Renouncing citizenship to avoid taxes

Renouncing U.S. citizenship to avoid US taxes*

With concern over higher tax rates in the United States relative to some low tax destinations such as Singapore and Belarus, and the rise of economic citizenship  in many emerging countries around the world a record number of United States citizens especially those who identify themselves as investors have sought to renounce citizenship to avoid taxation.  Many have even inquired about “relinquishment” without full “renunciation” to avoid paying U.S. taxes while still preserving U.S. citizenship and its benefits including the ability to confer immigration and citizenship benefits to others.

Loss of Citizenship

Section 349 (a) of the Immigration and Nationality Act set out the expatriation acts by which a national of the United States by birth or naturalization can lose United States nationality. Formal or official renunciation at a U.S. consulate [Section 349 (a) (5)] is one means of losing United States nationality but it not the only means. Some United States citizens with dual nationalities who hold political office abroad may lose United States nationality when they take an oath of allegiance to a foreign state, if the act of taking the oath was done with the intent of relinquishing United States nationality.

Renunciation can make a former citizen ineligible for a U.S. visa

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added a new ground of inadmissibility for certain former citizens who renounce citizenship to avoid paying taxes. Section 212 (a) (10) (E) of the Immigration and Nationality Act states

“Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible.”

But the ground of inadmissibility in Section 212(a) (10) (E) applies only to renunciations of U.S. citizenship that took place on or after September 30, 1996. Furthermore the statute requires specific intent to avoid paying U.S. taxes. Specific intent requires that the former U.S. citizen subjectively desired loss of U.S. citizenship to avoid paying U.S. taxes. Therefore the reason for renouncing U.S. citizenship is important. Public statements about the reason for renouncing US citizenship may come back to bit. But the surrounding circumstances of the renunciation may still prove specific intent to avoid paying U.S. taxes even if the former U.S. citizen was silent on the issue.

The regulations effecting the statute state that “an alien who is a former citizen of the United States, who on or after September 30, 1996, has officially renounced United States citizenship and who has been determined by the Secretary of Homeland Security to have renounced citizenship to avoid United States taxation, is ineligible for a visa under INA 212(a) (10) (E).” 22 CFR 40.105. But the statute has been criticized both for the ambiguity of its language and as a possible violation of international law.

Role of U.S. consulate

The role of the State Department and the consular officer is very limited in implementing this ground of inadmissibility. The extent of coordination between the Internal Revenue Service and the immigration agencies is unclear. But unless the applicant appears as a hit in the consular lookout system revealing a finding of inadmissibility under INA 212(a) (10) (E), a consular officer is required to assume that the visa applicant is eligible. So persons who renounce to avoid U.S. taxes may slip under the radar.

Conclusion

Renouncing U.S. citizenship is a very serious decision and is not just a matter for high net worth individuals. Choosing to live abroad as over 6 million Americans do, is not the same as renunciation.As with many areas of immigration law the general rules seem simple but the details and exceptions to the rules are complex and confusing. So look before you walk on thin ice. Before renouncing citizenship consult with both an immigration attorney and a tax attorney to evaluate the specific circumstances of your case as each case is unique. Under current immigration law even if you are found inadmissible a discretionary waiver may be available for non-immigrant admission into the United States.

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

*CIRCULAR 230 NOTICE: IRS Regulations require us to inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transactions or matter addressed herein.

Resources for additional information

1. Laura Saunders, Should you renounce Your U.S. citizenship W.S.J. , May 18, 2012

2. 77 Fed. Reg. 25538 – 25545 (April 30, 2012)

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Application of the Fourth Amendment to unreasonable searches in deportation cases

In the event that you or a family member get detained by ICE, or receive a Notice to Appear, you should know that deportation is not inevitable. You should also know that there are ways to challenge the evidence that ICE relies upon to seek your deportation. The Fourth Amendment to the United States Constitution provides one way to kick out evidence before it is admitted against you.

The Fourth Amendment

The Fourth Amendment of the United States Constitution prohibits unreasonable search and seizure of persons, houses, papers and effects by government agents. A government agent is any person acting in an official capacity for a Federal or state government such as an immigration officer or local law enforcement.

What is a Search under the Fourth Amendment?

A search under the Fourth Amendment takes place any time there is an intrusion into an area where a person has a reasonable expectation of privacy. An example of a place where a person has a reasonable expectation of privacy is in a house or dwelling. This is consistent with the age-old English law maxim that every man’s house is his castle and fortress [Sir Edward Coke, Semayne’s Case (1605)]. Therefore the Fourth Amendment applies when the police or ICE agents enter a dwelling or intrudes upon anything on which a person has a reasonable expectation of privacy. The Fourth Amendment requires that the search be reasonable.

