Presumptive immigration marriage fraud

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.

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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Green card for brothers and sisters of U.S. citizens

The visa category for siblings of adult U.S. citizens (the fourth preference category) has a notoriously long backlog. Currently it takes at least 11 years before a visa number becomes available for the sibling of a U.S. citizen. Petitions for fourth preference category for Mexico have a jaw dropping 20 year backlog!

Very often a U.S. citizen or a green card holder may ask about how to get a green card for a brother or sister (a sibling). At other times a foreign national may ask ‘I have a green card brother living in the United States, can he sponsor me?’ Oftentimes they may not realize that even though they consider a person a brother or sister by custom or even by law in their home country, such a person may not qualify as a sibling for immigration purposes. The following article is about evidential requirements to prove the sibling relationship to USCIS when filing Form I-130.

Who may file for a brother or sister?      

Only a U.S. citizen who is 21 years of age or older has standing to file an immigration petition for a brother or sister for classification as a family preference immigrant under section 203(a) (4) of the Immigration and Nationality Act. A green card holder must first make a successful application for naturalization (using Form N-400) and be over 21 to file a petition for a sibling.

Who is a sibling for immigration purposes?

The U.S. citizen petitioner must prove that he or she and the beneficiary (the claimed sibling);
1. Are children of a common parent, or
2. Once were children of a common parent.

The common parent relationship must be within the meaning of INA Section 101(b) (1) & (2). The parent-child relationship (and hence the sibling relationship) under this section can be created in multiple ways. A child born to a married woman is as assumed in law to be the child of the mother and the husband even if the husband is not the biological father. A parent can also be created by legitimation, adoption or by a step relationship.

Even though two persons are children of a common parent or once were children of a common parent his alone does not mean they are siblings for immigration purposes.
Proof of the sibling relationship in the case of step-siblings where the step-parent child relationship dissolves upon divorce must involve proving the relationship between the parent and the petitioner as well as that between the beneficiary and parent before the beneficiary reached 18 years.

Some examples where the sibling relationship does not qualify

  1. A person who is or was over 18 years at the time of the marriage of a parent does not have a step-relationship with the spouse of his parent for immigration purposes. For immigration purposes, this person does not have a sibling relationship with the children of the spouse of his parent.
  2. An illegitimate child of a father who did not develop a parent-child relationship with the common father before age 21 is not a sibling for immigration purposes.
  3. An adopted child may not petition for his or her natural sibling, because their common natural parent no longer has the status of parent of the adopted child for immigration purposes.
  4. Additionally an adopted child who was adopted after age 16 does not create a sibling relationship for immigration purposes.


Evidence for an immigration petition for a brother or sister

In addition to evidence of United States citizenship (and age) the US citizen petitioner must give evidence of the claimed sibling relationship. The primary evidence to support the sibling relationship will depend on how the relationship arose with the common parent. For a list of primary evidence please see the sibling relationship chart below.

Sibling relationship chart for immigration purposes

If either sibling had a name change as a result of marriage a copy of a marriage certificate and divorce decree will also be needed to prove the sibling relationship.

Conclusion

The visa group for siblings of adult U.S. citizens (the fourth preference category) has a notoriously long backlog. Currently it takes at least 11 years before a visa number becomes available for the sibling of a U.S. citizen. Petitions for fourth preference category for Mexico have a jaw dropping 20 year backlog!

It may be more expedient for petitioners to start a series of immediate relative petitions or an immediate relative petition followed by a second category petition (F2A) to bring their siblings to the United States. For example, an adult U.S. citizen may petition for a mother as an immediate relative and the mother may then petition for the sibling of the U.S. citizen.

If you want to bring a sister or brother to the United States or need help with any family based green cards please give my immigration law firm a call at 888-747-1108 to get your family members to the United States in the shortest time.

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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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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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K1 Visa Process – For K1 Visa Applicants

Once the USCIS approves the k1 visa petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate.

A k-1 visa is a single entry visa that permits admission of the fiancé (e) of a U.S. citizen, as a non-immigrant for 90 days to marry that U.S. Citizen and apply for adjustment of status (a green card).  The minor unmarried children of the k1 beneficiary who go with or follow to join her are typically granted K2 visa status.

Wedding Bands

 

Approved Petition

Your K-1 process begins when your U.S. Citizen  fiancé(e) files Form I-129F on your behalf with the United States Citizenship and Immigration Service (USCIS) district office responsible for where he or she lives or intends to live (if U.S. citizen is abroad).

Notice of Action

Once your fiancé (e) has received a notice of action you should begin assembling the relevant documents to support your application as some documents may take much time to get.

Documentary Preparation

You should assemble the following documents in support of your application as some may take much time to get.

  1. Passport(s) valid for travel to the United States – for you and any dependent children accompanying or following to join you.
  2. Birth Certificate(s) – Obtain the original, certified copy of the birth record, or secondary evidence for each family member (yourself and all minor unmarried children) even if the children are not immigrating with you.
  3. Evidence of the end of earlier marriages – final divorce decree, annulment or death certificate.
  4. Police Certificates for each applicant aged 16 year and over. Obtain police certificates from the police authority where you live or any place where you have lived for 6 months since you have reached 16 years old.
  5. Proof of relationship to the petitioner – gather your letters, dated photographs showing you together as a couple, affidavits from people with person knowledge of the relationship, e-mails, telephone bills, documentation of wedding plans and invitations. Airline tickets, visa stamps and receipt for the engagement ring may also be used

You should give accompanying certified English translations of all documents not in English, or in the official language of the country in which application for a visa is made. The translation must include a statement signed by the translator that states that the:

(i)                 Translation is correct, and

(ii)               Translator is competent to translate.

