Proving Real or Bona Fide Marriage
Author: New York Immigration Lawyer Alena Shautsova
If one of spouses in the marriage with a US citizen, is a non citizen who would like to reside in the US based on the marriage, the government will ask the couple to prove that the marriage is real or bona fide. Usually, a citizen spouse would need to submit form I-130 (petition for immediate relative) and attach prove of couple’s life together. As per instructions to the form, a couple can present joint lease, joint bank accounts, joint utility bills, joint insurance policies, birth certificates of common children, titles to property… and also photos. In case the marriage is new and the couple really does not have much of joint proves, they can still show that their relationship is real by presenting affidavits from persons who are aware of their relationship and who can testify that the marriage in fact is real.
The question remains, however, how much proof is satisfactory. What to do if the marriage ended and now the non-citizen by him/herself has to show that the marriage was real?
Often, Immigration Judges and USCIS demand paper proof of the marriage which usually, if the couple had a fall out would not exist. (Rarely people who really break up would hold on to common pictures or documents. Rather those who really go through a bitter break up would want to forget everything and anything that used to unite them). However, the “paper proof” is not the only way one can prove that the marriage was real. The burden of preponderance of evidence is met where one of the spouses can present detailed and credible testimony regarding the marital relationship held 7the Circuit Court of Appeals. See Hernandez v. Lynch, 6/18/15. No. 14-3305 (7th Cir. 2015).
As such, it is important to remember that as long as the non-citizen is found credible as to the circumstances of the marriage, his/her I 751 (petition to remove condition on residency) should be granted. This is an important reminder to all dealing with I 751 petitions: the government should not increase the burden established by law just because some assume that there should be some “other” evidence of marriage than those provided. The law does not say that any applicant MUST present certain evidence, but rather states that an applicant has to prove the bona fide marriage by the preponderance of evidence. See 8 U.S.C. § 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii).