Below is an article published today in the newsletter of AILA, American Immigration Lawyers Association. AILA is considered the preeminent trade association for U.S. immigration attorneys, and Chaudhary Law Office is of course a member. The article is written from the perspective of lawyer to lawyer, to help build best practices amongst the industry. So you are getting a real insiders view on how to prepare for your interview with U.S. immigration!
The Nuances of the Marriage Fraud Interview
By James W. Austin
Preparing your clients for a spouse
petition interview is a simple, routine
procedure. However, the more a couple’s marital
relationship deviates from the officer’s imaginary
norm, the more likely it will undergo additional
scrutiny. The chances that the couple will be subjected
to separate and intensive interviews increases if you
are an aggressive practitioner who tells clients to not
let the government decide how they structure their
marriage. Atypical relationships, uncommon marital
circumstances, and hard-headed clients can all lead to
the need to prepare for a long and detailed interview.
Several different names have been given to what
can be extensive and lengthy marriage interviews.
“Stokes interview,” “marriage fraud interview,” or just
plain “fraud interview” have all been used to describe
the appropriate government exercise of detecting
fraudulent marriages. As long as counsel is convinced
the marriage is not a sham, and the union meets the
requirements of a marriage under the immigration
laws, it is counsel’s job to defend your clients’ lifestyle
choices and assist them toward an approved petition.
When to Expect a Fraud Interview
Fraud interviews are usually initiated after the
government detects certain characteristics in the
parties or their relationship. There are two good
sources for finding the “red flags” that may trigger a
fraud interview—the U.S. Citizenship and Immigration
Services (USCIS) Fraud Referral Sheet3 and the day-today
experiences of yours and your fellow practitioners.
Although the purpose of the Fraud Referral Sheet
is to forward a case for further investigation, it lists
dozens of useful indicators of behavior or events
USCIS considers suspect. The factors cited on the
Fraud Referral Sheet include:
• Multiple applications/petitions by single applicant/
petitioner;
• Short time between entry and marriage;
• Unusual marriage history;
• Children born during marriage to other parent;
• Unusual or large age discrepancy between spouses
(when found in conjunction with other indicators);
• Unusual associations between family members;
• Unusual cultural differences;
• Low employment/financial status of petitioner;
and
• Previous marriage to foreign nationals.
USCIS officers are cautioned to not solely rely on just
one specific factor, especially if the suspect fact
is a large age difference between the petitioner and
beneficiary. However, local practitioners may not be
so circumspect in what they feel can trigger a hard
interview. Tap into the experience of your colleagues.
Local lore will often be specific to the quirks and focus
areas of specific examiners.
Screening your clients during the initial consultation
for the likelihood of a fraud interview is always
a good practice. Also, when setting your fees, fraud
interview cases almost always require more time and
follow-up work. Remember, however, that separate interviews
can occur even in the absence of the normal
indicators. Your perfectly clean couple may still be interviewed
separately as training for new officers or as
a way for an over-staffed field office to fill slack time.
Preparing Your Client—A Suggested Dialogue
While some attorneys only do a hard prep with
clients when fraud indicators are present, others
prepare every couple before their interview. The
reasoning behind this is simple: it is better to be
prepared than to have to clean up a mess later.
Just as there is no limit to the potential questions
USCIS can pose to your clients, there is also no limit
on the advice an attorney can dispense.
What follows is a basic outline of the advice counsel should impart
to a client before undergoing a fraud interview:
“You May Have a Hard Interview, and Here Is Why.”
Describe the practical handling of a fraud interview
and let them start getting comfortable with the
thought that they might be individually questioned.
Remind the parties that the interview may be videotaped
so that they are not intimidated by an unexpected
event. They should know that the videotape of
the interview is a positive factor because it also helps
ensure the professional behavior of the officer.
Be honest with your client about why you feel
USCIS may put them under close examination. Do not
be timid about discussing topics that are sometimes
considered socially incorrect. If your experience tells
you that mixed-race marriages usually receive extra
scrutiny (a recognition that USCIS officers might possibly
hold prejudices contrary to USCIS policy), then
convey that information to your clients. Do the same
with any other circumstances that may cause USCIS
concern, such as educational/economic class disparities
or unusual living arrangements. Telling a couple
that their 30-year age difference might raise government
suspicions is not telling them something they
have not already considered. Having the conversation
will give you a good indication of their commitment
and how they will respond to the examiner.
