In the ultimate immigrants' gateway city of New York – and around the U.S. – this has brought heartache to some legitimate would-be spouses who endure lengthy approval processes that test their relationships as much as their patience. As the number of immigrants seeking legal residency in the United States through marriage has risen by a dramatic 49 percent, from 183,796 in 2003 to 274,358 in 2007, denials of "adjustment of status" applications also have increased markedly, along with arrests and prosecutions in the categories covering marriage fraud.
Immigration officials maintain the stricter scrutiny is needed to preserve national security and the integrity of immigration controls. “If we look in the other direction and don’t at least get the case denied…marriage fraud could very seriously undermine the entire immigration process,” said Charles Akalski, a supervisor in the New York City office of the U.S. Citizenship and Immigration Services.
But to some activists, immigrants and their lawyers, the crackdown is tantamount to an unjust restriction on the affairs of the heart. "It's almost like immigrants aren't allowed to fall in love and marry," says Rev. Donna Schaper, minister of Judson Memorial Church in Greenwich Village. Schaper is active in the New Sanctuary Movement, an interdenominational religious network supporting immigrants' human rights without regard to legal status. A pastor for more than 30 years, counseling numerous foreign nationals in New York City, she says, "If an undocumented person falls in love with a documented person and wants to get married, what they go through is a kind of hell."
Petitioning for Uncle Sam's blessing
Put yourself in an applicant’s shoes – you have just married a foreigner you fell in love with while traveling; a work colleague from another country; or you are normalizing a marriage conducted beyond America's borders. After procuring a marriage certificate from the City Clerk’s office, you file forms with the U.S. Citizenship and Immigration Services (USCIS) establishing your relationship and requesting an adjustment of status for your spouse.
The next step in the process is an interview with an adjudications officer at USCIS’ Foley Square offices in Manhattan for a firsthand evaluation of your relationship.
“We’re trying to determine if a reasonable person would believe this couple is married,” said USCIS spokesman Shawn Saucier. “This is New York – we’re not looking for an Ozzie and Harriet marriage.”
But they are looking for "marriages of convenience" – like a student who married a classmate whose visa is about to expire; a gay person getting hitched to a straight friend without proper immigration papers; or an immigrant who's paid a broker to arrange a marriage with an American. These practices continue, because compared to other paths to obtaining permanent residency or citizenship, marriage can be quick, cheap, and simple. Employment and family-sponsored applications can take between six months to several years to process and are subject to annual quota restrictions set by Congress. By contrast, marital applicants are immediately eligible for immigration benefits and not limited by quotas.
To support your partner's application – for legal permanent resident status, or citizenship if he or she already has that – it is wise to bring shared documentation such as joint bank accounts, leases, utilities bills and health insurance forms. Missing documents are often a red flag for adjudicators and are common grounds for denial. In a closed interview room, the adjudicator will question you and your spouse about particulars of the relationship, such as details of your first date, the appearance of your bedroom, or specifics about photos you have brought as evidence. Friends, family and children may also give statements in support of your relationship.
Simultaneously, USCIS will conduct a background check by checking your names with the FBI’s criminal database, the government’s terrorist watch list (which, containing more than 1 million names, is criticized for being overbroad), and the Interagency Border Inspection System. FBI checks are supposed to take a maximum of 180 days – however, cases frequently drag on for years because of security checks.
If an adjudicator’s suspicions are aroused during the interview or a background check, your case will be referred to the Stokes Unit, a second-line interview unit established by a 1976 court order unique to New York City. A different adjudicator will question you and your spouse separately, and inquire about any inconsistencies in your statements or documents.
While adjudicators give applicants the benefit of the doubt, they're also alert to indicators of fake marriages. Staged photos are a common clue, according to Stokes Unit Adjudicator Bryant Chisholm. “You’ll sometimes see photos of a couple lying in bed on their wedding night,” Chisholm said. “What normal couple would allow someone to come into their room and photograph husband and wife in bed?”
Cultural barriers between spouses are another possible giveaway. During some interviews, Chisholm recounted, adjudicators bring in interpreters because the couple does not share a common language. However, he says such situations are not grounds for a denial: “We try to be fair, because you can be on the train and meet somebody and fall in love with them.”
If the Stokes adjudicator is still doubtful after the interview, the adjustment of status application will be denied along with a written explanation. Even if the relationship is established as bona fide and the application approved, a stipulation in the 1986 Marriage Fraud Amendments means green cards are conditional for all applicants for two years and can be revoked at any time by immigration authorities.
Should the officer believe your relationship was entered into for profit or immigration benefits, it may be referred to Immigration and Customs Enforcement (ICE) for investigation.
Denial rates are high. Of the applicants who show up to their interview – USCIS says there is a 20 percent no-show rate to begin with – almost one-third of cases in New York are denied for sham marriages.