What is a reasonable search?

To be a reasonable search the courts will require the government agents to have had a warrant supported by probable cause. Also to be reasonable a search with a warrant must not exceed the scope of the warrant and must be conducted reasonably. The police cannot use a warrant as permission to knock down the door of a dwelling without announcing themselves and giving the occupants, if any an opportunity to answer (The Knock and Announce Rule). Besides a warrant there are certain limited exceptions to a warrant. No warrant is required for a consent search. A search in the case of a house or dwelling may also be reasonable if government agents have the consent of an adult occupant (not a minor) of the dwelling. The consent of the landlord is not enough. The other limited exceptions to a warrant are known as exigent circumstances. These include a search indent to a lawful arrest, hot pursuit of a felon and good faith reliance on a defective warrant- United States v. Leon, 468 U.S. 897 (1984).

Border Searches

Section 287(c) of the Immigration and Nationality Act gives immigration officers and employees the power to search, without a warrant, the person and personal effects of any person seeking admission to the United States if they have reasonable cause for suspecting that such a search would disclose grounds for exclusion from the United States.

The remedy for Fourth Amendment rights violation.

One of the principles for interpreting the United States Constitution is the maxim “For every right there is a remedy.” The remedy for the violation by government officers of a person’s right to be free from unreasonable intrusion into a place where a person has a reasonable expectation of privacy is the Exclusionary Rule. The Exclusionary rule is a judicially carved rule that is designed to deter future official violations of the Fourth Amendment. It provides legal grounds to object (by way of a motion to suppress) to evidence introduced against a respondent before the evidence if admitted by the judge. It also provides that evidence indirectly obtained as a result of a violation of the Fourth may be similarly suppressed under what is known as the fruits of the poisonous tree doctrine, if the link between the violation and the evidence is not too attenuated or remote.

Again the purpose is to deter official misconduct by suppressing the tainted evidence. Therefore if an unreasonable search leads to an arrest, the party arrested may move to exclude or suppress admissions made while in custody as the tainted fruits of an unlawful search. The exclusionary rule is most applicable in a criminal context.

Exclusionary rule in immigration cases – limited application

Evidence admitted in a deportation case must not only be probative of a fact to be decided but it its use must be fundamentally fair so as not to deprive the respondent of due process of law. Matter of Toro, 17 I. & N. Dec. 340 (B.I.A. 1980) ; Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980). .

The application of the Fourth Amendment to the non-criminal context such as deportation proceedings was severely limited (but not barred)  by the United States Supreme Court ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (U.S. 1984). The Court decided that the application of the exclusionary rule to civil deportation proceedings can be justified only if the rule is likely to add significant protection to Fourth Amendment rights. INS v. Lopez-Mendoza, 468 U.S. 1032, 1045 (U.S. 1984).

However in Matter of Toro, the Bureau of Immigration Appeals excluded evidence from a violation the Fourth Amendment where the misconduct of government agents was egregious.  Therefore flagrant violations of the Fourth Amendment may trigger the exclusionary rule in a deportation proceeding. The warrant-less entry into a respondent’s apartment without securing his voluntary consent, and based solely on the fact that he had a Nigerian sounding name, is one example of an egregious Fourth Amendment violation.  Orhorhaghe v. INS, 38 F.3d 488,497 (9th Cir. 1994).

Sometimes the manner of acquisition of evidence in a deportation case may be so egregious that use of the evidence would deprive a respondent of his constitutionally protected right to due process of law under the Fifth Amendment and render the deportation proceedings as fundamentally unfair. In such a case a timely motion to the court to suppress the evidence is warranted.

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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Refiling a spousal immigration petition after a withdrawal

Fraudulent marriage for immigration purposes

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

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

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

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

Withdrawal with admissions of fraud

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

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

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

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

Heavy burden when re-filing a withdrawn spousal petition

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

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

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

Do I need an immigration lawyer?

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

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

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

Immigration laws are nearly as complex as the tax code

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

How an immigration attorney can make your life easier?

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

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

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

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

Conclusion

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

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

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

Lying to Immigration

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

Visa or Immigration Fraud

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

Material Misrepresentation

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

Penalty

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

Immigration Fraud and Misrepresentation

Misrepresentation defined

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

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

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

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

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

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

Timely retraction and hardship waivers

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

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

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

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

 

 

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

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

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

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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