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

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.

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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Bona Fide Marriage Documents

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 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.

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

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

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

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

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

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

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

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

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

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

Approval

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

RFEs, or requests for more evidence

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

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

Denial

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

Review of denial

A person whose i-751 petition was denied can

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

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

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

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

[2] 8 C.F.R. 216.4

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

[4] 8 C.F.R. 103.5

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

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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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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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Form I-130 checklist

A Happy Reunited Immigrant Couple

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

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

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

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

*Note: Requirements for the affidavit.

Each affidavit should contain;

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

Use numbered paragraphs and head the document AFFIDAVIT.

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

 

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When the petitioner dies – immigration solutions for surviving relatives

In the past only widows and widowers could continue to seek immigration status despite the death of their petitioning spouse. For many years, USCIS had taken the view that the law did not let the beneficiary of a visa petition get approval of the petition if the petitioner died while the petition remained pending (i.e. the petition died with the petitioner). Furthermore USCIS had internal rules for revocation of approved petitions when the petitioner died.

But Congress under INA 204 (l) (Department of Homeland Security Appropriations Act, 2010) has expanded the categories of persons who may continue to seek immigration status (as though the petitioning relative had not died) to other categories of relatives, as well as to T and U non-immigrants, I-730 asylum derivatives, and derivative beneficiaries in employment and family-based preferences.

The death of a family member is very difficult to go through. But when the person who died was an immigration petitioner on an immigration petition which is still pending, the immigration beneficiary is left with added immigration worries.

In the past only widows and widowers could continue to seek immigration status despite the death of their petitioning spouse. For many years, USCIS had taken the view that the law did not let the beneficiary of a visa petition get approval of the petition if the petitioner died while the petition remained pending (i.e. the petition died with the petitioner). Furthermore USCIS had internal rules for revocation of approved petitions when the petitioner died.

Death of Immigration Petitioner

 

 

 

 

 

 

 

 

 

 

But Congress under INA 204 (l) (Department of Homeland Security Appropriations Act, 2010) expanded the categories of persons who may continue to seek immigration status (as though the petitioning relative had not died) to other categories of relatives, as well as to T and U non-immigrants, I-730 asylum derivatives, and derivative beneficiaries in employment and family based preferences. Section 204(l) of the Act applies to any immigrant visa petition, refugee/asylee relative petition, or application adjudicated on or after October 28, 2009. Recently the USCIS has issued policy guidance about how it will carry out INA 204(l) in practice.

Who is eligible?

The surviving foreign national is eligible if she;

  1. Resided in the United States when the qualifying relative died;
  2. Continues to live in the United States on the date of the decision on the pending petition or application; and
  3. Is at least one of the following:
  • The beneficiary of a pending or approved immediate relative visa   petition;
  • The beneficiary of a pending or approved family based visa petition, including both the principal beneficiary and any derivative beneficiaries;
  •  Any derivative beneficiary of a pending or approved employment-based visa petition;
  •  The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition;
  • An alien admitted as a derivative “T” or “U” nonimmigrant; or
  • A derivative asylee under section 208(b)(3) of the Act.

Reinstatement under INA 204(l) – U.S. residence

Reinstatement under 204(l) is by statute for qualifying applicants through a written request (no standard form). The letter should specify the applicant is seeking 204(l) reinstatement.  The applicant should send the letter accompanied by documentary evidence as proof of eligibility such as a death certificate, evidence of continuous residence in the U.S., and evidence of a relationship with the qualifying relative.

However, if an applicant has already filed Form I-485 for adjustment of status, a request for reinstatement together with documentary evidence as proof of eligibility should be sent to the same office to which the application was sent.

Aliens with an approved petition must apply for section 204(l) reinstatement to continue seeking permanent residence as the USCIS has a procedure to revoke approved petitioner when the petitioner dies.

