Removing conditions on permanent residence when the U.S. petitioner dies

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

One of the most common questions asked by those who get a green card by a marriage that is less than two years old is, “how and when do I remove the conditions on my green card?” Sometimes the U.S. spouse may be unwilling to file a joint petition and there may be issues of domestic abuse. In a few cases however the U.S. spouse may have died after the beneficiary spouse obtained conditional permanent residence but before the two year anniversary of obtaining conditional permanent residence[1]

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

A son or daughter of the foreign spouse who achieves conditional residence within 90 days of the principal beneficiary (the foreign spouse) may be included on the same I-751 form even though such a combined petition attracts a separate biometric fee for each son or daughter regardless of age. Otherwise the son or daughter must file a separate petition.

The permanent resident status of a conditional permanent resident who fails to file the I-751 on time, will end, unless the person can show good cause that excuses a late filing. Such a person will also begin to accumulate unlawful presence which can lead to 3 or 10 year bars from the United States, if they leave.

Section 216 (c)(1) further has two requirements for removal of the condition – a jointly filed petition and an in person I-751 interview. The service can waive an I-751 interview if it is satisfied of the bona fides of the marriage based on the petition and supporting evidence. But the USCIS sometimes conducts random interviews of joint petitioners or waiver requesters.The service is more likely to waive a joint interview if the case is well-documented but may still need an interview if verification of the information through its fraud unit turns up derogatory information.

For a person who cannot file jointly because of reasons other than death of the petitioning spouse (e.g. I-751 divorce), Section 216 (c) (4) of the immigration and Nationality Act provide for hardship waivers of the joint filing and interview requirements under certain conditions. For such hardship waivers the CPR must submit a letter with the I-751 petition.

But when the petitioning spouse dies during the 2-year conditional period the law does not require a joint petition and interview and no separate I-751 waiver is required other than that requested on form I-751. Therefore the conditional resident petitioner should select (c) in Part 2 of the I-751 form and provide documentary evidence of the death as supporting evidence. The death of the petitioning spouse does not, however relieve the I-751 petitioner from the burden to prove that the marriage which ended in death was in good faith and was not entered into solely for evading the immigration laws.

A conditional permanent resident under section 216(a) of the Immigration and Nationality Act, who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under section 216(c)(1), does not need a separate section 216(c)(4) hardship waiver if the petitioning spouse died during the 2-year conditional period.

Approval

If satisfied that the marriage was not for the purpose of evading the immigration laws, USCIS may approve the petition without an interview. If the USCIS approves the petition it will remove the condition on permanent residence as of the second anniversary of receipt of conditional permanent resident status and issue a new Permanent Resident card through the mail.

RFEs, or requests for more evidence

Where the initial filing is deficient the USCIS may issue a request for more information or evidence or RFE. Failure to respond would lead to a denial due to abandonment.

If the RFE is not properly responded to the USCIS may schedule an interview. If the conditional resident alien fails to appear for an interview about the petition the alien’s permanent residence status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence[2].

Denial

If USCIS intends to deny the petition it will provide a Notice of Intent to Deny stating any reasons for so intending. The petitioner may then send rebuttal evidence which USCIS must consider. If the petition is ultimately denied the alien’s permanent resident status will end as of the date of the written denial.

Review of denial

A person whose i-751 petition was denied can

1. request the USCIS to certify the case to the Administrative Appeals Unit[3]

2. file a motion to reopen the case based on new facts, or a motion to reconsider the case citing valid reasons[4], or

3. seek review of the decision in removal proceedings. In such proceedings ICE must prove by a preponderance of the evidence that the petition was properly terminated [5]. But the petitioner bears the burden of proving eligibility for the petition or waiver of the joint filing requirement. He or she must be prepared to submit evidence of a good faith marriage and the death of the U.S. spouse.

[1] This situation is different from a case where a foreign national obtained permanent residence based on being the widow(er) of a US citizen. In such a case, the widow(er) spouse should not file I-751.

[2] 8 C.F.R. 216.4

[3] 8 C.F.R. 103.4 (a) 4,5

[4] 8 C.F.R. 103.5

[5] 8 C.F.R. 216.3, 1216.3

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A discussion of the frightening Notice to Appear

Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship if an alien is deported.

