2020 AILA Conference: Day 1, Session 3: Marriage-based I-130 Application Issues

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Hi, welcome to Tsang & Associates. It’s an exciting week—it’s AILA’s 2020 virtual conference. I’m going to do a review for each session, well, not every session, but the sessions that I’m attending, and we’re going to be sharing it with you.

Now, if you’re not familiar with AILA, it’s the American Immigration Lawyers Association. It’s the largest immigration lawyer association in the United States, probably in the world. Each year, thousands of attorneys around the world will be gathering to discuss the pressing immigration issues of the day, discussing strategies and tips. AILA will be inviting the top immigration lawyers on these subject matters to present their findings.

Now, before we get started, a quick disclaimer: the opinions expressed in this video are solely mine. Even though I am an AILA member, my opinions do not represent the opinions of the AILA organization, nor even the opinions of the speakers themselves. You can download the original video and presentation from AILA University, so you can fact-check everything I’m saying.

My goal is to present a short-condensed summary of the presentations that I witnessed and also express some of my own opinions. If you like this kind of video, please subscribe, follow, and you can also look to AILA University. They provide awesome content.

[1:12] Day one, Session three: Marriage-based Issues. Actually, it’s marriage-based I-130 issues, not marriage-based issues. If your marriage-based issues are like you didn’t pick up your socks and you didn’t do your dishes, but marriage-based I-130 issues, you got married to a U.S. citizen, but now you have to face the love police and you don’t have a particularly strong application. You might have a strong marriage, you might have a strong love story, but you don’t have a strong application. And so now you have to face USCIS, and there’s a high chance that you’re going to be denied. And what are you going to do?

A lot of people fit under this scenario. They just recently got married. They’re a young couple, but they [don’t] have a strong application. There are a lot of red flags, and the love police (USCIS) is going to come down on their application, and there’s a high chance of denial.

In this session, AILA University has invited the top immigration attorneys to give advice on how to deal with these complicated problems. So, a huge shout-out to the moderator, Scott Emerick, who is the AILA Southern California chair. Woohoo! I’m part of AILA Southern California. It’s always so fun seeing Scott and seeing the team that he assembles.

Now, here are the top immigration attorneys(Scott Emerick, Laura Ferner, Rina Gandhi, Gregory Pietzak), and they’re going to present you with pro tips on how to prepare an awesome marriage-based application.

[2:19] The first thing is you want to decide how much documentation you really want to prepare. Do you have any red flags? If you have one or two red flags, you better go all out. But if you don’t, you may still want to go above and beyond just to have the peace of mind.

So, what are some of the red flags? The speakers go through the top red flags for marriage-based [I-130] applications:

1. Language. If you cannot even communicate in broken English or share the same language, then how are you truly in love? Is it purely by sight? Well, then that’s not love. You can say, “Well, who are you to judge?” Well, they are the love police. USCIS is the love police. If they determine that you don’t conform to their definition of love, then they can deny your application. Sharing communication is a fundamental principle of a valid marriage.
2. Age difference. Now, this is really interesting. If a man is 20 or 30 years older than a woman, that goes into question if the marriage is based on true love. If the woman is merely seven or ten years older than the man, well, that can also be questioned. And I know it’s not fair, I know it’s completely not fair, but these are the indicators to USCIS, the love police, if this relationship is really real.
3. Religious difference. If the applicant was previously a nun, a religious worker, and then the other person is a devout Muslim, a devout Buddhist, and there’s a clear religious difference, then that really calls into question if they really share the same fundamental values and if they’re truly in love. Again, it’s your burden to prove that you are.
4. Same-sex marriages. Always a red flag. You always want to call into question because it might be too easy just to say, “Hey, I’m marrying my best friend and I could get a green card out of it.”
5. Prior marriages. If one of the parties had multiple, maybe even three, four, or five prior marriages, that also calls into question if your love is genuine.
6. The number of people the US citizen or the green card holder have previously petitioned using this marriage-based system.
7. If you’re not living together, well, then that really calls into question if your marriage is real, isn’t it?

[4:16] So, those were the seven that they mentioned. I want to add a few more that I personally know from talking to the officers and attending clients to the interviews.

