Immigration Criminal Justice Records

Immigration Laws Criminal Background Checks

There is no such thing as a criminal charge that is not serious. An applicant’s criminal history, even of incidents that happened many years ago is very relevant in immigration proceedings such as naturalization and adjustment of status. Oftentimes applicants ignore convictions or arrests because they happened long ago and they have served their sentences or paid their fines. Others ignore them because they did not consider the matter to be serious. This is a common mistake in immigration proceedings.

Criminal Records for ImmigrationIf you have ever been arrested, cited or detained by law enforcement, it is important that you do not give false or misleading information about your criminal history when making application for a visa or immigration benefit. This is so even if your records are sealed or a criminal defense attorney told you that he would “erase” your record for a fee.

Criminal convictions, arrests or even certain admissions under oath may be grounds of inadmissibility under criminal grounds of Section 212 of the Immigration and Nationality Act. Lying about your criminal history may be grounds of inadmissibility for misrepresentation or fraud.

If you have a criminal history it is important to preserve documentation of the events. In particular you should have certified copies of the following from the relevant agencies or courts:

  1. The Actual Arresting Officer’s report from the Arresting Agency,
  2. The charging documents from the Prosecutor’s Office,
  3. Court minutes or Transcripts of Hearings,
  4. The final court disposition of the case, and
  5. Proof of the completion of sentence, if any.

To obtain your police records contact the police department with jurisdiction over the city or county where you were arrested and ask for the police records department. Let them know that you would like to get your police record or arrest report for each incident.

To obtain court records contact the clerk of the court of the criminal division of the court where the matter was heard. Let the official know that you would like a copy of the court files. It is important that you let him or her know that you are interested in a certified copy of the court records for the case. When getting records for a case it is better to get as much as is available.

To obtain DA records contact the DA office that prosecuted the case. Let the official know that you would like a certified copy of the charging document.

 If the record is not available from the police or court or district attorney’s office, you should obtain a certified letter from the agency stating that the record is not available, has been destroyed or does not exist. You should also provide a sworn statement containing details of the event.

It would be very unfortunate to have a criminal conviction that has no immigration consequences yet get a denial and criminal charge for giving false material information on an immigration application. If you have concerns about the immigration consequences of your criminal history you should consult an immigration lawyer about your case before making an application.

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The Green Card by Marriage Interview: Are You Ready?

The green card marriage interview will have a significant impact on your life. This is your opportunity to personally let the immigration officer know about you and your marriage. It is also your opportunity to present additional supporting evidence to the immigration authorities.

Many applicants feel intimidated and are anxious because of negative experiences with authority figures, cultural differences with the immigration officer and because the green card marriage interview may deal with sensitive subjects. Many people have also heard about Stokes type interviews where the foreign spouse is separated from the US petitioner and each person is interviewed separately. For these reasons it helps to understanding the purpose of the interview, the US immigration officer’s role and your role.

green card marriagePurpose of the green card interview

The purpose of the green card marriage interview is for USCIS to gather and clarify all relevant information about your eligibility for lawful permanent residence and to evaluate your credibility. The purpose of the interview is not to deny your application but to make a well-informed decision. However each interview is different and each applicant is accessed on a case by case basis.

Time Constraints

Immigration Officers may interview as many as 20 persons per 8 hour day, which allows for as little time as 20 minutes deciding your case. Your interview time however may increase due to factors such as more time to draw out the facts about a complicated story and difficult issues that may arise during the course of the interview. It is therefore important to answer questions truthfully and to the best of your knowledge but not to give the officer more information that he or she requires.It is also important to have originals of required documents (marriage and birth certificates) and additional evidence well organized for easy presentation to the officer.

Green Card Marriage Interview Questions

There is no set list of questions that an immigration officer will ask. The official is charged with pursuing all relevant lines of questioning until he or she is certain that all pertinent information has been gathered in order to make a determination on your application or petition.