What is a notice to appear?

The issue of a notice to appear (NTA) is notice to a person that removal proceedings has began against him or her. But removal proceedings begin when the notice to appear is filed in an immigration court (8 C.F.R. 1003.14). A notice to appear form I-862 is a charging document containing allegations against a person in removal or deportation proceedings. It alleges that the person is not a United States citizen, states the grounds under which the person is removable, and the specific law that supports removal.

The notice to appear may also state the date, place and time of the immigration court hearing for the person to appear before an immigration judge. However the notice of hearing may be sent in a separate letter.

It is very important that any person who has received a notice to appear tell the immigration court in writing of any change of address within 5 days of any such change so that they may receive notices from the court. Otherwise an immigration court judge may issue what is known as an in absentia order. If a judge makes an in absentia order against a foreign national it can be used by ICE to rapidly remove the foreign national from the United States without the benefit of a hearing.  Avoid an in absentia order by showing up on time for court and notifying the court of any change of address.

The NTA also tells the foreign national of his or her right to an immigration attorney for representation or to answer any legal questions.

Not everyone who receives an NTA is arrested. But a person who is arrested by immigration must be issued an extra Form I-826 Notice of Rights and Request for Disposition. If you wish to stay in the United States to pursue your rights and apply for relief, you must not allow anyone to talk you into agreeing to the allegations and accepting voluntary departure. Preserve your right to a hearing before an Immigration Judge – tick the option to ask to have a hearing before an immigration judge.

Will I be put on a plane and physically removed from the United States when I appear at the immigration court?

No. This is often cited by some persons for their failure to appear at immigration court. The law does not allow a person coming to immigration court to protect his or her rights to be deported. The deportation process must be completed. Furthermore you have a right to an appeal to the BIA or to federal courts. One of the most important things to realize is that deportation is a process and it typically takes many months depending on how crowded an immigration court docket is. With appeals, the process can sometimes take years.

Do I need a lawyer?

Yes you do. Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship from removal of their alien relatives. A person without an attorney may not have his legal rights protected. You can be assured that the government will have its attorneys working to get you deported. So lawyer up and protect your rights!

A lawyer will also help you to find the type of relief for which you are eligible and gather the right evidence (e.g. affidavits, court records etc.) necessary to support your defense and application for discretionary relief that will allow you to remain in the United States.

Conclusion – Pursue your legal rights before an Immigration Judge

The removal process can take years: removal does not happen overnight. Furthermore there are many defenses and relief from removal (e.g. cancellation of removal, withholding of removal, adjustment of status, asylum, registry etc) that may be available depending on the facts of your case. Seek legal counsel to know and protect your rights.

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An explanation of K1 Fiancé Visa Adjustment of Status and Divorce

A person in K1 status can only adjust based on marriage to the US citizen petitioner, not another marriage

Sometimes a k1 fiancé visa marriage like any other marriage does not always go as plan despite even the best intention. Sometimes there is a breakdown in the marriage, a k1 visa divorce and the foreign national has questions for an immigration lawyer about his/her eligibility for adjustment of status and a green card.

A k1 visa holder can only adjust status on the basis of a marriage to the US citizen petitioner within 90 days of admission to the United States. The Immigration and Marriage Fraud Amendment of 1986, explicitly prohibits a person in K1 status from adjusting on the basis of marriage to someone else.

What the K1 must show if there is a divorce

If the marriage occurred within 90 days, a person in K1 status (and her dependent children admitted in K2 status) can still adjust status to that of an alien lawfully admitted to permanent residence even if the marriage ends in divorce. Matter of Alfred Sesay, 25 I&N Dec. 431 (BIA 2011) & Matter of Le, 25 I&N Dec. 541 (BIA 2011).

A person in K1 status can only adjust based on marriage to the US citizen petitioner, not another marriage

Sometimes a k1 fiancé visa marriage like any other marriage does not always go as plan despite even the best intention. Sometimes there is a breakdown in the marriage, a k1 visa divorce and the foreign national has questions for an immigration lawyer about his/her eligibility for adjustment of status and a green card.

