Common Challenges During Adjustment Of Status Based On Marriage Process
14 February 2025By Alena Shautsova, New York Immigration Lawyer
Adjustment of Status (AOS) based on marriage to a U.S. citizen or lawful permanent resident is one of the most common ways immigrants obtain a green card in the United States. While the process may seem straightforward, many applicants face unexpected challenges that can delay or jeopardize their case. As an experienced immigration lawyer, I have helped numerous couples successfully navigate this process. In this article, I will discuss the most common challenges and provide practical advice on how to overcome them.
Proving a Bona Fide Marriage
One of the most significant hurdles in an Adjustment of Status application is proving that the marriage is genuine. The U.S. Citizenship and Immigration Services (USCIS) is highly vigilant in detecting fraudulent marriages and will scrutinize the couple’s relationship to ensure it is legitimate.
Common Issues:
- Lack of joint documents (e.g., bank statements, lease agreements, tax returns)
- Inconsistent answers during the interview
- Short courtship before marriage
- Different living arrangements
- Children born during the marriage from different partners (not spouses)
How to Overcome This Challenge:
- Gather and submit strong evidence such as joint bank accounts, utility bills, lease or mortgage documents, insurance policies, and photographs.
- Be prepared for the USCIS interview by reviewing personal details with your spouse.
- Consider preparing a detailed timeline of your relationship.
- If you live separately due to work or financial reasons, provide explanations with supporting evidence. While separate living is not per se a bar to the approval, often USCIS officers will find that separate living coupled with lack of commingling of the financials to be a strong sign of lack of bona fide marriage.
The Board of Immigration Appeals (BIA) has addressed the issue of cohabitation in the context of determining the bona fides of a marriage. In Matter of McKee, 17 I&N Dec. 332 (BIA 1980), the BIA held that a visa petition should not be denied solely because the spouses are not living together and the marriage is no longer viable. The key factor is the intent of the parties at the time of the marriage—specifically, whether they intended to establish a life together. The BIA emphasized that conduct after the marriage is relevant only to the extent that it sheds light on the parties' intent when they entered into the marriage. Similarly, in Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), the BIA found that the fact that the parties slept in separate rooms and had not engaged in sexual relations was insignificant, given the evidence showing that they intended a valid and lasting marital relationship. The BIA concluded that the reasons for the marriage appeared to be sound and that there was no evidence suggesting it was a sham.
These cases illustrate that cohabitation is not an absolute requirement for establishing a bona fide marriage in immigration proceedings. The central question remains whether the couple intended to establish a life together at the time of their marriage. Keep in mind, that even if I 130 is approved by USCIS, but your case is in court, an Immigration judge may again revisit the issue of bona fide marriage! Matter of Kagumbas, 28 I&N Dec. 400 (BIA 2021): The BIA held that immigration judges have the authority to assess the bona fides of a marriage when adjudicating adjustment of status applications, even if an I-130 petition has been approved by USCIS. This case highlights the necessity for applicants to provide convincing evidence of a genuine marital relationship during proceedings.
Public Charge Rule and Financial Requirements
USCIS requires that the U.S. citizen or green card holder spouse demonstrate the ability to financially support the immigrant spouse. If the sponsoring spouse does not meet the income requirement, the application may be denied.
Common Issues:
- The sponsoring spouse does not meet the minimum income requirement (125% of the Federal Poverty Guidelines).
- Missing or outdated financial documents.
- Sponsor is unemployed or has an irregular income.
- Sponsor received 1099 income or is self-employed.
How to Overcome This Challenge:
- If the petitioner’s income is insufficient, find a joint sponsor who meets the income requirements.
- Submit recent tax returns, W-2s, pay stubs, and an employment verification letter.
- If self-employed, include business tax returns and bank statements.
- Include evidence of assets (e.g., savings, investments, or property) to meet the financial requirement.
Prior Immigration Violations
If the foreign spouse has violated immigration laws in the past or has a criminal history, they may face additional scrutiny during the Adjustment of Status process.
Common Issues:
- Entry without inspection.
- Previous marriages in the USA that resulted in denials, withdrawals, or failure to remove conditions.
- Previous removal orders or deportation proceedings.