Structure of the marriage green card interview

Generally the green card marriage interview will follow a particular structure

1. Pre-interview preparation – this is where the officer reviews your file to learn about your background, immigration history and your claim for a green card. He or she will also review your file for completeness and for discrepancies and make notes about matters to be covered in the interview;

2. Introduction – greetings, explaining the role of the interview;


3. Oath and notice about your rights during the interview–
you will be placed under oath before giving testimony. You must promise, under the law, to tell the truth. In addition, if you have an interpreter, the interpreter must also be placed under oath.;


4. Verification of basic biographic information – The officer will
verify and update or correct if necessary any biographical information supplied with the application. He or she will also compare the information on your application with those on the original documents;


5. Testimony; The officer may
pursue all relevant lines of questioning until he or she is certain that all relevant information has been gathered to make a determination on your application or petition. The officer should also allow you to ask questions as appropriate and will accept additional documents in support of your application. The officer will determine if any additional documents are needed to establish your eligibility and inform you of the procedures to submitting them.


6. Conclusion. –
If your application is approved the officer will explain to you about the delivery of your Permanent Resident Card, Form I-551, and your rights and obligations as a permanent resident of the United States. The officer may also make a notation on your US visa that it is cancelled.

If your application is not being approved, the officer will explain to you the remaining steps in the process. Normally, this is simply that you will receive the Service’s decision in the mail, but depending on the circumstances, perhaps a more detailed explanation (e.g., preparation of a formal written decision which will be reviewed by a supervisor, initiation of removal proceedings, and your and obligations regarding renewal of the application before an immigration judge).

If you have questions about the marriage green card process and the help of an experienced immigration attorney contact us at Goodin Law P.A. for legal advice.

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10 years green card and immigration marriage fraud

As a Las Vegas immigration lawyer dealing with marriage immigration cases, it is true that love knows no borders. Many bi-national couples have long and happy marriages. But it is also true that not every foreign national marries a US citizen or permanent resident with the best of intentions.

The conditional green card versus the 10 year green card

If a marriage is less than two years old when a person is admitted as a permanent resident the Department of Homeland Security DHS will issue a 2 year conditional green card.  The foreign national will then have to timely file a joint petition Form I-751 together with required documents including evidence of a good faith marriage to stay in permanent resident status. The couple may be required to attend a 10 year green card interview.

But if the marriage is more than 2 years and the application for an immigrant visa is approved the DHS will issue a 10 year green card. No joint petition is required to remain permanently in the United States.

The fictional story that follows is based on real events.

Alexis a victim of immigration marriage fraud

Alexis a US born 35-year-old of Ukrainian descent had heard about immigration marriage fraud but did not pay much attention because it never affected him personally. In the summer of 2011 he went to Ukraine to see family and reconnect with his roots. There he met and married Oksana, a blue-eyed 22-year-old young student from Mukachevo. Oksana was different from the other young women he met. She seemed very humble and did not ask Alexis for much.

Shortly after their marriage Alexis returned to the United States to resume his employment. He wanted to file an immigration petition for Oksana immediately but Oksana encouraged him to wait until he could save up enough money from his job. In the meantime Alexis would wire money to Oksana every month to help with her living expenses and college tuition.

After several months Oksana became frustrated in his longing for Oksana and approached an immigration law firm because he did not understand the complicated paperwork to get Oksana to the United States. Alexis told the lawyer that he wanted Oksana to come to the United States as quickly as possible. The immigration lawyer explained the process to Alexis and asked to communicate with Oksana. For weeks it seemed as though Oksana was either unable to use her phone or the internet. Eventually the immigration lawyer spoke to her through a male interpreter who described himself as Oksana’s brother.

The lawyer was surprised to learn that Oksana was not happy that her husband had got a lawyer on the case. She told the lawyer that she was not in a rush to get to the United States as she was finishing up her degree. She said that it did not bother her that the process could take up to three years! She also said that she believed Alexis did not need to spend so much money on a lawyer. However Oksana reluctantly agreed to give the documents and information that the lawyer requested.