Should circumstances warrant, warn the petitioner
that threats of fines and jail time may be used in an
effort to have the petition withdrawn. Further advise
that if the marriage is real, they have nothing to fear.
Not only does this help you gauge the resolve of the
couple to continue with the process, but openly discussing
the possibility helps to reduce the intimidation
level of the government-issued threats.
“Is Everything on the Forms Accurate?”
USCIS can access a variety of information sources,
including several private computer data-mining
services. Through these outside sources, USCIS
can obtain public records, lease information, credit
applications, and requests made for public assistance.
It is not unusual for people to give inaccurate address,
wage data, or family information on credit or benefit
applications, especially if the couple is of limited
financial means. Question your clients on any past
use of other addresses on any application or record.
Is the petitioner currently receiving public benefits
or subsidized housing? Has he or she applied for
them in the past? If there is incorrect information
floating around in these records, then spot it now.
For example, if the addresses on the Form G-325A,
Biographic Information, are not exactly accurate,
then take an amended version to the interview and
be ready to explain any discrepancies between the
G-325A and other addresses located by USCIS.
“They Can Ask You About Anything, but Rarely
About Your Intimate Relations.”
Although some officers recite questions from a
script, there is no limit to the potential topics they
can explore. Memorizing vital facts is not adequate
preparation. You can demonstrate this with a short
Q&A session during your interview preparation
time. Ask a sample question, then develop follow-up
questions based on each new response. For example:
Q: When was the last time you and your wife ate
out with a non-family member?
A: Last Friday.
Q: Who was at the dinner?
A: Me, my wife, and a friend.
Q: What was the friend’s name?
A: Willie Beale.
Q: How did you meet Mr. Beale?
A: At my work.
Q: When did your wife first meet Mr. Beale?
A: At my work.
Q: When was that?
When asking the questions, do not allow the
other spouse to answer or even talk. No exceptions.
Demand an actual answer to each question. Be firm
in your demeanor and keep digging for one or two
minutes. This exercise will direct their attention to
what may be in store for them at the interview.
“Listen to the Question, Then Answer That Question.”
Do not allow clients to start an answer with some
rambling explanation leading up to a possible future
answer. If the question is closed-ended and calls for
a direct answer, then the answer is usually “yes”, “no”,
“I don’t know”, “I don’t remember”, “I think ...”, “I
don’t understand your question” or “I’m confused”
if the question is not simple and clear. Answer the
question. Then, give the explanation if one is needed.
“Tell the Truth Whether You Like the Truth or Not.
Do Not Give an Answer Just Because You Think It Is
What the Officer Wants to Hear.”
Even one lie can quickly lead to another in support
of the first lie. Once that happens, you have a very
big problem. Do not try to hide negative factors
in the relationship. There are reasons why people
have separations, no joint property, separate tax returns,
and have not told their family about the marriage.
Admit these bad indicators and be ready to give
an explanation.
“If You Do Not Know an Answer, then Say You Do
Not Know. If You Are Unsure or Guessing, Then Say
You Are Guessing.”
Nobody remembers everything, and part of what
is remembered will be incorrect. If your client is
unsure, have them say so. There is no limit to the
topics that can be explored. Let the officer move on
to other answers for comparison.
“Do Not Say a Document Exists When It Does Not.
Do Not Exaggerate Anything!”
There will be opportunities to submit additional
documents after the interview. There is no reason to be
flustered if the officer asks for something unavailable
at the interview. Also, do not misrepresent what
a document says. At the end of the interview, your
client may be asked to produce any document that
was discussed. The document should exactly match
any statement made during the interview.
“Do Not Accept an Officer’s Statement if Part of It Is
Not Correct.”
Sometimes, an officer will assume or misstate a fact
when asking a question. For example, if the officer
asks, “So, you fixed your wife’s breakfast Monday
before she went to work. Who did the dishes?” If the
answer is, “She did,” then he has also admitted to that
on Monday, he fixed breakfast for his wife and that
she worked. If any fact in the question is incorrect,
such as if she did not work Monday, then fix the error
before answering the question.
“Keep Relaxed and Focused.”
People are not accustomed to thinking and answering
questions for an extended period of time,
no matter how polite the questioner. We are simply
not accustomed to being interrogated. After 15 minutes of specific questions, fear
mounts and anxiety sets in. The interviewee wants
to leave the room and, consequently, gives thoughtless
and sloppy answers. Most avoidable inconsistencies
happen in the last portion of the interview.