- Criminal convictions or arrests.
- Accusations of immigration fraud/misrepresentation.
- Claim of U.S. citizenship.
How to Overcome This Challenge:
Often, self-filers do not realize that they are subject to inadmissibility grounds and fail to address it in their filings. Often, an immigration inadmissibility waiver may be available. As a rule of thumb, if you are aware of inadmissibility, you should address it as soon as possible, preferably by submitting the waiver application together with your adjustment package. At times, however, a waiver is not available, and an unsuspected filer will submit his or her application for adjustment of status, just to later find themselves in a forever-inadmissible situation and removal proceedings.
Delays in Processing and USCIS Backlogs
Adjustment of Status applications can take several months to years, depending on the backlog at USCIS and the complexity of the case.
Common Issues:
- Long wait times for biometrics and interview appointments.
- Delays in receiving work and travel permits.
- Requests for Evidence (RFE) causing further delays.
How to Overcome This Challenge:
- Track your case status online and stay updated on USCIS processing times.
- Submit a complete and well-prepared application to avoid RFEs.
- Expedite your work permit (EAD) if you have financial hardship.
- If your case is unreasonably delayed, consider contacting your local congressional representative or filing a writ of mandamus lawsuit.
Marriage-Based Green Card Interview Anxiety
Many couples find the USCIS interview process stressful, especially if they are worried about forgetting details or being separated for a fraud interview.
Common Issues:
- Nervousness leading to inconsistent answers.
- Lack of preparation.
- Inexperience with government interviews.
How to Overcome This Challenge:
- Practice answering common interview questions together.
- Stay calm and honest—if you do not know an answer, say so rather than guessing.
- Bring an immigration attorney to the interview for additional support.
- Review your submitted documents to ensure consistency with your answers.
Conditional Green Card and Future Removal of Conditions
If you have been married for less than two years at the time of receiving your green card, you will be issued a conditional green card valid for two years. You must file Form I-751, Petition to Remove Conditions on Residence, to obtain a permanent green card.
Common Issues:
- Divorce before filing I-751, or during its pendency.
- Insufficient evidence of a continued bona fide marriage.
- Late filing of I-751.
How to Overcome This Challenge:
- If you divorce, file I-751 with a waiver, providing evidence that the marriage was entered into in good faith.
- Continue collecting evidence of your married life even after getting the green card.
- File the I-751 petition on time to avoid loss of status.
A long-term delay in adjudication of I-751 can be effectively addressed with N-400 filing. In this case, however, you will have to prepare to defend I-751 at the time of the N-400 interview. N-400, or application for naturalization (citizenship), cannot be approved prior to I-751 being decided.
Red Flags for USCIS During the Green Card Based on Marriage Process
Each immigration case is reviewed based on its unique circumstances, but judicial precedents and USCIS policies help define the criteria used to assess the legitimacy of a marriage. Below is a breakdown of how immigration authorities evaluate evidence of a bona fide marriage.
Courts have consistently ruled that the primary question in assessing a marriage’s authenticity is whether the spouses genuinely intended to establish a life together at the time of marriage. If this intent is present, the marriage is not automatically fraudulent, even if other factors—such as immigration benefits—were considered. Courts have clarified that the mere existence of an additional incentive (such as obtaining lawful status) does not make a marriage fraudulent if the couple truly intended to build a life together.
When evaluating whether a marriage is genuine, immigration officers and courts rely on objective evidence, rather than subjective opinions about what constitutes an ideal marriage. Courts have acknowledged that a marriage can be valid even if:
- The couple does not live together.
- The marriage is not consummated.
- The couple has different cultural, religious, or personal expectations about their relationship.
For example, in Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), the Board of Immigration Appeals (BIA) ruled that a marriage was legitimate even though the couple did not engage in intimate relations. Similarly, Matter of McKee, 17 I&N Dec. 332 (BIA 1980), established that cohabitation is not a requirement for a bona fide marriage.
Inconsistencies and Their Impact
One of the most critical factors in marriage-based immigration cases is consistency in statements and evidence. Courts have found that inconsistent or contradictory responses given during the fact-finding process can be used as a basis to determine that a marriage was fraudulent. Couples undergoing USCIS interviews should ensure that all details provided in their application align with their testimony.
