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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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 naturalization interview (N-400 interview)

After you have filed form N-400 with supporting documentary evidence and the USCIS has received notice from the Federal Bureau of Investigations that a full criminal background check is complete, the USCIS will send you an appointment notice for your naturalization interview or citizenship interview.

The law requires the USCIS interviewing officer to use information provided in the naturalization interview, the documents submitted by you and your A-file to decide whether to grant your application for naturalization. Therefore the naturalization interview is a vital part of becoming a United States citizen by naturalization.

Naturalization Interview

After you have filed form N-400 with supporting documentary evidence and the USCIS has received notice from the Federal Bureau of Investigations that a full criminal background check is complete, the USCIS will send you an appointment notice for your naturalization interview or citizenship interview.

The law requires the  USCIS interviewing officer to use information provided in the naturalization interview, the documents submitted by you and your A-file to decide whether to grant your application for naturalization. Therefore the naturalization interview is a vital part of the naturalization process.

If you fail to appear for a naturalization interview the USCIS will consider that you have abandoned the naturalization application unless you give written notice of the reason for the non-appearance within 30 days after the scheduled date. You must ask that the interview be rescheduled in the written notice.

You have the right to an attorney and an interpreter

You have a right to an attorney (signed form G-28) and to select an interpreter. You may select an interpreter even though you must prove during the naturalization interview that you are literate in English. Your interpreter should be fluent in English and the foreign language that you speak. He or she should bring a government issued ID to verify identity. The examiner may disqualify the interpreter to make sure that the examination is proper, in which case the USCIS officer may reschedule the interview.

Statements made under oath.

A USCIS officer conducts the interview. The statements you make are under oath or affirmation. If you do not understand a question, it is important that you should ask the officer to repeat or restate the question.

Your interview may be video-taped or recorded as part of the record of examination. During the examination the officer will ask you questions about your responses to questions on form N-400. Therefore keeping a copy of the N-400 and documentary evidence for review before attending the naturalization interview is highly recommended.

The officer will ask you to confirm and correct if necessary information contained in the application form (e.g. you legal name, your current marital status, travel outside the United States). You may present further documentary evidence to clarify and support any matter on the application. If the application is deficient, you may ask for a continuance to allow you to present further evidence to prove statutory eligibility for naturalization. When the officer has completed reviewing N-400, the officer will ask you to sign Parts 13 and 14 of the Form N-400, Application for Naturalization.

The officer will then administer the United States citizenship test – the English reading test, the English writing test and the civics test (your knowledge of the history and government of the United States).  The US civics test is oral.

The decision

The officer may recommend your application for approval or denial or schedule a re-examination. The officer may tell you that he or she has granted your application at the interview. The officer may be unclear about a matter or may delay a decision to seek supervisory approval.

If the officer recommends your application for approval and it is approved you will receive a notice of the oath ceremony stating the time and place to take oath of allegiance and receive a certificate of naturalization as a United States citizen.

Denial and rehearing

If the officer denies the application the USCIS must serve you with notice in writing stating the reasons for the denial within 120 days after the interview. The denial notice will state that you have the right to make a written request for a re-hearing of your application. The rehearing will be before a different officer than the one who conducuted your original examination. The reviewing officer has the discretion to review the record of examination created from your original exam but he or she is not required by law to do so. In the interest of justice the reviewing officer may consider your case anew (a full de novo review) and allow new evidence including the testimony of witnesses.

Conclusion

Just as though no two applicants for naturalization are the same, no two naturalization interview experiences are the same. The naturalization interview questions you will be asked may vary with the facts of your case. Below is a helpful USCIS video that you may find helpful.

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.

 

 

Test

 

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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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Appealing USCIS denial of extension of visitor visa status

The USCIS may grant the I-539 application, request further evidence (RFE) or deny the application. Sometimes the application may be denied after the USCIS receives further evidence. In practice some RFE notices are vague. A foreign national who does not understand what the USCIS wants may send irrelevant evidence or insufficient evidence to prove eligibility.