Green card fraud

Oksana was very slow in giving the information and documents requested by the lawyer. She was slow in answering emails and her phone was often out of service. She however was always able to contact Alex to get her money transfers. This dragged on for a few months. Furthermore, the case changed attorneys because the first attorney assigned to the case left the firm.

Fourteen months after the marriage Alexis eventually saved up enough money to make a trip to Ukraine for two weeks to see Oksana. It is on that trip that Oksana realized that she could not do without Alexis and longed to live with him in the United States.  But Alexis had heard rumors that Oksana was unfaithful. Oksana convinced him that the rumors were malicious and caused by a friend who was jealous of her marriage. On Alexis’ return to the United States the wheels were in motion. Alexis was ready to come to the United States. The USCIS approved her petition in 8 months and she attended her immigrant visa interview six weeks later.

The US consulate issued Oksana an IR1 immigrant visa because on the date of the interview her marriage to Alexis was a little over 2 years old. Oksana entered the United States at as a permanent resident and began living with Alexis. In two weeks Oksana disappeared.  Over her cellphone she told Alexis that she only married him to come to America and that now that she had her 10 year green card she did not need him anymore.

Conclusion

If you suspect that you could be a victim of immigration marriage fraud or you are a foreign national charged with immigration marriage fraud you need to understand your legal options.  Call me, Las Vegas immigration attorney Gary Goodin at 702-423-2721 for a consultation.

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The US Green Card – Your ticket to the American dream

The world’s favorite card

A US green card is the most desired card in the world. Hundreds of millions around the world dream of having a green card to begin a new and better life in the United States. The US green card (officially called Form I-551) is evidence of your permanent resident status in the United States.

 

Live permanently in the United States

Green card status gives you the right to live and work in the United States for life. With a green card you have the freedom to leave and return to the United States without a visa. With a green card you can start and grow a business in the richest single market in the world.

 

Many ways to get a US green card

Though most people get a green card through family or an employer there are other way to get a green card. US immigration provides several paths to a US green card:

1. Green Card through employer -Employment based green cards

2. Family Based Green cards –including green card via marriage

3. Green Card through investment (from $500,000 to $1,000,000)

4. Green Card through Refugee or Asylum status

5. Green card lottery

6. Green card through special humanitarian programs – Cuban Native, NACARA, VAWA, U visa etc.

 

Demand for green cards exceeds supply

Each method has its own eligibility requirements and application process. Generally there are numerical limitations on the number of green cards issued each year and the demand exceeds the supply. The immediate relative of US citizens are however exempt from numerical limitations.

 

Adjustment of status or consular processing?

If you are abroad you can get US permanent residency through processing at US consulate. But if you are inside the United States, you may do an adjustment of status application with United States Citizenship and Immigration Service so that you can get your green card without ever having to leave the United States. However to get the benefit of this easier and more convenient way to get your green card you must meet certain requirements.

 

Keeping your green card after you get it

Once you have received your US green card you should remember that there are certain conditions for keeping your green card. You must not abandon your residence by leaving the United States for more than a temporary visit abroad or engage in conduct which violates the conditions of your green card status. If you have a conditional green card you must file Form I-751 or I-829 within 90 days of when your two-year conditional green card expires or you will lose your permanent residency status.

 

Get US citizenship and a US passport

Once you have a green card you can file for United States citizenship after five years if you have completed certain residency requirements in the United States and meet other requirements. This period is shortened to three years if you are married to a US citizen, or four years if you received your permanent residency through asylum.

 

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Presumptive immigration marriage fraud

Presumptive immigration marriage fraud – from permanent resident by marriage to immigration petition for a new spouse in less than 5 years

When a permanent resident obtained a green card by marriage which later ends in divorce, an immigration petition for a new spouse cannot be approved if filed within 5 years of obtaining permanent residence unless the permanent resident can prove that the earlier marriage by which he obtained a green card was in good faith. But the standard of proof of the earlier marriage is raised beyond that required when the permanent resident was issued a green card by that marriage.

If the permanent resident by marriage files an immigration petition for a new spouse within 5 years of receiving permanent residence by law (The Marriage Fraud Amendments of 1986) the former marriage by which he obtained permanent resident is presumed to have been entered into for immigration purposes without the intent to live together as husband and wife.