A k1 visa holder can only adjust status on the basis of a marriage to the US citizen petitioner within 90 days of admission to the United States. The Immigration and Marriage Fraud Amendment of 1986, explicitly prohibits a person in K1 status from adjusting on the basis of marriage to someone else.

What the K1 must show if there is a divorce

If the marriage occurred within 90 days, a person in K1 status (and her dependent children admitted in K2 status) can still adjust status to that of an alien lawfully admitted to permanent residence even if the marriage ends in divorce. Matter of Alfred Sesay, 25 I&N Dec. 431 (BIA 2011) & Matter of Le, 25 I&N Dec. 541 (BIA 2011).

The applicant must prove that

  1. the marriage occurred within 90 days of admission and that
  2. The marriage was in good faith when it occurred (affidavits of family and friends, joint assets etc.).

Because adjustment of status is an extraordinary relief, it is granted or denied based upon the equities and adverse factors present in each person’s case. Furthermore the relationship in a K1 visa case is subject to more scrutiny than for marriage immigration cases. Factors surrounding the divorce such as the length of the marriage, conduct after the marriage, whether the couple lived together, the reason for the divorce and a failure to support minor children may be considered in determining whether the marriage was in good faith. But if the marriage is real at the start, it is valid for adjustment of status.

A person in K1 status adjusts status to that of lawful permanent resident on the basis of the earlier approved I-129F petition. The divorce does not revoke this type of petition and the K1 is eligible for adjustment upon admission but conditioned on the marriage to the US citizen. The person on K1 status must still not be otherwise inadmissible. The affidavit of support requirement is met by an approved I-134.

Removing conditions on Permanent Residence

If the K1 was granted adjustment of status based upon a marriage to a US citizen that is less two years old when the adjustment is decided, the person will be granted conditional permanent resident status. If the K1 is no longer married, he or she does not have to wait until within 90 days of the second anniversary of the grant of conditional permanent residence to apply to Remove Conditions on Permanent Residence Based on Marriage; he or she can do so any time after the divorce, i.e. he or she can apply early. He or she must however request a termination of marriage waiver of the joint filing and interview requirement remove conditions on permanent residence based on marriage.

To qualify for a termination of marriage waiver, the conditional resident must prove that

  1. he or she entered into the marriage “in good faith,”
  2. the marriage was legally terminated, and
  3. The conditional resident was “not at fault” in failing to meet the joint-petition requirement.

Conclusion

A K1 (and those admitted on K2) should seek the counsel of an immigration attorney before filling for adjustment of status after the end or breakdown of the marriage that is the basis of K1 status (or K2 status).

A K1 visa holder who got married to a US citizen within 90 days and who is concerned about their status should first realize that there are provisions in the law by which he or she can still adjust status. But he or she should consult an immigration attorney as soon as possible. Sharing your day-to-day experiences with family and trusted friends may also be helpful when you need witnesses to prove that even though the marriage ended it was real.

If you want to know how to get a fiancé visa or have issues with a fiance visa for the United States commonly called the k 1 fiance visa please give my law firm a call at 1-888-747-1108 or contact us through the Contact Us form

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Naturalization denied – break in continuous residence by prolonged absence from the United States

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

To become a naturalized United States citizen one of the set of requirements that a lawful permanent resident must meet is continuous residence in the United States.

What are the continuous residence requirements?

The continuous residence requirements for a lawful permanent resident to become a naturalized US citizen are –

  1. At least five (5) years of continuous residence immediately before the date of filing of his petition for naturalization (three (3) years in the case of qualified spouses of U.S. citizens), including physical presence in the United States for at least one half of the five-year (or three (3) years for qualified spouse of U.S. citizens).
  2. At least three months of continuous residence in the state or district in which she will file her naturalization petition, immediately before filing, including physical presence for at least one half of the period of continuous residence in the state or district of filing, and
  3.  Continuous residence within the United States from the date of the petition up to the time of admission as a citizen [1].

A person is not yet eligible for naturalization if there is a break or disruption in continuity of residence [2].

The purpose of the residency requirement

Since as far back as 1790 the US immigration laws have made residence within the United States after entry a requirement for naturalization as an American citizen.

