Case Facts: Foreign National (FN) and his US Citizen(USC) spouse, who filed their one-step adjustment several years prior, came in to see me for a consultation. They received a NOID for the I-130 and wanted new counsel to represent them in the matter.
They previously had two interviews for the I-485. The NOID for the I-130 was based on the assertion that the petitioner and beneficiary had not established they had a valid marriage and/or resided together. The United States Citizenship and Immigration Services (USCIS) Adjudicator made the case for the NOID using some of the following arguments:
As I reviewed the NOID and interviewed the couple, it became clear to me that the interviewer in this case was reaching conclusions without any basis in fact or even case law.
In brief summary, here is how we countered the NOID arguments laid out by the service:
We argued that having an accent should not or could not be used as a guide to ascertaining the bona fide nature of the marriage. There was no case law that mandated it and the service’s conclusion was baseless. For example, one of the hallmark cases which speaks to the issue of a bona fide marriage, BARK v. IMMIGRATION NATURALIZATION SERVICE. United States Court of Appeals, Ninth Circuit. 511 F.2d 1200 (9th Cir. 1975), discusses how the intent of the parties is key to establishing bona fide marriage. There is no mention of accents of speaking English fluently. In this case, the beneficiary did have a thick accent but in fact was educated in English and could fluently read and write English. We also provided affidavits from the petitioner, the beneficiary, and their friends who corroborated the beneficiary’s ability to communicate in English.