Mistakes that applicants for fiancée and spousal visas make

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In 17 years of practicing immigration law, I see people make the same mistakes over and over again. These mistakes cause a large number of visa refusals all over the world.

For simplicity, I have grouped these mistakes into four different categories and given each one an easy-to-remember name.

Where's the Ex?

Who's your Daddy?

Who's been sleeping in my house?  

What have you done for me lately?

1. Where's the Ex?

If a petitioner or a visa applicant has been divorced previously, they will probably be asked about it. So it is helpful to know the name, address and phone number of each ex-spouse. The consulate performs a background check on the US petitioner and very likely, the name of the ex-husband or ex-wife will show up in that background check.

The consulate can ask the beneficiary about that. How will he or she answer the question at the consular interview? In my experience, saying "I don't know anything about that," does not help get the visa.

The burden is on the petitioner here. I have always thought it is best to walk on the side of full disclosure. A petitioner needs to be prepared to answer questions about his or her marital history. Not only that, the disclosure should be made as early in the process as possible. It should not wait until the day of the consular interview.

Vietnamese culture lends a wrinkle to "Where's the Ex?" situations. In the past, it was culturally accepted to have a dam cuoi and never formalize the marriage with the provincial authorities. That happens less today, but it still happens.

Thus in Vietnam, a couple could be viewed as married, yet still be single according to the civil authorities. "Where's the ex?" applies to these cases too, especially in cases where the couple has had children. US Citizen petitioners need to consider that.

That leads me to the next category:

2. Who's Your Daddy?

The consulate does research to see if there is a familial relation between a petitioner and a beneficiary.  Are they first cousins for example? Vietnamese law does not sanction the marriage of first cousins. The consulate may ask questions about the family tree of the couple.

Another time this line of inquiry becomes important is with children. If a female beneficiary has a child who is claimed to be petitioner's, the consulate may request evidence of that relationship. It has a right to do that, because part of the consulate's job is to determine presumptive US citizens. This line of inquiry could also disqualify a child from being a US citizen, if it turns out that he or she is not petitioner's child after all.

A denial letter sample

3. Who's Been Sleeping My House?

When a background check is performed on a US Citizen petitioner, it includes his or her residential and credit history. I have seen cases where the consulate mistakenly concludes the petitioner has a US girlfriend, when the background check comes back with an unrelated person of the opposite sex living in the same home.

I won an appeal with the Board of Immigration Appeals recently for a petitioner was still living in the same home as his ex-wife. A consulate (not in Vietnam) saw that living arrangement in a background check.  We were able to persuade the Board despite their living arrangements, they had been divorced for over a decade and there were no other entanglements to indicate they were still husband and wife. But US citizen petitioners need to remember the consulate probably knows who's been sleeping in your house. The beneficiary needs to be prepared for that.

4. What Have You Done for Me Lately?

This ground is easy to understand. Consulates are suspicious of marriages or engagements, where there is very little contact between petitioner and beneficiary. US citizens preparing to marry Vietnamese need to understand that it is not something you can do cheaply. They need to make a commitment to make regular visits to the beneficiary and where visiting is not possible, to supplement it with daily contact via electronic communications like email, chat or internet telephony.

Someone might correctly point out that these requirement are not to be found anywhere in US immigration law. That is correct. But Department of State and its consulates are not a legal culture. They're encouraged to find adverse facts that USCIS did not know at the time it approved the petition. In my experience practicing law, most of those adverse facts arise from one of these four categories.

This is not an easy or a safe process. It's grueling. Couples need to be prepared.


Marc Ellis has practiced immigration law for seventeen years. He's from Louisiana/Texas and graduated from the University of Alabama Law School. He's a member of the Louisiana State Bar and American Immigration Lawyers Association and is a licensed foreign legal representative in Vietnam. He has written many articles on immigration law and practices in front of many consulates around the world. He and his wife live in Ho Chi Minh City. He can be reached at chuyenvisamy.com or at 0908358009

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