who will be your emergency contact and/or the beneficiary of any life or health insurance policy provided by the company. Give your fiancée or spouse’s name and make a copy of the form.

 

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Of course, some relationships are easier to document than others. On one extreme, it should be easy to document your case if you already married in an elaborate ceremony with hundreds of guests, have a child together, have jointly owned real estate and bank accounts, and file joint tax returns with the U.S. Internal Revenue Service. On the other extreme, it will be a challenge to document your case if you are fiancees who have met only once or twice (or are a married couple living apart), you don’t speak each others’ languages fluently, you have different cultural backgrounds, you each have multiple prior marriages, and your ages are decades apart. Most cases are somewhere in the middle.

For the above listed documents, bring originals to your interview, along with copies. USCIS accepts copies, but reserves the right to request originals. In addition, all foreign language documents must be accompanied by a certified English translation, along with a translator’s certificate of competency, and be sworn by the translator before a Notary Public regarding the accuracy of the document. However, outside China many consuls accept documents in the language of the country in which the consulate is located.

U.S. citizen spouses are required to attend USCIS Adjustment interviews, but are not required to attend at consular posts, and may be discouraged from attending in some locations like Guangzhou.

Here are some potential signs of a fraudulent marriage that the USCIS’ Adjudicator’s Field Manual tells officers to look for. The more of them that apply to you, the better you need to document your case:

• Large disparity of age;
• Woman substantially older than man;
• Inability of petitioner and beneficiary to speak each other’s language;
• Spouses living apart for other than educational or professional reasons;
• Spouses have lived apart in separate countries for long periods of time without frequent visits by the U.S. citizen to the foreign national spouse abroad;
• 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;
• Marriage not recorded in personnel records for one or both spouses;
• No cohabitation since marriage;
• Beneficiary is a friend of the family; and
• Petitioner has filed previous petitions in behalf of aliens, especially prior alien spouses.

You should gather evidence covering the entire span of your relationship from when you first met until now. The legal requirement that you must meet is that at the time of the marriage you both had (or will have) an intent to establish a life together. To determine your intent at that moment, the government will review the evidence you gather from the periods before and after the wedding—for example, giving birth to a child a year after the wedding is indirect evidence that the bride and groom intended to have a real marriage.

The law puts the burden of proof on the applicant. This means your application won’t be granted unless you prove to the government’s satisfaction that you have a real marriage. This is different than a U.S. criminal case, where the defendant is presumed innocent unless the government proves otherwise.

This “top 10 list” is merely guidance. You are not required by law to do any of these things. In fact, so long as you meet the legal requirement that at the time of the marriage you both had (or will have) an intent to establish a life together, then the law doesn’t require that you live together, have a joint bank account, have sex together, be monogamous, etc. Those are matters of personal choice. Moreover, your relationship need not be perfect. Even if you’re currently split up and having relationship troubles, your relationship can still meet the legal standard (so long as there’s been no divorce or legal separation).

This article provides an overview of the subject but should not be relied upon as legal advice. For legal advice, consult with your immigration lawyer about how the law applies to the particular facts of your case.