In this type of special circumstances marriage fraud is presumed based upon the earlier marriage by which the permanent resident obtained a green card, not the current marriage. The presumption of fraud based on the earlier marriage arises even if there was no finding of marriage fraud and the permanent established that the earlier marriage was in good faith, passed the immigration marriage interview and the joint petition for removal of conditions upon resident (I-751) was approved by USCIS.

What is presumptive immigration marriage fraud?

The Bureau of Administrative Appeals defines immigration marriage fraud as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or “good faith”, to live together and which is designed solely to get around the immigrations laws. There is no requirement that the person be convicted of fraud. Presumptive immigration marriage fraud is a presumption of law applied to all cases where a permanent resident by marriage petitions for a new spouse in less than 5 years after obtaining permanent residence.

Presumptive fraud is about the earlier marriage

But with presumptive fraud a spousal petition for a new spouse within 5 years of obtaining permanent residence by marriage is enough for the adjudicator to presume that the first marriage was a fraud. The presumption however can be successfully challenged. The USCIS will issue a Notice of Intent to Deny giving the petitioner the opportunity to send evidence to show by clear and convincing evidence that the earlier marriage was in good faith. The rebuttal evidence is directed towards the earlier marriage.

A petition for a new spouse within less than 5 years alone is not unequivocal evidence of a sham marriage. Therefore the petitioner can give evidence that adequately explain the rapid sequences of events. A denied petition does not affect the permanent resident’s ability to re-file the petition for the new spouse after the 5 year period.

Evidence used to rebut presumptive marriage fraud

The evidence used to challenge a finding of presumptive marriage fraud is evidence to prove the good faith of the earlier marriage by which the permanent resident gained his status (not the current marriage to the new spouse). Some examples of the type of evidence that can be used to challenge a finding of presumptive marriage fraud are:

1.            Affidavit from Petitioner

2.            Affidavit from former spouse and former in-laws – don’t burn your bridges

3.            Affidavit from friends – who he knew the couple, how often they saw each other

4.            Affidavit from professionals – e.g. life insurance salesman, doctors that interacted with the couple and observed them during the marriage

5.            Greeting cards from family (dated) – showing family is aware of the marriage

6.            Birth Certificate of children born to the marriage

7.            Photographs of the couple together with family and friends (identified and dated)

8.            Financial statements in both names

9.            Joint Tax returns

10.          Statements in both names

11.          Divorce decree – showing property settlement and other terms of divorce (reason for termination of the marriage)

12.          Evidence showing the length of time the earlier couple lived together

Conclusion

There are lots of factors involved in successfully rebutting presumptive immigration marriage fraud. A lot depends upon the facts of the particular earlier marriage. When entering an immigration marriage it is important to have proper legal advice every step of the way. Even if you former marriage and present marriage were in good faith, your petition for your new spouse could be denied if you cannot successfully rebut the presumption that the earlier marriage was a fraud and do so using the correct legal standard.

Presumptive marriage fraud does not prevent the filing of an immigration petition for a new spouse but it makes it more difficult by requiring the permanent resident to prove the good faith of a former marriage using a higher standard. Presumptive marriage fraud does not apply to naturalized United States citizens or to permanent residence by marriage that has held permanent resident status for over 5 years. It also does not apply to a permanent resident whose marriage end by death of the US citizen or permanent resident through which permanent resident status was received.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@immigrationlasvegas.com. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

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Refiling a spousal immigration petition after a withdrawal

Fraudulent marriage for immigration purposes

The mere existence of a valid marriage certificate showing a lawful union between a United States citizen or permanent resident and a foreign national does not create a good faith marriage for immigration purposes. Whether a marriage is valid for immigration purposes (not a sham marriage) depends on the intent of the parties at the time of the marriage. But in determining whether a marriage is in good faith, the conduct of the parties after the marriage is relevant as to their intent at the time of marriage; evidence to prove intent may take many forms, including, but not limited to,

  1. proof that the beneficiary has been listed as the petitioner’s spouse on insurance policies,
  2. property leases,
  3. income tax forms,
  4. bank accounts; and
  5. testimony or other evidence of courtship, wedding ceremony, shared residence and experiences.