The Second Circuit Court of Appeals has described the continuous residency requirement as a proving ground on which the alien’s good moral character and attachment to the principles of the U.S. constitution are tested [3].

The purpose of the continuous residence requirements has been to set up a period of probation during which applicants can learn the language; familiarize themselves with U.S. customs and institutions; shed foreign attachments; acquire attachment to the principles of the U.S Constitution and government; show their ability to conduct themselves as law-abiding citizens; and generally prove their fitness to be accepted as U.S. citizens [4].

Residence defined

The INA defines residence as “the place of general abode” and “the place of general abode” of a person as his or her principal, actual dwelling place in fact, without regard to intent. So therefore residence is where a person actually lives whether it was his intention to make it his residence or not [5]. For this reason (and for the issue of abandonment, not discussed here), a lawful permanent resident should seek legal advice before going abroad for anything more than a brief and casual visit.

Breaking continuous residence

Under current immigration regulations [6] absence for a continuous period of between six months and a year during the period for which continuous residence is required create a presumption of a break or disruption in the continuous residence. The naturalization petitioner has the burden to present evidence (discussed below) to rebut the presumption. If the petitioner presents satisfactory evidence he or she has continuous residence despite absence of 6 months to one year from the United States. With limited exceptions involving work overseas for the United States government and US government contractors, if the petitioner for naturalization has been continuously absent from the United States in excess of one year during the period for which continuous residence is required, then there is a break in continuous residence as a matter of law.

Overcoming presumption of a break in continuous residence for applicant’s absence for between 6 months and one year.

To rebut a presumption of a break in continuous residence because of a prolonged absence from the United States for between 6 months and one year, a petitioner can submit documentary evidence showing that during the absence:

(A) She did not stop her employment in the United States;

(B) Her immediate family remained in the United States;

(C) She retained full access to his or her United States home; or

(D) She did not obtain employment while abroad.

________________________________________

[1] See, Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D. Mich. 1995)

[2] Id.

[3] United States v. Camean, 174 F.2d 151, 153 (2d Cir. 1949)

[4] United States v. Camean, 174 F.2d 151 (2d Cir. 1949); United States v. Mulvey, 232 F. 513 (2d Cir. 1916); In re Vasicek, 271 F. 326, 329 (E.D. Mo. 1921); In re Di Giovine, 242 F. 741 (W.D.N.Y. 1917) .

[5] 8 USCS § 1101(a) (33).

[6] 8 CFR 316.5(c).

 

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Often asked questions about affidavit of support form I-864

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Q. When must the affidavit of support be filed?

A.  It is filed as part of the Adjustment of Status Application package. But if processing at a US consulate the National Visa Center (NVC) will send an Affidavit of Support processing fee invoice and payment instructions to the petitioner. After the petitioner has paid the fee and obtained a receipt he or she will get the proper instructions about completing the Affidavit of Support forms. He or she must be sure to complete the form properly and send tax returns and other supporting documents such as a job letter on company letterhead stating his or her income to the NVC with the applicants name and NVC case number at the upper right hand corner of each document.

Q. Who is eligible to be a sponsor?

A. A sponsor on an affidavit of support must satisfy all the following three requirements;

  1. A U.S. citizen, national or LPR;
  2. At least 18 years old; and
  3. Domiciled within the United States or in any U.S. territory or possession.

Q. Does the sponsor have to be employed?

A. No. The sponsor has other options besides income to show adequate financial support for the sponsored immigrant if his income falls short of the minimum requirement for his family size. He may show adequate assets, usually between 3 and 5 times the shortfall. The sponsor can also count the assets and income of household members (Form I-864A) to prove adequate support for the intended immigrants or seek a joint sponsor with the required minimum income as a last resort. If the intended immigrant has significant assets (e.g. real estate, stock, bonds) which are available, then this may also be counted.  Therefore a retired or temporarily unemployed person can still be a sponsor though current use of welfare benefits is a negative factor.

Q. If the household members join their income and assets, because the petitioner does not have enough income, must the household members file a change of address form with USCIS?

A. No. Only sponsors must inform the USCIS of a change of address. Household members who execute Forms I-864A, Contract Between Sponsor and Household Member have no obligation to inform USCIS when they change address.

