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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Renouncing citizenship to avoid 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 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.

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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Immigration fraud by changed activities on a B-2 visa – the 30/60-day rule

When the stated purpose for which a person applies for a non-immigrant US visa or seeks admission at a port of entry is different from his activities within a given time an immigration officer may infer that the person committed fraud or misrepresentation at the time of the visa application or upon seeking entry.

“Say one thing and shortly after do another”

The 30/60-day rule

Misrepresentation by changed activities

When the stated purpose for which a person applies for a non-immigrant US visa or seeks admission at a port of entry is different from his activities within a given time an immigration officer may infer that the person committed fraud or misrepresentation at the time of the visa application or upon seeking entry.

The violation of status within certain periods of time after issuance of the nonimmigrant visa or admission to the US may indicate fraud or misrepresentation.

The special rule under which an immigration officer may infer misrepresentation or fraud in such a case is known as the 30/60 day rule. It is important to note that even though an officer may infer misrepresentation, legal proof of misrepresentation needs more than just a mere inference. It requires that the misrepresentation is proved by both direct and circumstantial evidence.

A person who commits a misrepresentation is inadmissible and may be denied admission (including adjustment of status) under INA 212 (a)(6)(C)(i).

What changed activities?

An immigration officer applies the 30/60 day rule and invoke inadmissibility under INA 212 (a)(6)(C)(i) when for example a B2 non-immigrant states on a visa application/interview or upon entry that his purpose is tourism or to visit relatives and violate his status by:

(1) Actively seeking unauthorized employment and, after, becomes engaged in such employment;

(2) Enrolling in a program of academic study without the benefit of the proper change of status;

(3) Marrying and taking up permanent residence; or

(4) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The 30/60-day rule

0-30 days – Presumption of misrepresentation – if the foreign national violate his Non-Immigrant Visa status within 30 days, the offer may presume a misrepresentation in seeking a visa or entry.

30-60 days – No presumption but the officer must look at the facts for reasonable believe of a misrepresentation. The foreign nation may present evidence to refute misrepresentation.

More than 60 days – If the violation occurs after 60 days the conduct is not a basis to invoke INA 212 (a)(6)(C)(i).

Conclusion

The 30/60- day rule is just one more reason to seek legal advice from an immigration law attorney before taking any action that could have immigration consequences.

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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The unlawful presence bar to re-admission into the US

Unlawful presence is often a problem for certain persons (e.g. those who entered without inspection or entered on a C1, C1/D or D visa) who are prevented by law from adjusting or changing status in the US but who the law requires to leave the US to apply for a visa at a US consulate.

Unlawful presence is a bar to re-admission after the person leaves the United States and seeks a visa or permission to renter the United States. It is especially a problem to the immediate relatives of US citizens who cannot adjust status but must leave the United States and seek an unlawful presence waiver abroad before they can be issued an immigrant visa. The wait times to get an unlawful presence waiver approved can take many months or more than 1 year during which time the foreign nationals must stay outside the United States and be separated from their immediate US family. Unlawful presence is not a problem for a B visa holder who marries a US citizen, does not leave the United States and seeks adjustment.

Unlawful presence

Unlawful presence is often a problem for certain persons (e.g. those who entered without inspection or entered on a C1, C1/D or D visa) who are prevented by law from adjusting or changing status in the US and who the law requires to leave the US to apply for a visa at a US consulate. It is also a problem for some persons who overstayed in the United States and later seek a visa to return to the United States.

Unlawful presence is a bar to re-admission after the person leaves the United States and seeks a visa or permission to renter the United States. It is especially a problem to the immediate relatives of US citizens who cannot adjust status but must leave the United States and seek an unlawful presence waiver abroad before they can be issued an immigrant visa. The wait times to get an unlawful presence waiver approved can take many months or more than 1 year during which time the foreign nationals must stay outside the United States and be separated from their immediate family in the United States. Unlawful presence is not a problem for a B visa holder who marries a US citizen, does not leave the United States and seeks adjustment.

What is unlawful presence?

Under the law a foreign national is unlawfully present if the person over-stays an authorized period of stay, or is present without being admitted or paroled. INA 212 (a) (9) (B) (ii).  Basically the person has no permission from the immigration authorities to be in the US or stay in the US whether it is that the end date on an I-94 has passed or the person has violated the terms of a visa such as a F-1 student who is no longer enrolled in school or a J-1 who is no longer taking part in an exchange program. In the case of a person in F-1 or J-1 status however he or she does not begin to accumulate unlawful presence until an immigration judge or immigration officer finds lawful presence.

The time for which a person is unlawfully present is legally important.

3-year and 10-year bars to readmission

Aliens who accumulate unlawful presence may be subject to a 3-year or 10 –year bar depending on the period of their unlawful presence.

180 days but less than 1 year

If an alien is unlawfully present for more than 180 days but less than one year and voluntarily departs before the start of removal proceedings such a person is barred from readmission into the United States for 3 years. Note that the bar is triggered after a voluntary departure even if the alien is granted advance parole.