• If the US citizen or green card holder has a prior bankruptcy or a current bankruptcy, they also look into that a little bit more because then that kind of shows that they are susceptible to bribes, right? They’re vulnerable. They’re at a place where they really need money, but hey, getting married to somebody, they’ll get ten thousand, twenty thousand, fifty thousand. Why not? And so, it puts them at a very vulnerable position to be bribed.
• Another one: You might not file bankruptcy, but if the class difference is just far, far too different, that also calls into question whether your marriage is real. If one party is from a very, very rich ruling class, let’s say the upper class in India, super high caste, and then they’re marrying somebody who’s super, super low, completely worlds apart, and generally in that culture, they don’t mingle, then that really calls into question their love.
• Another one is  . I know it’s super superficial, but it’s reality, right? If a couple doesn’t look like they are compatible, a super hot-looking model with somebody who just doesn’t look compatible to her or him, vice versa, well, that might call into question whether or not the love is genuine.

[5:32] Alright, hypothetically speaking, if you fall into one of these camps and have one of the red flags, how do you go above and beyond to prove your case is real? How do you prove to the officer that your marriage is bona fide, that you deserve this green card, and that your love is genuine?

Pro tip number one: Keeping the love alive at the time of marriage. So, the presenters are reminding us that at the time of the marriage, what is the intent of the marriage? A lot of these red flags fall into a problem because they don’t have all the documentation, they’re not living together, or things have might have… there’s some disputes, and they’ve fallen apart. There’s some reason why they’re now sitting before an attorney, arguing their case. So, you really want to show that at the time of their marriage, before you got married, right after you got married, and what soon happened right after their marriage shows that your marriage is real. If you can gather those documentation and emphasize that at that time, that marriage is real, then you are still okay. If you don’t have a joint bank account and everything is paid separately, explain every single transaction and how do you guys organize your marital expenses. If you’re living apart, talk about what the arrangement was, how it changed, and what it is currently. And maybe explain about your love language. Maybe the two of you just don’t love in the sense of needing to spend physical time together. Maybe words of affirmation, maybe giving gifts, maybe spending quality time with each other when you’re together is more important, but you don’t need a lot of time. Explain those things away. Or maybe you’re living apart separately right now because you just had a major argument, and you need a couple of months to kind of cool things off, but your marriage is still real at the time of getting married, and you guys are working through it. Maybe you’re having a mediator, maybe you’re seeking counseling, maybe you’re working certain things out, and that’s okay. Marriage is like that. No marriage is absolutely perfect. You just need an application, you just need an explanation for everything that you’re going through, so be super prepared and argue everything. aspect of your case.

[7:28] This reminds me of this crazy motion to reopen case that I did last year. Chinese guy married Hispanic lady. They were together for less than a year, they separated, and they had no documentation together. He was a truck driver, so he’s never in the same place with her, and he traveled all over the country. Um, he got his initial green card, but during the 751 waiver part, trying to prove that his marriage is still real to get his 10-year green card, his case got denied. We filed a motion to reopen, got denied again. We filed a second motion to reopen, and then it finally got approved. And there was just so much argumentation that needed to be made, all these different witnesses needed to be called. They had a cultural difference, they had a language difference, they had a um age difference. They weren’t living in the same place. There were like five or six red flags all in one place, and you just really need to go in and argue every single thing. He even appeared to interview twice, and the officer denied him. And he was just like, “Oh, there’s all these contradictory things in the interviews.” But we explained that he’s not very fluent. He’s a truck driver. He’s not articulate. You ask him a question, he responds one way, but really what he means is something else. And it’s just, it was a mess.

But the end result is he got his green card after two motions to reopen. And the point is, if you really argue everything out, you still have a chance in winning.

[8:42] Pro tip number three: Marriage-based applications in deportation proceedings or having a prior deportation proceeding. Now, a lot of people have prior deportation proceedings or they’re currently in immigration courts, and then they suddenly get married to a U.S. citizen. Typically, in deportation or having prior deportation orders, you must leave the country, wait two years, file for a waiver, and then you’re able to come back.

But if you’re in the proceeding now and you marry a U.S. citizen, you can argue for a bona fide marriage and then you can get that two-year requirement waived and directly get your green card in the U.S., but you need to really prove your marriage is real. It’s an extra burden of proof because it seems so convenient – you’re about to be deported and suddenly you get married to the nearest U.S. citizen you find from the supermarket, right? So, you really need to prove that your marriage is real.