Q. How does income does my sponsor have to show and how does she prove income?

A. The key is using the federal poverty income guidelines Form I-864P to find the minimum income requirement for the family size unit of the sponsor. The sponsor must be able to show the minimum income for his or her family unit size. While a bigger family unit size increases the minimum income requirement it does allow the sponsor to include more household member’s income.

The minimum income requirement is 125 percent of the federal poverty guideline for a given family unit size. But if, the petitioner is actively serving in the US armed forces, the minimum income requirement is 100 percent. The sponsor should verify his or her income with certified copies of federal tax returns for three earlier years. Additionally notarized copies of employment letters should also be used.

Q. How do I determine family unit size for my case?

A. The family unit size includes the following persons even if they do not live at the same residence (count each person once[1])

  1. The sponsor
  2. The sponsor’s spouse
  3. The sponsor’s unmarried children under 21 unless they are emancipated
  4. Any person  claimed by the sponsor as a dependent for tax purposes on the most recent tax return
  5. The number of aliens the sponsor has sponsored under past Forms I-864 for whom the sponsor’s support obligation has not terminated
  6. Any of the sponsor’s spouse, child, adult son or daughter, parent or sibling residing with the sponsor if including their income would be helpful, and
  7. The sponsored immigrant and all accompanying derivative family members (spouse or dependent children of sponsored immigrant) under current Form I-864, even if such persons do not or will not have the same principal residence as the sponsor.

Q. Must the co-sponsor be a relative?

A. No. But a relative should be used where possible.

Q. Can the income of joint sponsors be joined together to satisfy the minimum income requirement?
A. No. Each joint sponsor must satisfy the income requirement on her own or combine assets/income with the intended immigrant or with members of her household.
I hope this helps you to comply with the affidavit of support form requirement.

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K-3 Visa Checklist – spouse visa to usa

K-3 visa petition (for spouse visa to usa)

So you have married the love of your life in Vietnam, Ghana or Malaysia, and would have loved for her or him to board the plane with you back to the United States. If only it were that easy.

A K-3 visa is a non-immigrant visa designed for US citizens to bring their foreign spouses to the United States quickly while the approval of the marriage based green card petition for the foreign spouse is still pending. Unlike consular processing which can take 12-18 months, the K-3 visa process usually take anywhere from 4-6 months. K-3 visas are therefore a very useful tools to reunite couples.

Once the K-3 spouse (non-immigrant status) is in the United States he or she can apply for adjustment of status to that of lawful permanent resident (immigrant status).

K-3 visa petition ()

So you have married the love of your life in Vietnam, Ghana or Malaysia, and would have loved for her or him to board the plane with you back to the United States. If only it were that easy.

A K-3 visa is a non-immigrant visa designed for US citizens to bring their foreign spouses to the United States quickly while the approval of the marriage based green card petition for the foreign spouse is still pending. Unlike consular processing which can take 12-18 months, the K-3 visa process usually take anywhere from 4-6 months. K-3 visas are very useful tools to reunite couples. 

Once the K-3 spouse (non-immigrant status) is in the United States he or she can apply for adjustment of status to that of lawful permanent resident (immigrant status).

K-3 Visa couple

The K-3 Visa Checklist

The following are sample documents for a K-3 non-immigrant visa petition after the US Citizen has filed a Marriage Green card petition using Form 1-130 Petition for Alien Relative for his foreign spouse and has a receipt.

Please be aware that the law is constantly changing and any checklist must be adapted to meet the specific needs of each case.

This checklist is not the same for a K-1 visa petition (fiance visa to usa or  ) where the couple is engaged but not yet married.

 

  1. Form I-129F, Petition for Alien Fiancé(e)
  2. Form G-325A, Biographical information – completed and signed for US Citizen and one for foreign spouse
  3. Marriage certificate of USC spouse and K-3 applicant
  4. Divorce or annulment decrees or death certificates of earlier spouses of parties, if any
  5. Proof of Petitioner’s US Citizenship – U.S. birth certificate, U.S. passport, or naturalization certificate of US Citizen spouse
  6. Birth certificate of K-3 visa applicant, with certified translation if the original is not in English
  7. Birth certificates of children of the parties
  8. USCIS filing receipt for Form I-130 by USC petitioning spouse
  9. Passport-style pictures of the parties
  10. . Photos of the wedding
  11. . Communications between the spouses (e.g., letters, e-mails, instant messages, copies of phone records and greeting cards)
  12. . Documents showing joint assets between the parties
  13. . Documents showing receipt for gifts and remittances
  14. . Documents showing joint debt by the parties
  15. . Copies of joint income tax returns filed by the parties

Any document not originally in English must be accompanied by a certified English translation.