Packet 3

Once the USCIS approves the petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate. In Packet 3 should find:

  • K1 Visa Checklist Form IV-15
  • Form DS-230 Part I (Biographic Data) – You must complete and return this form immediately for the Consulate to process your case. Each person applying for a visa must complete biographic data Form DS-230- Part I, regardless of age. You may photocopy the form you received insufficient copies for each family member.
  • Form DS-156 in duplicate (non-immigrant visa application). If your unmarried children under 21 are accompanying you, two copies of Each Child must complete Form DS-156. Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-156K in duplicate (Non-immigrant Fiancé (e) Visa Application). Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-157 in duplicate (Supplemental Non-Immigrant Visa Application) – only required for men aged 16-45
  • Information sheet DS-2000 (Lists evidence which you or your fiancé (e) may present to meet the public charge provision of the law). Your fiancé (e) may file Form I-134 with supporting documentation.
  • Sometimes the Consulate will send information about scheduling a Medical Examination at this time.

Complete and send back the following forms to the Consulate:

  • Form DS-230-I (Part I only) for each person applying for a visa, regardless of age
  • Leave unsigned Forms DS-156
  • Leave unsigned Forms DS-156K
  • Form DS-157 (if applicable)
  • Form IV-15 -if required documents are already prepared.

If not already done so, assemble the relevant documents required in support of your application, and mark the documents off on Form IV-15 as you collect them. Do not send these documents to the Consulate.

Sign and date Form IV-15 and forward to the Consulate.

Packet 4

Upon receipt of the above documents, the Consulate will continue any extra processing and tell you about the scheduling of the medical interview and the appointment for the formal visa interview.

Schedule and have the Medical Examination. Arrange for a medical examination with one of the physicians listed on the attached visa instruction. You are responsible for the cost of the examination. A medical examination is also required for each child who will go with you.

Photographs – take Two (2) 2 x 2 Photographs for each applicant according to the specifications on the visa instruction sheet.

Attend scheduled interview with all your unmarried children under 21. Bring supporting documents such as evidence of your relationship to your U.S. citizen fiancé (e), two photographs for each applicant, birth certificates and final divorce decree if any to the k1 visa interview.

If approved, the Consulate may need you to pick up the passport with the visa from the Consulate later.

Sealed Packet – Do Not Open

Consular Officer will give you your passport(s) containing the K-1 visa (K-2) and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.

K1 Visa Validity

Do not finish arrangements for travel to the United States, dispose of properties, or quit your job until the consulate delivers the passport(s) with the k 1/k2 visas to you. A k1 visa is generally valid for six months. You must travel and apply for admission to the United States within that six month window.

After admission on your k1 visa you have 90 days to get married to your U.S. citizen  fiancé (e) or leave the United States. The DHS will issue an entry document (Form I-94) to you (the  k1 fiancé(e)) valid for 90 days. If you marry within 90 days, you can can apply to adjust your status to that of a lawful permanent resident (green card holder) through the filing of a Form I-485.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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What is K3 Visa?

The LIFE Act of 2000, allows an alien who
1. has a valid marriage to a U.S. citizen (husband or wife) and who is
2. the beneficiary on Form I-130, Petition for Alien Relative, and
3. the beneficiary of an approved petition on Form I-129F, Petition for Alien Fiancé(e),
admission into the United States as a K3 non-immigrant to adjust to immigrant status (get a green card) while inside the United States. The K3 visa is different from the K1 visa in that the K1 alien is merely engaged to marry a U.S. Citizen and is seeking admission as a non-immigrant K1 to get married in the United States and adjust to immigrant status (green card).

The LIFE Act of 2000, allows an alien who

  1. has a valid marriage to a U.S. citizen (husband or wife) and who is
  2. the beneficiary on Form I-130, Petition for Alien Relative, and
  3. the beneficiary of an approved petition on Form I-129F, Petition for Alien Fiancé(e), 

 admission into the United States as a K3 non-immigrant to adjust to immigrant status (get a green card) while inside the United States. The K3 visa is different from the K1 visa in that the K1 alien is merely engaged to marry a U.S. Citizen and is seeking admission as a non-immigrant K1 to get married in the United States and adjust to immigrant status (green card).

Wedding Photo - US Citizen bride

 

 

 

 

 

 

 

Avoids long wait abroad. Prior to the passage of the LIFE Act the spouse of a U.S. citizen who resides abroad had to wait for the length of time it took to process an immigrant visa which could be a year or more in some cases.

Derivative  K 4 status for children. The dependent children of the spouse of a U.S. citizen with an approved I-129F petition, who are accompanying or following to join their K 3 parent get admission on K 4 derivative status.

Admission for 2 years.  K 3 non-immigrants are initially admitted for a 2 year period. Extensions of stay are available for K3’s whose adjustment of status is not complete.

Employment in the United States. K-3/K-4 aliens must apply to USCIS for a document evidencing employment authorization using Form I-765.

Termination of K3/K4 status. K3/K4 status automatically terminates 30 days after

 (i) The denial or revocation of the Form I-130 petition;

 (ii) The denial or revocation of the immigrant visa application (Forms DS-230) filed by the alien;

 (iii) The denial or revocation of the alien’s application for adjustment of status (Form I-485) to that of lawful permanent residence;

 (iv) The K-3 spouse’s divorce from the U.S. citizen (final judgment);

 (v) The marriage of an alien in K-4 status.

 The K-4 status also ends with the denial of any of these petitions or applications for a K-3 parent.

Nevertheless, a denial or revocation of a petition or application is not effective unless you have exhausted the administrative appeal applicable to your application or petition.

Attorney Gary D. Goodin, for Immigration Navigator

Copyright © 2011, the Immigration Navigator

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