Refiling a spousal immigration petition after a withdrawal

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.

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 But when a marriage immigration petition is withdrawn based on an admission on the record (e.g. from an interview) that the marriage was entered into solely to get around the immigration laws (e.g. to help a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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Polygamy and immigration visas

Under the current law (Section 212 (a)(10)(10) of the Immigration and Nationality Act) a foreign national must actually intend to practice polygamy in the United States to be ineligible for an immigrant visa. The current law does not prevent a polygamist or someone who practiced polygamy in the past or expresses a belief in polygamy from being eligible for an immigrant visa. But aliens coming to the United States to practice polygamy are barred.

Many traditional cultures including those in Yemen, Kenya, West Africa, South Africa and some parts of Asia engage in the practice known as polygamy which is an historical custom or religious practice of having more than one wife or husband at the same time. Though bigamy and polygamy are often confused bigamy is distinguishable from polygamy in that bigamy is a criminal act of marrying while the spouse of an earlier marriage is still alive and the former marriage is still in force. Bigamy is usually accompanied by a willful failure to inform the other spouse or the authorities. In immigration law the term bigamy and polygamy are distinct.

Before the Immigration Act of 1990 came into force, immigration law prevented foreign nationals from immigrating to the United States if the foreign nationals were polygamists, practiced polygamy or advocated the practice of polygamy [1].

Polygamy

Under the current law (Section 212 (a)(10)(10) of the Immigration and Nationality Act)  a foreign national must actually intend to practice polygamy in the United States to be ineligible for an immigrant visa. The current law does not prevent a polygamist or someone who practiced polygamy in the past or expresses a belief in polygamy from being eligible for an immigrant visa. But aliens coming to the United States to practice polygamy are barred.

Even though a polygamous marriage is not recognized for issuance of an immigrant visa, the first that marriage that has not ended in divorce is not considered a polygamous marriage. For example if Poly Manner marriages wives #1, #2 and #3 in that order and remained married to them at the same time, the marriage to wife #1 is not considered a polygamous marriage and may be used to support an immigration petition.

A complication may arise however in obtaining an immigrant visa if a person is asked questions about multiple wives and admits to purposefully marrying more than one wife at the same time based on historical custom or religious practice [2]. Such a person may be inadmissible under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act for admitting bigamy, a crime of moral turpitude [3] or for admitting acts which constitute the essential elements of bigamy.

But having more than one wife or husband without the benefit of divorce (e.g. the other spouse is believed to be dead, or her/his whereabouts are unknown) does not necessarily constitute a criminal offense [4] nor make a person ineligible for an immigrant visa.

[1] H.R. 10384, 64th Cong.

[2] See, Matter of G – 6 I & N Dec. 9 (BIA 1953)

[3] Braun v. INS, 992 F.2d 1016, 1017 (9th Cir. 1993)

[4] Example, Fla. Stat. §§ 826.01, 826.02 (2012)

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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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How to Register a Change of Address for Foreign Nationals

With limited exception non-US Citizens including lawful permanent residents (green card holders) must notify the Department of Homeland Security of their change of address within 10 days of moving. This requirement has been more enforced since September 11, 2001. The failure to register a change of address is punishable by a fine, imprisonment or removal from the United States.

USCIS Change of Address

With limited exception non-US Citizens including lawful permanent residents (green card holders) must let the Department of Homeland Security know of their change of address within 10 days of moving. This need has been more enforced since September 11, 2001. The failure to register a change of address is punishable by a fine, imprisonment or removal from the United States.

Change of Address

 

 AR-11/AR-11SR

  • The AR-11 form is a general change of address form that changes your address within the master database of USCIS an agency of the Department of Homeland Security. You can change your address manually using a printed Form AR-11 or you can do it online using the electronic AR-11. However completing this legal requirements and submitting the necessary AR-11 forms does not update an address on any applications or petitions pending before the U.S. Citizenship and Immigration Services (USCIS).
  • Individuals affected by special registration must complete AR-11SR, Alien’s Change of Address Card. Form AR-11 SR can only be mailed and cannot be filed online.

 Application or petition pending before USCIS

If there is an application or petition pending for you before the USCIS, in addition to filing form AR-11, you must let the USCIS know of your change of address according to the instructions contained on the Notice of Action form. You should give them a copy of your receipt notice, your USCIS A#, your old address and your new address.

