In One Subclass of Immigrants, 100% of the Visas Reflect a Failure

There is a mix of failures and successes in most subclasses of legal immigrants, but in one small subclass there are only failures. There are no numerical upper limits for most of this subclass, but, fortunately, only about one new legal immigrant in 230 or so is in it.

I am referring to self-petitioning spouses, a group of about 4,000 a year. In every instance, one of two unfortunate things has happened, either

1. The alien spouse is lying about abuse by the citizen or green card spouse; or
2. The alien spouse is telling the truth about being abused by the citizen or green card spouse.

In both cases the alien is given a green card because of the failed marriage, an odd priority to say the least. In many cases, the citizen or green card partner is stuck with de facto alimony for life and does not have a chance to contest the abuse charges within the immigration system, as my colleagues and I have reported from time to time.

As Elena Maria Lopez, both a victim of one of these marriages and an activist in the field, says:

The feds have created a way for someone to falsely claim abuse, get a quick green card — no questions asked — and then have the American pay what becomes, in essence, federal alimony for life. Even more disturbing? The moment a foreigner claims to be any type of abuse or crime victim, their criminal activities, fraud, and inadmissibility can't be used against them within the immigration process. It's a subsidized “get out of jail free” card.

What she is describing is the way that the Department of Homeland Security interprets the provisions of the Violence Against Women Act regarding these failed marriages.

All filings in this category are called “self-petitions” because no citizen or green card holder will file for these, by now, ex-spouses — they must file on their own behalf. I am sure that in some cases the citizen or green card spouse is, in fact, abusive but we have no way of knowing the incidence of truth or falseness of the charges. All we know is the number of times that USCIS has accepted the alien’s version of the story and has approved the petitions.

The Total Flow of Self-Petitioning Spouses. The number of self-petitioning spouses has varied but has drifted downward in recent years, until FY 2020 when Covid-19 seriously reduced the inflows in most migrant categories, including this one. The total number of such approvals, in FYs 2015 through 2020, in six different sub-sub-categories (DHS codes B21, B26, IB1, IB6, BX1, and BX6) for alien spouses is as follows, according to Table 7 in the Yearbook for Immigration Statistics:

Most of the self-petitioning spouses married citizens, rather than permanent resident aliens. (There are, after all, many more of the former than the latter.) Most of the petitions were for adjustments of persons already here, rather than for incoming immigrants.

An alien who has had what the alien regards as an abusive marriage with a citizen or green card holder overseas can use that as a reason to get a green card to come to the U.S.! We suspect that most of the self-petitioners are women; some self-petitioners also bring children with them, usually not blood relatives of the American spouse.

Nations of Origin. But what nations provide the aliens that benefit from these failed marriages? Former CIS intern Kathleen Sharkey probed a source: the limited data on appeals in this field that went to the Administrative Appeals Office (AAO) of USCIS. She found that 57 cases had made it to AAO over a period of four years. Of those, 11 were from Mexico, and seven were from Nigeria; the rest were scattered.

Last year we filed a Freedom of Information Act request with USCIS (more on that methodology later) and secured nation of origin data on more than 16,000 successful “self-petitioning” spouse applications over a period of six years (FYs 2015-2020). Again, Mexico led the way with the most petitions by far, and with a much higher percentage of these petitions to overall immigration from that country than the global average, which we found was about 0.42 percent. Mexico’s was more than twice that: In 2019 it was 0.96 percent.

Jamaica came in second in terms of numbers, and first in terms of percentages, as the following table for 2019 shows. This was the last year before Covid-19 started distorting all migration data.

We asked USCIS for data on the 10 largest nation-by-nation contributions to the self-petitioned spouses total for the fiscal years 2015 through 2020, perhaps not the best-shaped request, as we will explain later.

The data we received showed 13 nations that had made it into the top-10 category in at least one year; put a different way, the leading nations of origin of the self-petitioned spouses looked very much the same year after year, with Mexico always in first place, always by a country mile, Jamaica always in second place, with another Western Hemisphere nation, such as Brazil or the Dominican Republic, in third place.

Of the 60 listings (10 each for six years), 48 were in this hemisphere, and 12 were in the other. Six nations made the list every year (Mexico, Jamaica, the Dominican Republic, El Salvador, Colombia, and Honduras); Nigeria appeared five times; Brazil, Guatemala, Peru, and the Philippines, four each; Ghana twice; and India once. Mexico in five of the six years had more self-petitioning spouses than the next nine nations combined. As we discuss later, this listing probably overstates the predominance of the Western Hemisphere among the self-petitioners, but not by much.