 

 

 

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Certificate of Translation

A birth certificate, marriage certificate or any document in a language other than English, submitted to USCIS or an immigration court, must be accompanied by a Certified English translation.

What is a certified translation?

A birth certificate, marriage certificate or any document in a language other than English, submitted to USCIS or an immigration court, must be accompanied by a Certified English translation, i.e. a copy or original of the document must be accompanied by two things;

  1. A translation into English (e.g. a birth certificate translation), and
  2. A Certificate of Translation which must be signed by the translator and notarized by a notary public.
Certified Translation
Certified English Translation - the translator may be any person who is fluent in English and the foreign language

While the translations may be done by certified translation services or certified translators, the translations may also be done by applicants or beneficiaries when they are competent in both English and the foreign language in which the document is expressed.

Sample Certificate of Translation

An example of the certificate of translation follows. The form for acknowledgment of the notary will vary by state. The example has a form for acknowledgement for a Florida notary public.

CERTIFICATE OF TRANSLATION

“I, [name of translator] after being duly sworn upon oath, declare that I am fluent in the English and [foreign e.g. Spanish] languages, and that the attached translation of [name of document e.g. birth certificate], related to [applicant’s or beneficiary’s full name], the original of which is in the [foreign] language, is a complete and correct translation from the [foreign] language to English to the best of my knowledge and ability.”

Signature of translator: __________________________________________

Name of translator (Print name) :

__________________________________________

Address of translator

__________________________________________

__________________________________________

Telephone number of translator

__________________________________________

 

SUBSCRIBED AND SWORN to before me on this ______ day of _________________, 20__,

STATE OF FLORIDA
COUNTY OF ________

Sworn to (or affirmed) and subscribed before me this _____ day of _____, 20___, by (name of person making statement).

(NOTARY SEAL) (Signature of Notary Public-State of Florida)
(Name of Notary Typed, Printed, or Stamped)

Personally Known ______ OR Produced Identification _______
Type of Identification Produced_______________________________________________

In closing, all documents filed with the USCIS or Immigration Court must be in English or accompanied by a certified English translation.

 

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Form I-130 checklist

A Happy Reunited Immigrant Couple

The following is a checklist for an I-130 Petition for Alien Relative for a US citizen or Lawful Permanent Resident sponsoring an immediate relative or family preference alien to get a US green card.

As each case is unique the list is for reference only. The checklist assumes a US citizen wanting to bring her foreign spouse to the United States.

Other family relationships will need different documents to get the I 130 approved.

  1. USCIS current I-130 Form, Petition for Alien Relative.
  2. Copy of the birth certificate for the US Citizen, (front and back), or a copy of ALL pages of the US Citizen’s passport. A copy of a naturalization certificate or certificate of citizenship issued by USCIS or the former Immigration and Naturalization Services are also acceptable evidence of US citizenship.
  3. A copy of the marriage certificate, if applicable. If the ceremony was abroad, a copy of any relevant document to show that the marriage was lawful in the foreign country.
  4. Signed and dated USCIS form G-325A filled out by the US Citizen signed and dated.
  5. One passport size photo (in the prescribed form) of the US Citizen with the full name of the US citizen on the back.
  6. Signed and dated USCIS form G-325A filled out by the foreign spouse.
  7. One passport size photo (in the prescribed form) of the foreign spouse with the full name of the foreign spouse on the back.
  8. Acceptable evidence of a bona fide marriage – documents showing comingling of funds (trust with money), life insurance with either spouse as beneficiary, joint ownership of property, affidavits* from third parties with personal knowledge of the marriage relationship, pictures of the wedding ceremony, marriage certificate, birth of certificate of any children born to the marriage, and shared liability for household expenses.
  9. A copy of an earlier spouse’s death certificate or divorce decree if either spouse was married before.
  10. A check for the required USCIS fee. A check is preferable to money order.
  11. If any document is not in English, the original document must be submitted together with an English translation and certificate of translation by the translator.

