Green Card Through Marriage: The Burden of Proof

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Marriage to a U.S. citizen is one of the fastest ways to obtain legal permanent residence or “Green Card” and generally allows for the rapid issue of employment authorization.

In some cases, marriage to a U.S. citizen is also considered a strong defense to deportation and removal proceedings.

However, under the Alien Fraud Marriage Act of 1986, the immigration service (USCIS) must be satisfied that the marriage is a real and genuine Union. The applicants must prove that they married in order to establish a life together; that the primary purpose of the marriage was not to secure immigration benefits.

The USCIS always takes the position, that marriages are initially presumed to be fraudulent and that the applicants had ONLY married to receive the immigration benefit.

Accordingly, the burden of proof to establish the bona fides of the marriage falls upon the applicant. Never at any point does USCIS have a responsibility to investigate any aspect of the application, in order to determine if the marriage is real and genuine.

The burden of proof is established through a series of questions posed at an interview, in addition to the presentation of documentary evidence. The couple may be interviewed together or separated, and questions posed to them, individually

If the applicant does not satisfy this burden of proof, then the application is denied. It is therefore, extremely important that applicant is as prepared as possible.

An experienced attorney can assist in this task, both preparing the application correctly and also advising the applicant, as to what kind of documents should be brought to the interview, to increase the likelihood of success.

In instances where the marriage is(less than two years old, the individual is granted a two-year conditional residency. Prior to the end of this two-year period, an application is made to remove the condition.

Three years after the applicant is granted permanent residence status or "Green Card", the individual may apply for U.S. citizenship.

From the author: Philip Teplen is a New York Immigration Lawyer
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