At other times the USCIS reviewing officer gets it wrong and sends the foreign national an improper written notice of denial. The notice will set out the reasons for the denial and require the foreign national to leave the United States within (30 or 33 days). This notice also informs the foreign nationals of her right to appeal within 30 days of the decision (33 days if the decision was mailed).

Extension for visitor visa status

Sometimes foreign national visiting family in the United States as a tourist may need to extend their status in the United States because of unforeseen events such as the illness of a United States citizen or LPR parent or child or for unfinished medical treatment which is not available in their home country.

Unexpected Illness-I-539 Extension of Visitor Status
It is a common mistake for foreign nationals to confuse the length of their visa with the length of their authorized stay in the United States. The visa is merely a permission to seek entry into the United States. The foreign national must return to her home country before the time on the I-94 form has expired.

A person in  the United States as a tourist (e.g. B2 status) who wishes to stay beyond the date stamped on his or her I-94 must file USCIS form I-539 with proper supporting evidence.  The evidence must show that he or she is intends to return to the country of residence and it must also show that the person has the financial resources to support herself in the United States (and the source of the money). The extension should typically be filed 4-5 weeks before the end of the time stamped on the I-94 form. Do not wait until the last-minute.

Keep proof of filing

The mailed application for extension should also be accompanied by proof of filing such as USPS certified mail with return receipt requested. In case the USCIS claims to not to have received the application, the foreign national can prove that he did not accumulate unlawful presence in the United States because he made a timely file application for extension of status. A foreign national may also do a filing of form 539 online.

USCIS response to a filing

The USCIS may grant the I-539 application, request further evidence (RFE) or deny the application. Sometimes the application may be denied after the USCIS receives further evidence. In practice some RFE notices are vague. A foreign national who does not understand what the USCIS wants may send irrelevant evidence or insufficient evidence to prove eligibility.

At other times the USCIS reviewing officer gets it wrong and sends the foreign national an improper written notice of denial. The notice will set out the reasons for the denial and require the foreign national to leave the United States within (30 or 33 days). This notice also informs the foreign nationals of her right to appeal within 30 days of the decision (33 days if the decision was mailed).

Appeal to the AAO through the USCIS

The foreign national has 30 days to appeal the unfavorable decision to the Administrative Review Office in Washington DC. Do not sent the appeal directly to the AAO. Rather it sent it to the USCIS Service Center that made the unfavorable decision. The AAO considers the extension of stay afresh and is not bound by the USCIS.

At the service office a reviewing officer will look at the appeal. He or she may either reverse the decision and grant the foreign national the extension of stay or send the appeal to the Administrative Appeal Office which will consider the appeal and any briefs and make a written decision.

Do not appeal without an immigration attorney

A person seeking to appeal a denial should not go it alone. He or she should contact a competent immigration attorney to help with documentation and drafting of a legal brief with any new evidence that the foreign national wishes the AAO to consider. The attorney may also be able to make a written request to the AAO for an extension.

If the foreign national wishes to withdraw the appeal and leave the United States, he or she must do so in writing.

If you or a loved one wishes to extend your stay in the United States or you have had your appeal denied, please call my immigration law office of at 888-747-1108 for help.  I will do my best to help.

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Often asked questions about affidavit of support form I-864

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Q. When must the affidavit of support be filed?

A.  It is filed as part of the Adjustment of Status Application package. But if processing at a US consulate the National Visa Center (NVC) will send an Affidavit of Support processing fee invoice and payment instructions to the petitioner. After the petitioner has paid the fee and obtained a receipt he or she will get the proper instructions about completing the Affidavit of Support forms. He or she must be sure to complete the form properly and send tax returns and other supporting documents such as a job letter on company letterhead stating his or her income to the NVC with the applicants name and NVC case number at the upper right hand corner of each document.

Q. Who is eligible to be a sponsor?

A. A sponsor on an affidavit of support must satisfy all the following three requirements;

  1. A U.S. citizen, national or LPR;
  2. At least 18 years old; and
  3. Domiciled within the United States or in any U.S. territory or possession.