These are the data for 2019, the last year before Covid-19 raised its ugly head; it is fairly typical of the other five years.

Policy Proposal. We have identified in bold, six nations in which the incidence of self-petitioning marriages is 150 percent or more on the global average of such marriages, 0.44 percent. Each of the six nations is among the top-10 nations in the production of these failed marriages.

Our suggestion is that the Departments of State and Homeland Security mount an experimental program for those six nations for two years in which special efforts are made in connection with decisions about self-petitioning marriages and preliminary moves such as the issuance of K-1 visas to the would-be alien brides and grooms.

It should be noted in this connection that the K-1 visa is just about the only one among many different kinds of visas that is not necessary. If the alien travels to the U.S. to marry the citizen, the alien can do this with an existing visa; if the citizen flies to the alien’s nation for marriage, there is no need for a K-1 visa.

In short, a K-1 visa exists only to facilitate a marriage in which the citizen refuses to fly to the alien’s nation for marriage and the alien refuses to fly to the States, or cannot get a visa to do so. In short, these are cases in which loves does not conquer all, and a marriage can only be arranged with the explicit assistance of the U.S. immigration system.

This suggests that any application for a K-1 visa should be regarded as a sign that something is not very strong in the impending marriage. We also know from much anecdotal evidence that K-1 visas are often the part of a story in which the alien marries the citizen and then, after papers are filed, mounts a questionable story of abuse in order to shred the marriage and secure the green card.

So K-1 visas should be issued carefully, particularly in the six nations that produce more than their share of these failed marriages. Records should be kept to see if this approach is useful on a wider scale.

A Possible Technique. One part of the screening of K-1 visa applications could be the use of a variation of an old INS technique when officials suspected a phony marriage. In those days, parallel interviews of bride and groom were mounted at the same time, with one investigator asking the same questions of the bride, and another of the groom, in separate locations. If the answers meshed, that ended the process; if they did not, the investigation would continue.

Our suggestion is that the Foreign Service officer interviewing the alien applicant for a K-1 visa use a variation of the Zoom process by which he could do the same thing, all at once, putting the bride and groom, alternately, in “the waiting room” while he interviewed the other; the alien and the citizen applicant would not hear the conversation with the other. The FSO could also put both bride and groom together to see how well they communicated with each other.

A key question — one that the State Department might find uncomfortable — would be asked separately: How often have you slept together, and where did this happen?

Research Methodology

In order to shed light on the narrow question, we asked USCIS last year to share with us the lists of the 10 nations that produced the most self-petitioning spouses in the years 2015-2020. Without thinking more carefully we assumed that the request would produce six lists of 10 nations with the numbers of self-petitioning spouses attached.

At first, nothing happened, and our lawyer/specialist in this field, Julie Axelrod, sued USCIS in federal court to get a response.

Then something interesting, and depressing, happened. USCIS, not wanting to give up a single fact not specifically requested, then sent us six lists of the 10 most prominent nations in this field, but with no numbers. I felt foolish for asking the question incorrectly, but Axelrod negotiated with the other side again and this time we got the numbers in an out-of-court settlement.

I learned two lessons from this adventure. The first is to be utterly precise in one’s request for information and to clear such requests with our lawyer.

The second is more complicated. I had asked for data on the 10 top nations providing the self-petitioning spouses in each of six years, and I got that, but there are about 200 nations and colonies with whom we have immigration interactions. All but 13 of them were left out of the equation. We do not know about a nation that might have produced a modest number of self-petitioners, but a higher percentage than Jamaica, for example.

What I should have done was to ask for the data from all nations, and then struggled with reams of material. Asking for the data on the 10 leading nations produced information on the Western Hemisphere nations that lead the list, but unwittingly denied information on the traffic from much of Africa, where the nations are more numerous than in Latin America. We may have overstated the significance of this kind of immigration from our own hemisphere as a result.

A further mistake was not to ask for data by gender. My colleague Art Arthur told me that there are all too many cases when an alien, with the build of an NFL linebacker, would (successfully) claim abuse at the hands of a citizen spouse half his size.

I will try to do better next time.