Matter of Laureano, 19 I&N Dec. 1 (BIA 1993).

If the evidence shows that the main intent at the time of the marriage was to get around the immigration rules by gaining immediate relative or preference status then this is marriage fraud for immigration purposes.

Withdrawal with admissions of fraud

The withdrawal of an immigration petition by itself does not show fraud. But when a marriage immigration petition is withdrawn based on an admission on the record (e.g. from an interview) that the marriage was entered into solely to get around the immigration laws (e.g. to help a friend get a green card) special rules apply to deter and punish fraud. Under Section 204(c) of the Immigration and Nationality Act the beneficiary may be perpetually barred from immigration to the United States based upon marriage if he attempted to or conspired to enter the marriage for the primary purpose of circumventing the immigration laws.

So a petition involving the same beneficiary and a different spouse may not be approved. But the Bureau of Immigration Appeals has ruled that a new petition involving the same petitioner and beneficiary may be approved under certain conditions.  The petitioner and beneficiary must include:

  1. an explanation of the earlier withdrawal, and
  2. evidence that the relationship is in good faith and not for immigration purposes.

Matter of Laureano, 19 I&N Dec. 1 (BIA 1993).

Heavy burden when re-filing a withdrawn spousal petition

A petitioner who withdraws a petition with admissions of a fraudulent marriage (e.g. the marriage was a favor to a friend, and we only lived together to make it look real) and then re-files a petition for the same beneficiary has a heavy burden of proof to get approval of a visa petition for the beneficiary. Without an explanation letter and without evidence that show the existence of a bona fide relationship the petition is likely to be denied.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@goodinlaw.net. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

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Can you afford not to hire an immigration attorney for your case?

Do I need an immigration lawyer?

Some persons dealing with an immigration matter such as applying for a spouse to come to the United States, may ask, ‘Do I really need a lawyer?’, or ‘Can’t I just handle the paperwork myself?’ Unfortunately, the denial rate for applications or petitions filed without an attorney is higher than many realize. The cost in time and money to fix immigration problems that could be avoided is astronomical.

Let me give you an example. Paul is a US citizen from the Philippines. On a trip to the Philippines he met a beautiful woman and they got married. Paul consults a lawyer who offers free consultations only to find out that the lawyer charged $2500 for the case. After recovering from the shock Paul goes to an immigration consultant to fill out papers for only $500. Paul expected to see his wife in less than a year. But unknown to him the divorce from his former wife was not final. His I-130 petition was rejected. Paul  spent thousands of dollars to return to the Philippines to complete his divorce. He also has to spend some more money to remarry the woman he thought was his wife. If Paul had consulted an immigration attorney from the beginning he would be thousands of dollars richer and reunited with his wife a lot sooner. He would have avoided strain on his relationship from a very long separation. The time they could have spent together is gone forever and money cannot bring it back.

The odds are not in favor of a person filing on his own or using a notario because immigration laws are complex and constantly changing and there are many factors that are not widely known that can affect eligibility and lead to a denial. Minor errors that seem trivial to most people can cause the denial of a visa. Other denial factors include a case without legally sufficient evidence, misrepresentations, a failure to register a change of address, in absentia orders of removal which the applicant does not know about and security grounds. And that is just the start!

Immigration laws are nearly as complex as the tax code

Immigration laws are so complex that one United States District Judge in describing the complexity of immigration laws said, “The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the Immigration and Nationality Act (the “INA”) resembles “King Mino’s labyrinth in ancient Crete,” [and] and is “second only to the Internal Revenue Code in complexity.” Chan v. Reno, 1997 U.S. Dist. LEXIS 3016 *[5] (S.D.N.Y. Mar. 14, 1997).

How an immigration attorney can make your life easier?

