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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Backdating passport stamps

Non-US passport holders (holders of green cards and non-immigrant visas) who illegally “backdate” or “back-stamp” their foreign passports to forge their actual physical presence in the United States are subject to removal and cancellation of their US visas.

The illegal practice of backdating arises because visitors who spend too much time in the States may be thought of as having immigrant intent, and permanent residents who spend too much time outside the U.S. may be deemed to have abandoned their U.S. Permanent Resident status.

I have a 10-year multiple B-1/B-2 visa. I entered the U.S., and was given six months by the Immigration Officer at the airport, but overstayed by only a few years.  

I would like to take a brief trip to Jamaica, in order to visit my family, but I need to return for my job. I was told that if I “back date” or “back stamp” the immigration entry date to Jamaica in my passport, to cover up that I overstayed, that I won’t have any problems.

Non-US passport holders (holders of green cards and non-immigrant visas) who illegally “backdate” or “back-stamp” their foreign passports to forge their actual physical presence in the United States are subject to removal and cancellation of their US visas.

Passport Stamps

 

The illegal practice of backdating arises because visitors who spend too much time in the States may be thought of as having immigrant intent, and permanent residents who spend too much time outside the U.S. may be deemed to have abandoned their U.S. Permanent Resident status.

A non-immigrant who backdated his passport may face the cancellation of his US visa and expedited removal upon seeking admission to the United States. Additionally a non-immigrant who overstayed in the United States for more than 6 months and accumulates unlawful presence and departs the United States may be barred from admission for 3 years or 10 years. Furthermore back-stamping or back-dating your passport constitutes fraud, and could result in a lifetime ban from the United States. A green card holder who is deemed to have abandoned his status may be subject to deportation.

Backdating is no longer effective for proving actual physical presence in the United States because the Department of Homeland Security now uses various databases for obtaining arrival and departure evidence. These include the US VISIT program under which biometrics and I-94/I-94W of non-US passport holders are checked. Though biometrics is not checked upon departure at this time, this may soon be the case. Another database is the Electronic Advance Passenger Information System, or eAPIS which allows airlines and other carriers to furnish lists of arriving and departing passengers to the Customs and Border Protection (CBP).  

The best thing to do is to be truthful to the US immigration authorities and to use your visa or green card for its intended purpose. Persons on a non-immigrant visa who want to live and work in the United States should seek advice from an immigration attorney about their immigration and non-immigrant visa options. Green card holders who wish to stay outside of the United States for extended periods should seek legal advice about avoiding the harsh immigration consequences of doing so including the consequences for becoming a U.S. Citizen.

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The Green Card Marriage Interview – green card fraud

After a US Citizen petitions for a non-immigrant spouse to get a US green card, the United States Citizenship and Immigration Services will often schedule a green card interview for the couple at a local service office. The subject of this green card interview is to decide whether the marriage is a good faith, or bona fide marriage.

What is a Good Faith Marriage?

A good faith marriage is legally valid according to the jurisdiction where the couple exchanged vows. Additionally, it cannot violate the laws of the United States (e.g. a polygamous marriage will not confer an immigration benefit) and was not entered into solely to get a US green card. The issue in the interview is whether a good faith marriage exists and not whether the marriage is practical (whether it will last a long time).

What is a Sham Marriage?

After a US Citizen petitions for a non-immigrant spouse to get a US green card, the United States Citizenship and Immigration Services will often schedule a green card interview for the couple at a local service office. The subject of this green card interview is to decide whether the marriage is a good faith, or bona fide marriage.

What is a Good Faith Marriage?

A good faith marriage is legally valid according to the jurisdiction where the couple exchanged vows. Additionally, it cannot violate the laws of the United States (e.g. a polygamous marriage will not confer an immigration benefit) and was not entered into solely to get a US green card. The issue in the interview is whether a good faith marriage exists and not whether the marriage is practical (whether it will last a long time).

What is a Sham Marriage?

A marriage without any intent, or “good faith,” to live together as husband and wife but was merely a scheme to get around the immigration laws is a sham marriage. The USCIS does not recognize a sham marriage  and the non-immigrant will get no immigration benefit from such a marriage.

Factors that raise suspicion of a Sham Marriage during a green card interview.

The factors that raise suspicion of green card fraud and may lead to in-depth questioning, a field examination or an investigation include:

1.         Large disparity of age;

2.         Inability of petitioner and beneficiary to speak each other’s language;

3.         Vast difference in cultural and ethnic background (times however are changing);

4.         Family and/or friends unaware of the marriage;

5.         Marriage arranged by a third-party;

6.         Marriage contracted immediately after the beneficiary’s apprehension or receipt of notification to leave the United States;

7.         Marriage entered into immediately following entry into the US

8.         Discrepancies in statements on questions for which a husband and wife should have common knowledge;

9.         The couple has not lived together as husband and wife since marriage;

10.      The beneficiary (alien) is a friend of the petitioner’s family;

11.       The US Citizen petitioner has filed earlier petitions for aliens, especially prior alien spouses.

The Good News

While any of these factors merely raises suspicion of green card fraud, this does not mean that a sham marriage will be found. The United States Citizenship and Immigration Services may not conduct in-depth questioning, a field examination or an investigation.  The couple, however is responsible for proving good faith intent with supporting documents during the green card application and during the interview (more on this in a later post).

Again the green card marriage interview questions are not about whether your marriage is perfect. The sole purpose of this green card interview is for an adjudicator to decide if the marriage is legally valid and not entered into solely for obtaining a US green card. Though living and working in the US is highly desirable to many you should not enter a marriage for the sole purpose obtaining a green card.

If you have questions about adjustment of status and the green card process, consult an immigration attorney who can advise you based on your unique facts.

Immigration Attorney Gary Goodin

Copyright © 2011, The Immigration Navigator

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