A few years ago, an internal USCIS fraud referral sheet was leaked online that provides incredibly useful insight into the adjudicatory process and just what types of factors officers are looking at. While the document appears to have been last updated in 2004, it references fraud “indicators” that are timelessly problematic. While the presence of one or more of these factors does not conclusively establish fraud, they are triggers that will likely expose a couple to heightened scrutiny, which can potentially evolve into a “Stokes Interview,” site visit, investigation and possible prosecution. A married couple anticipating filing a case should be alert as to whether any of the following red flags applies to their situation. For I-130 family based petitions, the sheet references the following:
· Short time between entry and marriage
· Unusual marriage history
· Children born during marriage to other parent
· Unusual number of children and large discrepancy in age
· Unusual dates on submitted documents
· Divorce/new marriage dates close
· Unusual or large age discrepancy between spouses (when found in conjunction with other indicators)
· Unusual associations between family members
· Unusual cultural differences
· Low employment/financial status of petitioner
· Preparer, notary and minister are the same person
· Same employer of petitioner/beneficiary
· Previous marriages to foreign nationals
Officers are instructed to articulate reasons for referral (presumably to FDNS, or Fraud Detection and National Security Directorate) based on fraud indicators checked. In other words, cases should not be referred for further investigation or action in the absence of an articulable suspicion that a relationship is not what it purports to be. “Hunches” would not be enough. Furthermore, this sheet should not be interpreted as being an all-inclusive list. Officers are trained to be alert as to other issues as well that are not necessarily found on the sheet that may arise during the course of an interview.
The problem with this “fraud sheet,” unfortunately, is the potential for misinterpretation by those who are not properly trained or in some cases, not sensible enough to apply a contextual analysis. If these factors are viewed through a very narrow prism with little to no discretion by an officer, perfectly legitimate cases that on the surface may seem a little unusual (but are nevertheless genuine) may be held up and possibly denied. This only underscores the importance of approaching one’s case with a healthy dose of realism, especially in today’s climate. It is naïve to expect the government to blindly rubberstamp a case just because the parties themselves know the relationship to be true. In order for a case to be approved, the burden falls on the parties to demonstrate that the claimed relationship is true. For unconventional or complicated relationships that may have arisen out of unusual circumstances, it is important to acknowledge how things may appear to a third party and consult with an experienced attorney to assess what additional evidence may be adduced to successfully prove the bona fide nature of the relationship.
For more information on some other factors an immigration officer may be sensitive to or looking for during a family-based immigration interview, please contact our office. You may be surprised by what you hear. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.