Q. Does the sponsor have to be employed?

A. No. The sponsor has other options besides income to show adequate financial support for the sponsored immigrant if his income falls short of the minimum requirement for his family size. He may show adequate assets, usually between 3 and 5 times the shortfall. The sponsor can also count the assets and income of household members (Form I-864A) to prove adequate support for the intended immigrants or seek a joint sponsor with the required minimum income as a last resort. If the intended immigrant has significant assets (e.g. real estate, stock, bonds) which are available, then this may also be counted.  Therefore a retired or temporarily unemployed person can still be a sponsor though current use of welfare benefits is a negative factor.

Q. If the household members join their income and assets, because the petitioner does not have enough income, must the household members file a change of address form with USCIS?

A. No. Only sponsors must inform the USCIS of a change of address. Household members who execute Forms I-864A, Contract Between Sponsor and Household Member have no obligation to inform USCIS when they change address.

Q. How does income does my sponsor have to show and how does she prove income?

A. The key is using the federal poverty income guidelines Form I-864P to find the minimum income requirement for the family size unit of the sponsor. The sponsor must be able to show the minimum income for his or her family unit size. While a bigger family unit size increases the minimum income requirement it does allow the sponsor to include more household member’s income.

The minimum income requirement is 125 percent of the federal poverty guideline for a given family unit size. But if, the petitioner is actively serving in the US armed forces, the minimum income requirement is 100 percent. The sponsor should verify his or her income with certified copies of federal tax returns for three earlier years. Additionally notarized copies of employment letters should also be used.

Q. How do I determine family unit size for my case?

A. The family unit size includes the following persons even if they do not live at the same residence (count each person once[1])

  1. The sponsor
  2. The sponsor’s spouse
  3. The sponsor’s unmarried children under 21 unless they are emancipated
  4. Any person  claimed by the sponsor as a dependent for tax purposes on the most recent tax return
  5. The number of aliens the sponsor has sponsored under past Forms I-864 for whom the sponsor’s support obligation has not terminated
  6. Any of the sponsor’s spouse, child, adult son or daughter, parent or sibling residing with the sponsor if including their income would be helpful, and
  7. The sponsored immigrant and all accompanying derivative family members (spouse or dependent children of sponsored immigrant) under current Form I-864, even if such persons do not or will not have the same principal residence as the sponsor.

Q. Must the co-sponsor be a relative?

A. No. But a relative should be used where possible.

Q. Can the income of joint sponsors be joined together to satisfy the minimum income requirement?
A. No. Each joint sponsor must satisfy the income requirement on her own or combine assets/income with the intended immigrant or with members of her household.
I hope this helps you to comply with the affidavit of support form requirement.

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

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

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

When to file?

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

Late filing allowed in rare circumstances

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

Written explanation required

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

What is good cause and extenuating circumstances?

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

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

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

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

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Filing Tips – USCIS forms

There is little room for forgiveness for some errors such as having the wrong missing the end date on your I-94. Similarly, when making applications or petitions to USCIS it is important to pay close attention to minor details in filing out forms. This is because simple inaccuracies in a USCIS filing can lead to the delay or denial of your petition.

In the immigration application process there is little room for forgiveness for some errors such as missing the expiration date on your I-94. Similarly, when making applications to USCIS it is important to pay close attention to minor details when filing forms. This is because simple inaccuracies in a USCIS filing can lead to the delay or denial of your petition. 

Here are some general filing tips for USCIS forms:

