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 previouslyhad 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:
- During the interview the beneficiary had a very thick accent and hence the interviewer was not convinced that the petitioner or the beneficiary could communicate and establish a bona fide relationship24;
- The G-325A, Biographic Information,listed the date the petitioner and beneficiary had moved in together but during the interview both testified that they had moved in together a month later;
- The service held that a jointly owned vehicle by petitioner and beneficiary purchased several years ago was for the “purpose” of only showing a fraudulent joint purchase and only used by petitioner. The implication was that this joint purchase could not be truly viewed as an indication that petitioner and beneficiary were in a bona fide relationship and were purchasing the vehicle together;
- The service contended that one of the tax year filings did not have the joint address of the petitioner and beneficiary and that the tax returns provided were copies and hence not credible;
- The service asserted that certain credit cards for the petitioner showed purchases were made in another city outside of where the petitioner and beneficiary were purportedly living hence questioning whether the petitioner and beneficiary lived together;
- The service also stated that the lease provided by petitioner was not “official”in nature and concluded it did not hold any value for immigration purposes;
- The service concluded that the photos provided by the petitioner and beneficiary were not credible because it seemed that the beneficiary was just“posing” to show they were married.
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.