One Type of Failed Alien-Citizen Marriage Decreases in Numbers

There's some good news on the usage of a particularly controversial type of visa, but, as it usually is in the immigration field, it is complicated.

As background, lots of marriages fail, including some between citizens and aliens, but there is only one kind of alien-citizen marriage in which Uncle Sam has, in effect, played a role. It is this category in which the numbers are down.

These failed marriages come with an unusual by-product: A brand-new green card for the alien involved. In these the alien claims (sometimes truthfully but often not) to have been abused by the citizen spouse. The alien then files what is known in the business as a "self-petition" for a spouse visa; it is routinely approved, the alien gets a green card, and the citizen usually has no chance to provide the citizen's side of the story, as both my colleague Dan Cadman and I have reported from time to time (see here and here).

The good news is that the incidence of these self-petitioner marriages (SPMs hereafter) has dropped by a half in the period 2014-2017, probably because the preliminary step (this is where Uncle Sam comes in) is happening less frequently. This is the approval of an application for the K-1 (fiancé) visa.

Routinely the citizen (usually male) is in this country, and the alien (usually female) is not. So he files the form I-129F, asking the Department of Homeland Security to grant a petition for the K-1 visa. The next step is that an overseas consular officer decides whether to grant the visa to an alien with an approved I-129F. Then in most, but not all, cases, the alien comes to the United States and marries the citizen.

It is only after the petition has been approved, and the visa issued by Uncle Sam, that the marriage can take place (usually it is in this country) and it is only after the marriage that the alien can claim abuse.

The SPMs, thus, are 100 percent failed marriages; either the citizen has abused the alien, or the alien has lied about such abuse. There are no other possibilities.

No matter which is true, it is a disastrous marriage, and it is one that has been, in effect, endorsed by one or two federal agencies. (An SPM also can occur without going through the K-1 process just outlined if the spouse already arrived here on another visa.).

Given this situation, it would be helpful to minimize the number of SPMs, and the data shows that this seems to be occurring.

The longish table below has data for FYs 2013 through 2017, and some numbers for the first half of FY 18, the period ending on March 30, 2018. It shows that:

• The number of K-1 fiancé petitions approved by DHS dropped from more than 50,000 a year in FY 2015 to the rate of about 33,000 a year in FY 2017 and in the first six months of FY 2018;
• The number of self-petitioning spouses of citizens dropped from 7,600 in FY 2014 to 3,441 in FY 2017; there must be some cause-and-effect here; and
• The ratio (and this may be a coincidence) of fiancé petitions approved to SPMs was close to 10:1 throughout FYs 2015, 2016, and 2017 (that is the comparison of the numbers in the second and the seventh columns of the table).

Why the Decreases?

There appear to be two main reasons for these decreases.

The first is a side-effect of the San Bernardino massacre. A Saudi woman, who had arrived in the United States with a K-1 visa, was one of the shooters and the record suggested that her application had not been handled with sufficient care. This happened on December 2, 2015, in the first quarter of FY 2016.

One of my postings at the time stated that a Reuters news article reported that the government had decided to be more careful with these visas, and would make sure that an interview was required, as it had not been in the past.

The second reason, which can be gleaned from a close reading of the table, is a growing backlog of these petitions, thus decreasing, or simply postponing, all else being equal, the number of potential approvals.

Relatedly, we find that when USCIS adjudicators took more time for their decision-making they issued more denials of K-1 petitions than they did when they took less time. Or more precisely, the denial rate was higher, on average, in fiscal quarters in which the number of pending cases increased (i.e., the backlog got larger) than in the quarters when the backlog became smaller.

The denial rate averaged about 23 percent of the number of cases decided in the quarters the backlogs increased, and fell to about 13 percent during the quarters when they decreased. That general pattern held true for the last 17 months of the Obama administration as well as during the first five months of the Trump administration.

That seems to make sense. I have heard in many conversations with officials over the years that a negative decision creates more work for the decider than a positive one. But I do not think I have seen the denial rate/backlog statistical analysis applied to immigration processing before. It would be interesting to see if the same ratio of backlogs and denial rates applied to other classes of would-be immigrants.

It would also make a great, socially useful graduate school dissertation topic.

Getting back to our numbers, in the most recent reading, at the end of the second quarter of FY 2018, the I-129F backlog stood at 27,948. At the start of the second quarter of 2016, a few days after the San Bernardino shooting, it was 13,069. So the backlog has more than doubled over that period, growing by 14,879.

This leads to a troubling thought. If the 14,879 were subject to the roughly 20 percent denial rate for petitions experienced in that time period, we would have 11,900 or so more approved K-1 petitions lurking among the total pending. And if these cases turn out to produce about one-tenth that many SPMs, as we have seen in the recent past, that would mean that hidden in the backlog are another 1,190 potential government-sanctioned failed marriages that are just about to happen, as soon as Uncle Sam approves those potential visas.

That is a grim prospect.

On the other hand, during the longer waiting period some of those relationships may well fall apart, including some of those with potential SPMs.

A Note on Self-Petitioning Spouses of Aliens

The immigration law also allows abused alien spouses of permanent resident aliens to be self-petitioning migrants, but we did not deal with this population in this posting because:

• There are relatively few of them, 479 as opposed to the 3,441 citizen-related marriages in FY 2017;
• A different process is used; these spouses are ineligible for K-1 visas, for example;
• There is a waiting period, which is not true of abused spouses of citizens;
• These migrants are covered by ceilings, so an increase in their number does not increase the U.S. population; those arriving with SPMs are admitted without reference to any ceilings, and one more of them is an addition to the U.S. population; and
• Although this is anecdotal, I have never encountered in my years in this business a story of a green card holder spouse being accused of abuse.