  1. Most USCIS forms have an accompanying instruction sheet. Read and follow all form instructions for USCIS filing fees, filing location, and eligibility requirements.
  2. If hand writing your application, make sure all entries are neat and legible. For legibility and neatness, it is best to fill out the forms online and print them for review and signature.
  3. When entering information on your application or petition, be sure to keep your information within the box or space provided.
  4. Use black or blue ink only. Do NOT use highlighters or red ink on your application as they may make your materials undetectable when scanned.
  5. Make sure that you are using the latest edition of the form. The correct, most current edition of every USCIS form is always available for FREE download on its website.
  6. Ensure that printed forms do not have the data fields grayed out. Information entered into grayed-out data fields will not be detected by the machine scanners.
  7. Make sure that you provide all required supporting documentation and evidence.
  8. Make sure that you provide accompanying English translations for all supporting documents written in a language other than English.
  9. Review each line of the forms twice; once before you sign it and again before filing.
  10. Be sure to sign your application.
  11. Be sure that you mail all pages of the application.
  12. If you must change your form, we recommend that you begin with a new form, and not try to white out information. USCIS scanners may see through the white correction tape or fluid and make your form incorrect, possibly leading to processing delays or rejection.

Remember that there are no half-visas or green cards and accuracy and attention to detail is very important to get your case approved. Hope this helps.

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I-751 Green card removal of conditions

A conditional permanent resident (CPR) must file Form 1-751 with supporting evidence and the correct filing fee to remove the conditions on his or her residence within the 90-day period immediately before two (2) year anniversary of the date on which he or she obtained permanent residence. USCIS may waive the need to file within 90 days under certain rare circumstances. Normally the CPR and the CPR’s spouse who filed the original immigrant visa petition Form I-130 or fiancé (é) petition Form I-129F through which the CPR obtained permanent residence will file a Petition to Remove the Conditions on Residence Form I-751 with USCIS. Both the CPR and the CPR’s spouse must sign the form.

Who is a conditional permanent resident?

Conditional permanent resident (CPR) status is the immigration status given to an immigrant who has applied for their green card within two years of getting married to a United States citizen or lawful permanent resident. The immigrant spouse will be a conditional resident for two years from the time he or she receives conditional residence. A conditional resident has the same rights as a lawful permanent resident. A conditional resident can live and work freely in the United States, and can travel in and out of the United States.

How are the conditions on residence removed?

A conditional permanent resident (CPR) must file Form 1-751 with supporting evidence and the correct filing fee to remove the conditions on his or her residence within the 90-day period immediately before two (2) year anniversary of the date on which he or she obtained permanent residence. USCIS may waive the need to file within 90 days under certain rare circumstances.

Normally the CPR and the CPR’s spouse who filed the original immigrant visa petition Form I-130 or fiancé (e) petition Form I-129F through which the CPR obtained permanent residence will file a Petition to Remove the Conditions on Residence Form I-751 with USCIS. Both the CPR and the CPR’s spouse must sign the form unless the CPR can get an I-751 waiver.

If USCIS Service Center Director is satisfied from the petition and supporting documents that the marriage is in good faith and not for the purpose of evading U.S. immigration laws, he or she may waive an interview with the couple. If not the Director may schedule an I-751 interview or start a marriage fraud investigation if he or she believes the marriage was for the purpose of getting a green card.

If the director approves the joint petition he or she will give written notice of the decision (I-797C, Notice of Action) to the CPR and an appointment notice (I-797C, Notice of Action) to with a specific time, date and place to capture your fingerprints, photo and signature at a local USCIS Application Support Center (ASC) for processing of a new Permanent Resident Card (the 10 year green card). The CPR must  then surrender any Permanent Resident Card previously issued.

Can I include my dependent children on the I-751 petition?

Dependent children of a conditional permanent resident granted conditional permanent resident status on the same date or within 90 days after their immigrant parent received CPR status (Form I-485 approved or admission using the Immigrant Visa) may be included in the joint petition filed by the parent and the parent’s petitioning spouse.

Children who cannot be included in a joint petition filed by their CPR parent and the parent’s petitioning spouse due to the child’s not having acquired conditional resident status on the same date or within 90 days after the parent received CPR status, the death of the parent, or other reasons may file a separate Form I-751 Petition to Remove the Conditions on Residence.

To make sure each conditional resident child receives an I-751 fee receipt (I-797C, Notice of Action) documenting an extension of conditional resident status for one year, there is no bar on filing Form I-751 for each child if the parent wishes. But the Form I-751 filing fee will apply, unless a fee waiver is granted.

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