If USCIS sends a Notice of Intent to Deny (NOID) in a marriage-based case, the applicant has 30 days to show why the case should not be denied. In the case discussed, USCIS accuses the applicant of fraud or misrepresentation during a past tourist visa: according to the agency, she told the consul she was married and had a child, although there was no legal marriage at the time. To keep the case alive, she must file Form I-601 for a fraud waiver and do so before the deadline expires.
What the notice means and what the accusation is
A Notice of Intent to Deny is described as a very harsh request for evidence. The response deadline is 30 days, and if the request isn’t satisfied, the case will be denied shortly after the deadline passes.
In the case discussed, the applicant was applying for a marriage-based green card, having previously entered the US as a tourist. The marriage interview took place about four months ago. The I-130 petition was approved right away, while the I-485 adjustment of status application remained pending. Then a notice arrived alleging fraud or misrepresentation on the tourist visa. The wording of the notice is vague. In essence, USCIS claims that during the earlier consular interview the applicant said she was married and had a child, when there was no legal marriage at the time. There was indeed a child, but the partner was a long-term boyfriend. At that interview, the consul directly asked about a spouse and child.
Why a fraud waiver is harder than the notice suggests
The notice states that the applicant needs to file I-601 along with a statement from the US citizen spouse about what the hardship would be. That wording creates the impression that simply filing the form is enough. In practice, it isn’t.
For a fraud waiver, the applicant must show she has a spouse who is a US citizen or lawful permanent resident, or a parent who is one. In addition, that family member must suffer extreme hardship if separation prevents them from staying together in the US. Extreme hardship is a high standard. It must be shown that the US citizen or permanent resident would suffer more than an ordinary spouse would from separation. Depression, anxiety, loss of a second income, loss of a partner’s companionship, or loss of a mother for shared children are considered ordinary consequences of separation. Something beyond that must be shown.
A fraud waiver package typically runs several hundred pages with supporting documents, and a 30-day deadline is not enough time for such a package.
The main problem is time
To respond to the notice, the applicant must first file I-601 with USCIS by mail and wait for a receipt notice, which arrives about two weeks later. Only with that receipt and a full copy of the filed package can she respond to the notice. All these steps have to fit within the same 30 days, and over two weeks are spent just on mailing and waiting for the receipt. That makes meeting the deadline very difficult.
If the adjustment of status is denied
In cases like this, denial of the I-485 is quite possible, and with weak evidence of hardship to the citizen spouse or parent, it’s quite likely. Then the applicant must decide whether to refile for adjustment of status with a waiver as a defense against removal in immigration court, or to request voluntary departure once removal proceedings begin.
In general, if a waiver is needed, it’s preferable to file it in US immigration court rather than through a consulate. After leaving the country, the approved I-130 petition is transferred to the National Visa Center, followed by a consular interview. After the interview, the consulate makes a new inadmissibility determination, and only then is I-601 filed with USCIS. The current processing time for an I-601 that is not filed in response to a Notice of Intent to Deny and not filed directly in immigration court is about three years. Accounting for the case transfer, the interview, and the waiver, the applicant could easily spend four years outside the US before a decision is reached. If approved, she would then need a visa to return to the US, assuming there are no other issues in the case.
If enough unlawful presence has accrued in the US, voluntary departure may not even be an option, since an unlawful presence waiver would also be needed. That can be filed together with the fraud waiver. It’s not the main issue here, but it needs to be considered before leaving the country.
Why early planning matters
If there’s possible fraud or misrepresentation in someone’s immigration history, it makes sense to start thinking early about hardship to the qualifying family member for a waiver — before USCIS issues a fraud finding. In the case discussed, the clock is working against the applicant, and even with a complete set of documents, the chances of success aren’t very high. Overall, the situation is very difficult, though in this particular case there are grounds for cautious optimism that depend on the specifics of the case and aren’t disclosed here.
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