For you to get your immigration case approved a thorough understanding of the immigration laws behind the forms is critical. Your case must also be supported by legally required and persuasive evidence to prove eligibility to adjudicators. Additionally it must address any grounds for removal. In fact some foreign national who make applications  (e.g. for asylum, deferred action or adjustment of status) without competent legal advice may be at risk of deportation without knowing it.

A competent immigration lawyer understands that getting your application approved requires an in-depth understanding of your specific facts to find the right legal course of action for you under the immigration rules. The immigration attorney will help you determining the potential risks, and legal issues that arise from your actions. The best ones will also help you prepare for critical immigration interviews at US consulates, ports of entry and at the USCIS.

Though no ethical immigration attorney can guarantee results, a licensed immigration attorney who is a member of the American Immigration Lawyer’s Association will use his or her best efforts to help you avoid denial and delays and get your US visa, green card or US citizenship case approved.

If you run into problems with an immigration or visa application, a form filling service cannot represent you before the USCIS, the National Visa Center or the US consulate. In short, a form-filler cannot contact any government agency on your behalf; only a licensed attorney can do this.

Conclusion

When your future and your family’s future in the United States is on the line, this is not a time for pinching pennies. A cheap attorney may not spend much time on your case because attorneys bill based upon an estimate of the time it will take to complete the case. An adjustment of status case for $750.00, may mean that the attorney will spend only three hours on your case and will not  give it the attention it deserves.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@visalawdc.com. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

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The unlawful presence bar to re-admission into the US

Unlawful presence

Unlawful presence is often a problem for certain persons (e.g. those who entered without inspection or entered on a C1, C1/D or D visa) who are prevented by law from adjusting or changing status in the US and who the law requires to leave the US to apply for a visa at a US consulate. It is also a problem for some persons who overstayed in the United States and later seek a visa to return to the United States.

Unlawful presence is a bar to re-admission after the person leaves the United States and seeks a visa or permission to renter the United States. It is especially a problem to the immediate relatives of US citizens who cannot adjust status but must leave the United States and seek an unlawful presence waiver abroad before they can be issued an immigrant visa. The wait times to get an unlawful presence waiver approved can take many months or more than 1 year during which time the foreign nationals must stay outside the United States and be separated from their immediate family in the United States. Unlawful presence is not a problem for a B visa holder who marries a US citizen, does not leave the United States and seeks adjustment.

What is unlawful presence?

Under the law a foreign national is unlawfully present if the person over-stays an authorized period of stay, or is present without being admitted or paroled. INA 212 (a) (9) (B) (ii).  Basically the person has no permission from the immigration authorities to be in the US or stay in the US whether it is that the end date on an I-94 has passed or the person has violated the terms of a visa such as a F-1 student who is no longer enrolled in school or a J-1 who is no longer taking part in an exchange program. In the case of a person in F-1 or J-1 status however he or she does not begin to accumulate unlawful presence until an immigration judge or immigration officer finds lawful presence.

The time for which a person is unlawfully present is legally important.

3-year and 10-year bars to readmission

Aliens who accumulate unlawful presence may be subject to a 3-year or 10 –year bar depending on the period of their unlawful presence.

180 days but less than 1 year

If an alien is unlawfully present for more than 180 days but less than one year and voluntarily departs before the start of removal proceedings such a person is barred from readmission into the United States for 3 years. Note that the bar is triggered after a voluntary departure even if the alien is granted advance parole.

More than 1 year

If the alien is unlawfully present for a year or more, then departs or is removed (deported), he or she is barred from re-admission for 10 years.

For the purpose of the 3-year or 10 year bar unlawful presence is not counted in total meaning, a person who over-stays for 3 months, leaves, re-enter and over-stays again for 4 months for a total time of more than 180 days is not subject to the 3-year bar. But if the same person over-stayed by 7 months on the second occasion, he or she would be subject to the 3-year bar.

Statutory exemptions

The law exempts certain period from counting towards unlawful presence.  The time during which a person is a child under the age of 18, or a bona fide application asylum is pending (unless the applicant works without authorization), under INA Section 301 family unity protection or a battered spouse or child who can prove a real connection between unlawful presence and abuse is exempt and no unlawful presence accumulates while these conditions apply.