Reinstatement on humanitarian grounds – regardless of U.S. residence

In certain circumstances, a survivor who would otherwise qualify under section 240(l), but for residing outside of the U.S. at the time of the qualifying relative’s death, might be allowed to ask for “humanitarian reinstatement” under 8 C.F.R. § 205.1(a) (3)(i)(C)(2) if he/she was the beneficiary of a petition approved before the death of the qualifying relative. With an approved petition, the alien should seek reinstatement by writing a letter accompanied by documentary evidence such as a death certificate and evidence of a relationship with the qualifying relative to the USCIS office that adjudicated the petition, not where the petition was filed. Humanitarian reinstatement is discretionary. Both humanitarian reinstatement and reinstatement under 204(l) may be filed simultaneously.

Affidavit of Support

A legally binding Affidavit of Support is required for certain applicants for intended immigrants under 8 C.F.R. § 213a. But where the petitioner dies an   Affidavit of Support may be obtained from another close relative as substitute sponsor [INA §213A(f)(5)(B)]. This is true even if the relative died after submitting an Affidavit of Support as an affidavit of support must be valid at filing and approval of the immigration application. Proof of the relationship between the beneficiary and the close relative must be submitted with the substitute affidavit.

There is no need for an affidavit of Support from a substitute sponsor if the alien is exempt from the affidavit of support requirements. Certain categories of applicants including intended immigrants with 40 quarters of qualifying employment are exempt from the affidavit of support requirement.

Priority dates

An applicant’s reinstated petition will keep the original priority date. USCIS policy permits applicants to file their I-485, petition  to adjust status and a request for reinstatement under INA §204(l) for the underlying petition at the same time, so long as the priority date is current.

Waivers of in-admissibility – based on extreme hardship

Sometimes the alien is inadmissible because of past criminal issues or immigration violations and therefore cannot get immigration status unless he obtains a waiver. The death of the qualifying relative may be used to get an extreme hardship waiver. But in such a case no real hardship to the qualifying relative need be shown since that person has died.

Conclusion

If you are a foreign national and the relative who filed an immigration petition for you has died consult an immigration attorney  promptly to decide your eligibility to continue seeking a better future in the United States.  After all this is what your deceased relative who petitioned for you would have wanted.

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How to do a late filing of form I-751 – if you must

A conditional permanent resident CPR who obtained his or her green card status through marriage of less than two years to a U.S. citizen or lawful permanent resident must file Form I-751, Petition to Remove the Conditions on Residence, on time to remove the conditions on residence. A failure to file the I-751 will end permanent resident or green card status.

A conditional permanent resident CPR who obtained his or her green card status through marriage of less than two years to a U.S. citizen or lawful permanent resident must file Form I-751, Petition to Remove the Conditions on Residence,  on time to remove the conditions on residence. A failure to file the I-751 will end permanent resident or green card status.

When to file?

A jointly filed form I-751 petition with supporting evidence must be filed between 21 to 24 months after the CPR’s admission or adjustment to permanent residence. An interview is usually not required but it may be required where the adjudicator determines that an interview would be useful to decide whether the marriage is in good faith.

Late filing allowed in rare circumstances

A jointly filed I-751 petition filed after 24 months since the CPR’s adjustment may be considered only if the CPR is able to prove good cause and extenuating circumstances for the failure to file in a timely manner. The circumstances that cause the delay must be extraordinary and outside of his or her control.

Written explanation required

A CPR must file an untimely petition with a written explanation (use a sworn affidavit) of his or her late filing and a request that USCIS excuse the late filing. Without a written explanation and a request for an excuse the USCIS will issue an I-751 denial notice. The denial notice may result in a notice to appear or NTA, which begins the deportation process.

What is good cause and extenuating circumstances?

Some examples of what constitute good cause and extenuating circumstances are;

  1. hospitalization,
  2. long-term illness,
  3. death of a family member,
  4. the recent birth of a child (particularly if there were complications), and
  5. a family member on active duty with the U.S. military.

The USCIS adjudicator has broad discretion to decide what is good cause and extenuating circumstances so it is important to support the explanation and request with credible evidence (e.g. medical records, affidavits) that prove good cause and extenuating circumstances.

If you are making a late filing of form I-751 please contact an immigration attorney before doing so. There are also I-751 waivers for battered spouses of U.S. citizens or LPRs that will excuse  a late filing.

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