Tell your clients that when they start getting tired
of the questioning, they should take a very deep
breath, sit up straight, stomp their heels on the
floor, and force themselves to concentrate on the
very next question and an honest answer.
“If You Know You Gave an Incorrect Answer, Go
Back at Any Time and Change It.”
Clients should know that if they lie, or make a mistake,
then they must fix it. The sooner the better, but
at any time it is appropriate to say, “Let’s go back to the
question about ...” At any time, they can say, “Stop a
minute,” and then talk about the question of concern
from 10 minutes earlier. Fixing the answer is more important
than whatever reason is given for needing to
make the correction. They can say they were confused,
thinking of some other event, momentarily brain dead
or lied. Whatever the reason, correct the answer.
“Get a Good Night’s Sleep. Come to the Interview
Rested.”
They usually will get little sleep the night before, but
it never hurts to give the advice anyway. Also, after a
hard interview preparation, it serves as a reminder
that you, as their attorney, really are concerned about
their welfare.
Attorney Role in a Fraud Interview
Just as clients must prepare for a long interview,
so must the attorney. Fraud interviews often exceed
an hour, so inform your office that you may be
unavailable for a longer than normal period of time.
Bring sufficient writing materials. If a break is taken
during the interview, such as when the spouses switch
places, consider that any discussion you might have
with the next interviewee may be viewed by USCIS
as an intentional hindrance of its attempt to verify
the parties’ relationship.
The attorney is a perpetual scribe during the interview
in anticipation that USCIS may later try to disallow
the petition. A Notice of Intent to Deny (NOID)
may soon be issued if sufficient inconsistencies result from the interview.
The attorney’s detailed interview
notes are irreplaceable when responding to the
NOID. Since most NOIDs consist only of negative
factors, it is not uncommon that for every inconsistency
noted by the officer in the NOID, the attorney
can respond with 10 examples of consistency. This
ability to show overwhelming positive results, along
with reasonable explanations for the inconsistencies,
forms the foundation of the response to the NOID.
In many cases, the USCIS officer will wish to
limit the attorney’s role in a fraud interview to that
of just an observer. While observation and notetaking
are vitally important tasks, this does not
negate the other useful services available when an
attorney is present.
Different attorneys hold widely divergent opinions
of what actions constitute proper representation
during a fraud interview. Obviously, a tactful
interruption to correct a misunderstanding or a
substantial misstatement by the officer can benefit
both the client and the examiner.
Dealing with inappropriate questions or behavior
of the officer will also, although hopefully infrequently,
fall within the range of actions an attorney
may take at a fraud interview. Intervention by an attorney
can include politely asking the officer if the
line of questions are appropriate, instructing the client
that he or she need not answer, and in serious
cases, stopping the interview and requesting to consult
a supervisor.
The attorney can submit a Freedom of Information
Act request for the videotape of the interview. Even
the act of verbally requesting the officer to preserve
the video can alter the tenor of an interview. If a
timely FOIA request later shows that the video was
deleted, the erasure of what you consider exculpatory
evidence adds substance to later litigation.
James W. Austin is a partner with Austin & Ferguson,
LLC, a firm exclusively practicing immigration and
nationality law. The author’s views do not necessarily
represent the views of AILA nor do they serve as legal
advice or representation.
1. Stokes v. INS, No. 74 Civ. 1022 (S.D.N.Y. 1976). Additional note omitted.
2. Adjudicator’s Field Manual (AFM) ch.15.4(a)).
3. USCIS Internal Form, “Fraud Referral Sheet,” AILA InfoNet at Doc. No.
10012861.
On September 11, 2011 there was an interesting article in the Des Moines Register the rise of fraudulent and unethical legal advice. This information really highlights why it is important to know and trust your immigration attorney and long term consequences for you and your family, if they are not providing sound representation. Check out excerpts below:
tates. Although some Permanent Resident Cards, commonly known as “Green Cards,” contain no expiration date, most are valid for 10 years. If you have been granted conditional permanent resident status, the card is valid for 2 years. It is important to keep your card up-to-date. Without a valid card, it may be difficult for you to prove that you are a permanent resident, and this could also affect your ability to travel or to prove your eligibility to work in the United States. 
Congratulations! You're getting married, and want to bring your future spouse to the United States. Well then you need them first to obtain a K1 visa. A K1 visa allows a fiancé(e) of a U.S. citizen to enter the United States as a non-immigrant, get married shortly after his or her arrival, and adjust status to that of a permanent resident after marriage.
categories established by the May Visa Bulletin are summarized here: 
