Wednesday, October 10, 2012

The Nuances of the Marriage Fraud Interview

Below is an article published 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!

Satveer Chaudhary, Esq.
Chaudhary Law Office, PLLC
(952) 525-2285

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/
• 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;
• 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 interviewedseparately 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 note taking 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.