*Note: Requirements for the affidavit.

Each affidavit should contain;

  1. the full name and address of the person making the affidavit,
  2. date and place of birth of the person making the affidavit,
  3. his or her relationship to the petitioner of beneficiary, if any,
  4. full details explaining how the person acquired his or her knowledge of your marriage,
  5. details of what he or she knows about the marriage.

Use numbered paragraphs and head the document AFFIDAVIT.

The affidavit must be signed and date before a notary public.

 

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US Citizenship Requirements

There are two ways to become a US citizen:

1. Operation of law – This means no action need be taken. Examples include

(a) born in the US,

(b) born to US citizens abroad, or

(c) as an LPR child (under 18) living with a US Citizen parent in the US

2. Naturalization – This means taking action by completing an application for US citizenship (usually Form N-400), passing the naturalization interview, taking the oath of allegiance and receiving a certificate of citizenship.

There are two ways to become a US citizen:

1. Operation of law – US citizenship is automatic and no action need be taken to become a US citizen. Documentation of US citizenship on the other hand, is a different matter. Examples include

(a)   born in the US,

(b)   born to US citizens abroad, or

(c)    as an LPR child (under 18) living with a US Citizen parent in the US

2. Naturalization – This means taking action by completing an application for US citizenship (usually Form N-400), passing the naturalization interview, taking the oath of allegiance and receiving a certificate of naturalization.

 

US citizenship ceremony - applicants taking the oath of allegiance before becoming US Citizens

 

 

 

 

 

 

 

 

 

 

 

 

The general US citizenship requirements are as follows:

1. At least 18 years of age – You are at least 18 years of age when you apply. However if you are less than 18 you may be eligible for naturalization if you have a US citizen parent or have served honorably in the military during designated periods.

2. Lawfully Admitted for Permanent Residence – you must have been legally entitled to receive your green card when you received it. Just having a green card is not enough. Additionally you must not have abandoned or forfeited your immigration status by your conduct.

3. Residency requirements – You must satisfy the following 3 residency requirements

(i) Continuous residence for at least 5 years (3 years if married to a US citizen)

(ii) Physical Presence – you must have been “physically present” in the United States for at least half the time for which you must have continuous residence. There are exceptions for the physical presence requirement for aliens who are employees of the United States government or who are under contract with it.

(iii) Residency in Jurisdiction – To establish eligibility for naturalization, most applicants must file their application for naturalization with the “State” or Service District that has jurisdiction over their place of residence. In addition, most applicants must have continuously resided in the State or Service District for three months before filing the application.

4. Good Moral Character – Good moral character (GMC) is one of the most important basic requirements in naturalization. An applicant must possess good moral character during the 5-year statutory period before the application. Conduct that may prevent a finding of good moral character include habitual drunkenness, giving false testimony to get an immigration benefit if given under oath, membership of a communist party, some controlled substance violations and a conviction for certain aggravated felonies.

The courts have held that good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. The examining officer may consider any conduct or acts which offend the accepted moral standards of the community in which you live, even if you have never been arrested or convicted.

5. Support for the principles of the US Constitution – you must show that during the statutory period, you have been and still are a person “attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.”

6. English and Civics – you must pass a citizenship test to decide your ability to speak, read and write Basic English and your knowledge of United States history and government.

Selective Service Registration

Unless exempted, all men living in the United States (whether documented or undocumented) who are between the ages of 18  to 25 years must have registered for Selective Service. Though Selective Service registration is not a requirement for naturalization, a “knowing and willful failure to register” may result in denial of US citizenship because the US Citizenship and Immigration Services may find that  the applicant lacks good moral character. Furthermore INA Section 337(a)(5)(A) requires any applicant for naturalization to publicly declare his willingness to bear arms on behalf of the United States.

A naturalization applicant who failed to register for Selective Service, may however send an affidavit (a statement under oath) with his application stating that his failure to register was not willful.