And I guess this is one of those red flags that I didn’t mention earlier, but if you can go above and beyond, really document how you know the guy, how you know the girl, why your marriage is real, all the things you share, all the love you share, all the hobbies you share, all the common interests you share, and build a life together, then you can win this case.

[9:48] Pro tip number four: When the client has a prior I-130 denial. So maybe the client has already tried to get married one time with a U.S. citizen, filed it, and the case got denied because the officer didn’t believe that the marriage was real. Now, they got married to somebody else and they’re filing a second I-130 petition. We see this all the time, and a lot, most of the time, the clients will think, “Hey, it didn’t work out the first time. Maybe I’ll try again and I got married to this new person. Maybe this will work.”

Well, it’s not so easy. Not only do you need to prove that this marriage is real, you need to prove that the previous marriage was real also, but it didn’t work, right? So, if the officer denied the prior one because there was fraud, well, now you are in trouble and you really need to prove a waiver claim as well. 

But if they didn’t deny based on fraud, then you just need to prove that that marriage is real and that this marriage is real. And you need to do double time, but it’s doable. You just need really good arguments and you really need good documentation. So, you need a really good strategy session and you really need a team of people to come in and really help and discuss and think through how to present your case.

[10:51] And the speakers emphasize, don’t be discouraged. Really, don’t be discouraged. I know it’s crazy. You filed it once, it got denied. You’re filing again. Who’s to say that your chance of getting successful the second time? But all the speakers and my own experience is a lot of times the first application just wasn’t prepared right. It didn’t have everything you need. And so, don’t be discouraged just because you’ve done it doesn’t mean you will fail if you do it again.

Think about it like cooking, right? The first time you made spam and eggs or the first time you made fried rice, it probably was soggy, burned, and all sorts of nasty. But you do it again and again, and you will get better. It’s the same with applications. 

How do you prove your marriage is real? Well, if you’re doing it for the first time by yourself or if you’re just merely putting a couple ingredients together and filing it, chances are there’s a better way to do it. It’s an art, it’s not a science. There are ways to go about it. Maybe the first time you filed it, your best friend wasn’t in town, so your best friend didn’t include their affidavit talking about why your marriage is real. Well, that’s a key piece of evidence isn’t it? Don’t you want to include that?

[11:52] And as a bonus on top, I’m going to provide you my little tidbit that I can tell my clients, depending on their situation, compare them to your ex. Right? If the husband and wife are comparing the other person to their ex, suddenly you have four sets of data to examine. “My girlfriend or my wife is super detailed, but my ex is super messy, and I love that about her.” And then you talk about all these examples of why she’s detailed and how the ex is super messy. That really puts it into a perspective, a more understandable way. Like, “Oh yeah, this makes sense. Oh yeah, there are all these data points. Now, okay, I see you as a person. He really is considerate. My ex is super inconsiderate. He’s completely self-centered and doesn’t aware. He kicks people, he always bumps into people and never says sorry, he takes things from the shelf and doesn’t put them back. But he is always considerate. My husband is always considerate about me and everybody around me, and I love that about him.” Right? Do a lot of comparisons. I know in marriage counseling they probably tell you not to do that, but for the sake of a marriage interview, do a lot of that.

[12:51] Alright, that’s it. Now, what do you think about the love police? Let us know in the comment below. I think it’s a pretty fun job. A lot of my friends are actually USCIS officers, and it’s pretty interesting. You go through documents all day and determine if this marriage is real, if it’s not real. I like to call them the love police. Other people don’t call them the love police, so that’s not an official term.

[13:11] If you’ve never been to AILA’s national conference before, after each session, typically all the attorneys will get together and ask the speaker questions. They will ask each other questions. They’ll discuss the issue at hand. It’s a super fun time networking event before the next session starts.

Now, since we’re not at the conference, but I’m treating it as if I’m at the conference for the next four days, if you have any ideas or suggestions, please leave a comment below or email us or call us. Just let us know your thoughts, and we’ll be happy to engage with you.

Again, a huge shout out to AILA University for putting together this conference on such short notice, especially given the pandemic, as well as all the speakers that carved out their time, prepared this presentation to help educate the rest of the AILA community on these important topics. I know I personally gained a lot from it, and I go every single year.

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Have a great rest of the conference. Take care. Bye-bye