More than 1 year

If the alien is unlawfully present for a year or more, then departs or is removed (deported), he or she is barred from re-admission for 10 years.

For the purpose of the 3-year or 10 year bar unlawful presence is not counted in total meaning, a person who over-stays for 3 months, leaves, re-enter and over-stays again for 4 months for a total time of more than 180 days is not subject to the 3-year bar. But if the same person over-stayed by 7 months on the second occasion, he or she would be subject to the 3-year bar.

Statutory exemptions

The law exempts certain period from counting towards unlawful presence.  The time during which a person is a child under the age of 18, or a bona fide application asylum is pending (unless the applicant works without authorization), under INA Section 301 family unity protection or a battered spouse or child who can prove a real connection between unlawful presence and abuse is exempt and no unlawful presence accumulates while these conditions apply.

Tolling (or suspension of) unlawful presence for good cause

The law tolls or suspends unlawful presence for no more than 120 days under certain conditions. Unlawful presence is tolled or suspended for a person who is lawfully admitted or parole into the United States, and who files a proper application for an extension of stay or change of status, and who was not employed before the application or while the application is pending.

Persons who file a proper application for adjustment of status are not subject to the 120 limitation on tolling but have the unlawful presence suspended while their application is pending.

Conclusion

The unlawful presence bar is just one more reason why foreign nationals should periodically consult an immigration attorney for advice. The cost of not knowing is very expensive. A person who is subject to the unlawful presence bar may seek a discretionary waiver. Waivers and the notice of intent to change the waiver regulations for aliens with qualifying United States citizen relatives will be the subject of another post.

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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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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Naturalization denied – break in continuous residence by prolonged absence from the United States

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

To become a naturalized United States citizen one of the set of requirements that a lawful permanent resident must meet is continuous residence in the United States.

What are the continuous residence requirements?

The continuous residence requirements for a lawful permanent resident to become a naturalized US citizen are –

  1. At least five (5) years of continuous residence immediately before the date of filing of his petition for naturalization (three (3) years in the case of qualified spouses of U.S. citizens), including physical presence in the United States for at least one half of the five-year (or three (3) years for qualified spouse of U.S. citizens).
  2. At least three months of continuous residence in the state or district in which she will file her naturalization petition, immediately before filing, including physical presence for at least one half of the period of continuous residence in the state or district of filing, and
  3.  Continuous residence within the United States from the date of the petition up to the time of admission as a citizen [1].

A person is not yet eligible for naturalization if there is a break or disruption in continuity of residence [2].

The purpose of the residency requirement

Since as far back as 1790 the US immigration laws have made residence within the United States after entry a requirement for naturalization as an American citizen.

The Second Circuit Court of Appeals has described the continuous residency requirement as a proving ground on which the alien’s good moral character and attachment to the principles of the U.S. constitution are tested [3].

The purpose of the continuous residence requirements has been to set up a period of probation during which applicants can learn the language; familiarize themselves with U.S. customs and institutions; shed foreign attachments; acquire attachment to the principles of the U.S Constitution and government; show their ability to conduct themselves as law-abiding citizens; and generally prove their fitness to be accepted as U.S. citizens [4].

Residence defined

The INA defines residence as “the place of general abode” and “the place of general abode” of a person as his or her principal, actual dwelling place in fact, without regard to intent. So therefore residence is where a person actually lives whether it was his intention to make it his residence or not [5]. For this reason (and for the issue of abandonment, not discussed here), a lawful permanent resident should seek legal advice before going abroad for anything more than a brief and casual visit.

Breaking continuous residence

Under current immigration regulations [6] absence for a continuous period of between six months and a year during the period for which continuous residence is required create a presumption of a break or disruption in the continuous residence. The naturalization petitioner has the burden to present evidence (discussed below) to rebut the presumption. If the petitioner presents satisfactory evidence he or she has continuous residence despite absence of 6 months to one year from the United States. With limited exceptions involving work overseas for the United States government and US government contractors, if the petitioner for naturalization has been continuously absent from the United States in excess of one year during the period for which continuous residence is required, then there is a break in continuous residence as a matter of law.

Overcoming presumption of a break in continuous residence for applicant’s absence for between 6 months and one year.

To rebut a presumption of a break in continuous residence because of a prolonged absence from the United States for between 6 months and one year, a petitioner can submit documentary evidence showing that during the absence:

(A) She did not stop her employment in the United States;

(B) Her immediate family remained in the United States;

(C) She retained full access to his or her United States home; or

(D) She did not obtain employment while abroad.

________________________________________

[1] See, Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D. Mich. 1995)

[2] Id.

[3] United States v. Camean, 174 F.2d 151, 153 (2d Cir. 1949)

[4] United States v. Camean, 174 F.2d 151 (2d Cir. 1949); United States v. Mulvey, 232 F. 513 (2d Cir. 1916); In re Vasicek, 271 F. 326, 329 (E.D. Mo. 1921); In re Di Giovine, 242 F. 741 (W.D.N.Y. 1917) .

[5] 8 USCS § 1101(a) (33).

[6] 8 CFR 316.5(c).

 

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