Tolling (or suspension of) unlawful presence for good cause

The law tolls or suspends unlawful presence for no more than 120 days under certain conditions. Unlawful presence is tolled or suspended for a person who is lawfully admitted or parole into the United States, and who files a proper application for an extension of stay or change of status, and who was not employed before the application or while the application is pending.

Persons who file a proper application for adjustment of status are not subject to the 120 limitation on tolling but have the unlawful presence suspended while their application is pending.

Conclusion

The unlawful presence bar is just one more reason why foreign nationals should periodically consult an immigration attorney for advice. The cost of not knowing is very expensive. A person who is subject to the unlawful presence bar may seek a discretionary waiver. Waivers and the notice of intent to change the waiver regulations for aliens with qualifying United States citizen relatives will be the subject of another post.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@goodinlaw.net. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

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The big mistake of lying to immigration to get a visa or green card

Lying to Immigration

Under Section 212 (a)(6)(C)(i) of the Immigration and Nationality Act , a foreign national is inadmissible to the United States if he or she willfully or fraudulently misrepresents a material fact to a consular officer or DHS official (e.g. in answer to an immigration interview question) in attempting to, or in obtaining a visa, or documentation, admission into the United States or other benefit under the Immigration and Nationality Act.

Visa or Immigration Fraud

A foreign national makes a fraudulent statement when he makes a false representation of a material fact with knowledge that the statement is false and with the “intent to deceive” a consular or immigration officer. Fraud also requires that the immigration or consular officer believed the misrepresentation and acted upon it. See Matter of G, 7 I & N 161, 1956.

Material Misrepresentation

Material misrepresentation on the other hand merely requires a willful misrepresentation. A statement is material if the U.S. official might have found the foreign national inadmissible if the official knew the truth. Unlike fraud, misrepresentation does not need a finding of “intent to deceive” the U.S. official or that the official believed or acted upon the misrepresentation. See Matter of S and B-C, 9 I & N 436, 448-449 (A.G. 1961) and Matter of Kai Hing Hui, 15 I & N 288 (1975).  Therefore a person may be found to be inadmissible under INA 212 (a)(6)(C) (i) even though his conduct does not rise to a finding of fraud.

Penalty

A finding of either fraud or misrepresentation makes an alien inadmissible under INA 212 (a)(6)(C) (i). Most cases involving inadmissibility under this ground involve misrepresentation and not fraud because fraud is often more difficult to prove. The penalty for fraud or material misrepresentation is lifetime ban from the United States unless the foreign national can get a hardship waiver. Additionally a foreign national who makes fraudulent statements or use fraudulent documents (e.g. using a passport and visa issued to a family member) to get admission into the United States may be subject to criminal prosecution and imprisonment. The foreign national may also be subject to a civil document fraud order by an administrative law judge for making or using false documents, or using documents issued to other persons. A foreign national using fraud or misrepresentation to enter or seek unlawful entry into the United States may be fined or imprisoned or fined and imprisoned under 8 U.S.C. 1325(a).

Immigration Fraud and Misrepresentation

Misrepresentation defined

A misrepresentation is a statement or assertion which does not match the facts. A misrepresentation can be oral, in written application or in submitting evidence which has false information (e.g. presenting false immigration documents to border patrol to gain admission into the United States). Misrepresentation requires some affirmative action on the part of the foreign national. Silence or a failure to volunteer information does not necessarily constitute a misrepresentation.

A misrepresentation may also be found where a foreign national conduct is inconsistent with representation made at the time of a visa application or admission (e.g. a person admitted in B2 status who applies for adjustment of status within 3 weeks of admission as a tourist)

For an alien to be inadmissible under the Immigration and Nationality Act on the grounds of misrepresentation he must have

  1. Made a misrepresentation
  2. The misrepresentation must have been willful
  3. The fact misrepresented must have been material – the foreign national might have been found inadmissible if the truth facts were known to the U.S. official, and
  4. The alien used fraud or misrepresentation  in attempting to, or in obtaining a visa, or documentation, admission into the United States or other benefit under the Immigration and Nationality Act.