Appeal Pending before an Immigration Judge (IJ)

In addition to filling Form AR-11 with USCIS, if you have a case pending with before an Immigration Court, you must let the Immigration Court know within 5 working days of your move by completing Form EOIR 33/IJ for the court in your particular state. Form EOIR-33/IJ is available on the Department of Justice website. Giving notice to the court Form EOIR-33/IJ is not the same as giving notice to the Department of Homeland Security, DHS. The foreign nation with a pending case before an immigration court should also give separate notice to the DHS using form AR-11. 

Appeal Pending before the Board of Immigration Appeals (BIA)

If you there is an appeal pending for you with the Board of Immigration Appeals (BIA), in addition to filing Form AR-11 with USCIS, you must let  the BIA know within 5 working days of your move by completing Form EOIR 33/BIA. You cannot let the BIA know of a change of address electronically. Form EOIR 33/BIA is available on the Department of Justice website. Giving notice to the BIA on Form EOIR-33/BIA is not the same as giving notice to the Department of Homeland Security, DHS. The foreign nation with a pending case before the BIA should also give separate notice to the DHS using form AR-11.

 If you have any questions about change of address or a failure to register change of address (an immigration violation) please consult an immigration attorney of your choice.

 

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US Immigration and same sex or transsexual marriages

It is the federal definition of marriage under The Defense of Marriage Act (DOMA), that determines whether a same sex or transsexual marriage is valid for immigration purposes, not state law.
Any relative petition (I-130 petition for alien relative, I-129F Petition for Alien Fiancé (e)) that is based on same sex marriage will most likely be denied. Still there are several instances where same sex relationships could be potentially beneficial in an immigration context.

Marriage Immigration
Immigration through Marriage

It is the federal definition of marriage under The Defense of Marriage Act (DOMA), that determines whether a same sex or transsexual marriage is valid for immigration purposes, not state law.

Section 3 of DOMA, a federal statute, explicitly defines ‘marriage’ and ‘spouse’ as follows;

“ . . . [T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Furthermore under the same section of DOMA, the US Congress mandated that rulings, regulations and interpretation of administrative bureaus and agencies of the United States (e.g. the Bureau Citizenship and Immigration Services or USCIS) must be in accordance with the definition of ‘marriage’ and ‘spouse’ above as a union between one man and one woman.

Validity of same sex marriages for immigration purposes

For this reason any relative petition (I-130 petition for alien relative, I-129F Petition for Alien Fiancé (e)) that is based on same sex marriage will most likely be denied or put on hold pending final guidance relating to distinct legal issues involving the Defense of Marriage Act.

The Defense of Marriage Act has been criticized as unconstitutional on the grounds that it is harmful discrimination against same sex couples that is unreasonable and devoid of a substantial relationship to an important governmental interest. Additionally, the Department of Justice has refused to defend DOMA in litigation before the Second Circuit Court of Appeals because the President and the Department of Justice consider Section 3 of DOMA to be unconstitutional.

So, pending either Congressional repeal of DOMA or a Supreme Court decision declaring the Act as unconstitutional, the federal definition of marriage, as a union of one man and one woman, will be enforced.

There are however several instances where same sex relationships could be potentially beneficial in an immigration context. This will be the subject of a future article.

Validity of transsexual marriages for immigration purposes

Transsexual marriages are marriages between a post-operative transsexual and a person of the opposite sex. Under federal law a transsexual marriage may be valid for immigration purposes if it is considered by the State in which it was performed as one between two individuals of the opposite sex. The petitioner must show by a preponderance of the evidence that;

  1. One of the claimed spouses has, in fact, undergone sex reassignment surgery; AND
  2. That person has taken whatever legal steps exist and may be required to have the legal change of sex recognized for purposes of marriage under the law of the place of marriage; AND
  3.  The marriage is recognized under the law of the jurisdiction where it occurred as a legally valid heterosexual marriage.

For an I-129F petition for an Alien Fiancé (e) the petitioner must show by a preponderance of the evidence that;

  1. One of the claimed spouses has legally changed sex, AND
  2. The proposed marriage will be recognized under the law of the jurisdiction where it will occur as a legally valid heterosexual marriage.

 If the State (or foreign country) recognizes the change in sex of the post-operative transsexual and the transsexual marriage is considered valid where it occurred (or will occur), then the USCIS will recognize it as valid for immigration purposes. Matter of Lovo-Lara, 23 I&N Dec. 746 (BIA 2005).

If you have any questions concerning the immigration benefits that can be derived from a same sex or transsexual marriage or relationship, please consult an immigration attorney of your choice.

Attorney Gary Goodin, for Immigration Navigator ™

Copyright © 2011, the Immigration Navigator

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