Indicators of Fraudulent Marriages According to USCIS
USCIS officers assess marriages for potential fraud based on certain red flags, which include:
- Extreme nervousness during interviews
- Overcompensating or exaggerated interactions
- Arriving late to the interview
- One spouse answering for the other or attorney prompting responses
- Lack of eye contact between spouses
- Evasive or vague answers to questions
- Attorney or third-party interference during questioning
- Submission of an excessive number of documents without strong evidence
- Suspicious or staged photographs
- Prior fraudulent activity by the petition preparer
- Marriage occurring shortly after the foreign spouse’s entry into the U.S.
- Unusual marital history (e.g., multiple prior marriages to foreign nationals)
- Children born during the marriage from a different partner
- Divorce followed immediately by remarriage
- Significant age difference between spouses
- Cultural or linguistic barriers between spouses
(USCIS guidelines on fraud indicators can be found in USCIS Policy Manual, Volume 8, Part G.)
Marriage Fraud and Grounds for Removal
Under INA § 237(a)(1)(G)(i), if a foreign national gains lawful status through marriage but the marriage ends within two years, they may face removal proceedings unless they can prove that the marriage was not entered into for the purpose of evading immigration laws.
- If a marriage ends early, there is a presumption of fraud, which the immigrant must overcome with evidence.
- If a person fails to fulfill a marriage agreement, they may be found removable under INA § 237(a)(1)(G)(ii).
Additionally, under INA § 212(a)(6)(C)(i), an individual who misrepresents facts to obtain immigration benefits—including through marriage fraud—can be found inadmissible and permanently barred from receiving a visa.
If USCIS finds that a conditional resident (CR) refused to consummate the marriage, this can be used as evidence that the individual never intended to enter a genuine marriage. However, if the U.S. citizen spouse fails to fulfill the marriage agreement, the foreign national may not necessarily be at fault.
Penalties for Engaging in a Sham Marriage
Marriage fraud carries serious immigration and criminal penalties. Under INA § 204(c), individuals found to have entered into a fraudulent marriage to obtain immigration benefits will be barred from future sponsorship and immigrant visa eligibility. This means they cannot obtain a green card or be sponsored for one in the future.
Furthermore, INA § 275(c) states that any person who knowingly enters into a sham marriage to evade immigration laws can face:
- Up to 5 years in prison
- Fines of up to $250,000
- Possible removal and permanent inadmissibility
Criminal convictions for marriage fraud can lead to additional charges, such as crimes involving moral turpitude (CIMT) or document fraud.
Even if a person is not criminally prosecuted, a finding of fraud will bar them from ever obtaining a U.S. visa or green card.
Relief from Marriage Fraud Findings
In some cases, individuals found inadmissible due to marriage fraud may be eligible for relief under INA § 237(a)(1)(H). This waiver allows a person to avoid removal if they were found inadmissible due to misrepresentation or fraud, provided they meet the following conditions:
- They are the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident (LPR).
- They are otherwise admissible to the United States.
- Their immigration status was obtained through misrepresentation rather than another form of ineligibility.
Importantly, this waiver is not available for individuals who engaged in a sham marriage solely for immigration benefits. Additionally, VAWA self-petitioners (victims of abuse by U.S. citizen or LPR spouses) may be eligible for certain waivers that do not require a qualifying relative.
Even if a waiver is available, marriage fraud findings can severely harm an applicant’s credibility, making it difficult to obtain other forms of immigration relief. Some forms of relief, even though still available in courts may be denied to lack of good moral character if a party is accused of marriage fraud, for example: Cancellation of Removal, U visa, T visa.
Marriage fraud is considered a serious violation of U.S. immigration law, and once an individual is found to have engaged in a fraudulent marriage, it becomes extremely difficult—if not impossible—to obtain legal status. Applicants should be prepared to present strong, credible evidence of their bona fide marriage and avoid inconsistencies that could raise suspicion.
If you are facing challenges in proving your marriage's legitimacy or have concerns about an immigration interview, consulting with an experienced immigration attorney is highly recommended.
For professional assistance with marriage-based green cards, contact my office at www.shautsova.com for a consultation.