Consular Scrutiny on Spouse and Fiancé(e) Petitions
By Reuben Seguritan
July 5, 2017
Marriage is a big change in one’s life. A lot of preparation goes into planning the wedding and how the couple will start their life together. The process will be longer and often times more complicated if the United States citizen will marry a foreigner who is not in the United States. If the United States citizen has already married the foreign spouse outside the United States, bringing the spouse to the United States is also complicated. Both situations could encounter the same problems when their petitions are being processed by the United States Consular office in the foreign country.
In order for the United States citizen to bring his/ her fiancé(e) to the United States, the United States citizen must file the I-129F petition with the USCIS along with evidence of the relationship, including evidence that the two have met in person within the last two years. Both must also be free to marry and have a bona fide or good faith intention to marry. If the petition is approved, the foreign fiancé(e) will apply for the K-1 visa at the United States consulate or embassy abroad.
If the United States citizen and the foreign fiancé(e) already married abroad, the United States citizen must file the I-130 petition with the USCIS along with evidence of the marriage in order for the foreign spouse to obtain a green card and move to the United States.
The first challenge for the couple at the Consular level is a review of the relationship on the ground of fraud. The Consulate might deny the petition if it finds that the marriage is a sham and it was only entered into to bring the foreigner to the United States. The following grounds may trigger a fraud review: 1. Age difference between the United States citizen and the foreigner; 2. Foreigner is from a country where marriage fraud and marriage arrangements for money are common; 3. Marriage occurred shortly before the filing; 4. Marriage was triggered by another event (business or job opportunity in the United States, etc.); 5. Previously married in high-fraud place or in a country where bigamy is culturally accepted; 6. Either party has sponsored, or has been sponsored for a marriage-based case before and abandoned the case or did not explain why the previous case was withdrawn or denied; 7. The couple does not speak the same language; 8. Missing proof of daily contact between the couple.
The second challenge for the couple is the lack of transparency at the Consulate. The Consulate is not required to directly speak with the foreign spouse or fiancé(e) and explain why the petition was denied or why the fraud review was triggered. The Consulate will give a brief response only. This lack of transparency is linked to the fact that there is no system of external oversight for visa issuance decisions. It is possible for the consular office to be bias and apply inconsistent standards to the visa applications.
However, after a denial of the petition, the United States citizen has the right to reconsideration. That is, he has the right to know the legal basis for the decision and be given an explanation in writing. The United States citizen may also request for an advisory opinion from the Visa Office Advisory Opinions Division after the decision.
The third problem for the couple is the fact that consular decisions cannot be reviewed by the courts. The couple cannot file a suit against the consular office because the petition was denied. The United States government has the right to decide who may or may not enter its country. Furthermore, the right of due process does not apply to foreigners residing abroad, even if they are married to United States citizens.
In conclusion, it would be best for the couple to consult an attorney before submitting any petitions and evidence to the USCIS. The best course of action would be to file everything correctly and completely from the start.