Conclusion

There are many exceptions to these general rules. For example a US citizen parent may apply for naturalization on behalf of his or her child born and residing abroad (using form N-600K) when the child is less than 18 years. Because of these many exceptions the US citizenship requirements for each person (e.g. those who have served honorably in the US military) may be different.

You may be eligible for US citizenship and not know it or you may have obstacles from your past which, if not addressed, could bar you from getting US citizenship. It is important to consult an immigration attorney if you are thinking about making a US citizenship application.

I have a policy to strongly recommend that permanent residents become United States citizens as soon as they are eligible to avoid deportation and protect their legal rights in the land that they love and have chosen to make their home.

If you or a family member have questions and concerns about becoming a United States citizen or your citizenship status, please give my immigration law office a call at 888-747-1108. I would be happy to help.

 

Resources for US citizenship application and US citizenship test

Use the following links from the and the Catholic Legal Immigration Network CLINIC to help you learn more about United States citizenship requirements, how to apply for citizenship and prepare for the citizenship test.

1. Citizenship application Form N-400

2. US Citizenship application fee (N-400 fee)

3. Study Materials for the English Test (Video available)

4. Study Materials for the Civics Test (Video available)

5. Naturalization Requirements Information

6. Naturalization Self-test (English)

7. Naturalization Self-test (Languages other than English, e.g. Tagalog)

8. USCIS Guide to Naturalization (How to obtain US citizenship)

 

 

Naturalization Oath of Allegiance to the United States

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”

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Criminal background checks for immigration

Whether you are a U.S. citizen filing a petition for your fiancé, spouse or child, an alien applying for a green card by adjustment of status (I-485) or U.S. citizenship (N-400), it is very important to reply accurately to questions about criminal history. If you have a criminal history (e.g. DUI arrests), the best way to do this is to first get and review official criminal background reports about you.

Whether you are a U.S. citizen filing a petition for your fiancé, spouse or child, an alien applying for a green card by adjustment of status (I-485) or U.S. citizenship (N-400), it is very important to reply accurately to questions about criminal history. If you have a criminal history (e.g. DUI arrests), the best way to do this is to first get and check certified copies of your criminal background reports about you including arrest, court proceedings, sentencing and confinement in a correctional institution, if any.

Criminal background checks on any person may include reports from

  1. Federal Bureau of Investigation (FBI) national criminal background checks,
  2. State and local law enforcement, and
  3. Foreign countries – in the case of an alien.

You can do criminal background checks in the United States at the national and state and local (county) levels. If the applicant has lived in the United States he/she should ask for a national criminal background check from the Federal Bureau of Investigation and from the state(s) where he/she has lived.

The links for the FBI and State law enforcement are –

1. FBI Criminal background check 

2. State Identification Bureau Listing (State Law Enforcement)

From the list for State Identification Bureau Listing, simply google the name of the state agency followed by the words “criminal background check” e.g. if the applicant lived in Florida google “Florida Department of Law Enforcement criminal background check.” The state agency may also have a list of private fingerprinting service providers whose equipment and ways comply with state and FBI standards. The applicant may also contact the local police agency or local sheriff office where he/she lives and explain that he/she wants fingerprints taken for a criminal background check. Undocumented persons  should seek legal advice and use a private fingerprinting agency and not a local police agency to do fingerprinting for criminal background checks.

If the applicant had an arrest or conviction in the United States he/she should contact the local law enforcement agency in the county where the arrest took place or the court that heard the matter and ask about obtaining an official police or court records (showing disposition of the case). Specifically ask for certified copies of:

1. arrest record;

2. criminal complaint;

3. indictment;

4. sentencing records; and

5. any record of confinement if you served time in any correctional institution.

You should still ask for your records even if you ‘did not do it’, it was only a minor offense, the charges were dismissed, you received a pardon, an amnesty or you were found not guilty.

If an applicant lived abroad he/she might want to get a police certificate from that country. Police certificates are not available for some countries. To find out if police certificates are available for a country, check here.

If you have specific questions about immigration background checks or how you should reply to a given question about criminal history consult an immigration attorney or a criminal defense attorney who can work with an immigration attorney to help your case.

 

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