Misrepresentation by an attorney or other agent – The “It was not me” defense

If foreign national can be charged with a misrepresentation even if an attorney or (e.g. a notario) made the misrepresentation in a visa or immigration application., provided that the foreign national was aware of the action. Oral statements made on behalf of the applicant similarly do not shield him or her from misrepresentation, if he or she was aware of the misrepresentation.

Timely retraction and hardship waivers

A timely retraction of a fraudulent or willful misrepresentation is a defense to this ground of inadmissibility if the retraction is voluntary and without delay.

A narrow waiver may also be available from the Attorney General under INA 212 (i) to an immigrant who is the spouse, son or daughter of United States Citizens or a lawful permanent resident, if the applicant can prove that the refusal of admission to the United States would result in extreme hardship to the spouse or parent.

In the case of a VAWA self-petitioner charged with inadmissibility under INA 212 (a)(6)(C),  the waiver provision has broader. The self-petitioner must present evidence to prove that refusal of admission to the United States would cause extreme hardship to him or her personally, or the his or her United States citizen or lawful permanent resident parent or child. One of the most important thing to know about hardship waivers is that they are discretionary and are not obtainable as a matter of right.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@goodinlaw.net. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

 

 

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Bona Fide Marriage Documents

A legal marriage or a marriage on paper alone is not sufficient basis to obtain a green card through marriage. There are several ways to prove a bona fide marriage for US immigration purposes. In addition to a marriage certificate, the following documents are examples of what a petitioner or an immigrant spouse can offer as proof of a bona fide marriage. As each couple is unique the following is not a substitute for legal advice based on a couple’s individual circumstances (prior petitions, pregnancy, age difference, prior removal orders, date of wedding, manner and date of entry into the United States etc).

Documentary proof of a bona fide marriage may include but is not limited to the following:

  1.  Wedding pictures – showing the couple together and with family and friends. Wedding invitations may also be used.
  2.  Invitation and pictures for the wedding shower, if any.
  3.  Pictures of the couple together and with family and friends (holidays, vacation, in hospital etc.). Chose picture that show proper body language between the couple and from family and friends.
  4.  Birth certificate of each child born to the marriage. A child is strong, irrefutable evidence of a shared live. Pictures of the couple with their children (births, birthdays, baptism, or other traditional celebrations )
  5.  Personal statement or self statement of bona fide marriage, in which the petitioner describe, in great detail, how they met, why they got married, who proposed marriage, and the feelings that they had or still have towards each other and why.
  6.  Bona fide marriage affidavits (statements signed before a notary public) from at least two people with personal knowledge of the marriage and who can give details of the relationship between the immigrant spouse and the U.S. citizen or Lawful Permanent Resident petitioner.
  7.  Letters received from spouse while dating, apart, or during any other stage of the relationship.
  8.  Letters, cards and invitations to the couple from family and friends
  9.  A rental agreement for house or apartment with the names of the couple on it, or a letter from the building manager or owner proving that the couple occupies the premises.
  10.  Tax returns that show taxes filed jointly.
  11.  Papers with the names of both immigrant and spouse that show joint ownership of a car, a house, furniture, or something else together.
  12.  Insurance papers (health, auto, life and property) – that are either joint insurance papers or that show coverage of each other by insurance plan.
  13.  Joint Utility Bills for a marital home, such as cable TV, internet, electricity, water, gas, cell phone, or others that show both names on it.
  14.  For women, a government issued identification card that shows the use of your spouse’s last name could be persuasive but is not required.
  15.  Joint bank statements – as with having a child, having shared bank accounts is strong, evidence of a bona fide marriage because it indicates trust between the couple.
  16.  Any other documents that show trust, a shared life and shared burden of living.

If you have any questions please consult with a local immigration attorney. You may also email me at via the contact form on this website. Please subscribe to this blog or the RSS feed so you can see when new articles are posted.

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