Renouncing citizenship to avoid taxes

Renouncing U.S. citizenship to avoid US taxes*

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

Loss of Citizenship

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

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

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

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

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

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

Role of U.S. consulate

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

Conclusion

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

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

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

Resources for additional information

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

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

Share This Post

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

“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.

 

Share This Post

The unlawful presence bar to re-admission into the US

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.

Share This Post

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

Lying to Immigration

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

Visa or Immigration Fraud

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

Material Misrepresentation

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

Penalty

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

Immigration Fraud and Misrepresentation

Misrepresentation defined

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

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

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

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

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

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

Timely retraction and hardship waivers

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

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

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

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

 

 

Share This Post

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

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

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

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

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

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

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

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

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

Approval

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

RFEs, or requests for more evidence

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

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

Denial

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

Review of denial

A person whose i-751 petition was denied can

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

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

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

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

[2] 8 C.F.R. 216.4

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

[4] 8 C.F.R. 103.5

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

Share This Post

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).

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

Share This Post

I-751 Green card removal of conditions

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.

Share This Post

Adjustment of status based on marriage

What is adjustment of status?

Adjustment of status is the process of applying for a green card (become a lawful permanent resident) by non-immigrants who are already in the United States. The applicants are not required to leave the United States and go through the hassle and delay of applying abroad. An applicant seeking adjustment of status must have made lawful entry into the United States which means admission into the United States after inspection by an immigration officer.

Green card Petition

An adjustment of status application usually does not stand alone (except in diversity visa, asylum or refugee cases). It is based on a petition for an immigrant visa that is immediately available or a prior approved petition for an immigrant visa. The person who does this petition is usually an employer or a family member such as a spouse or parent. For applicants who have married a United States citizen, the green card application and the immediate relative petition can be filed at the same time and they do not need to await the approval of the petition.

Obtaining a green card is discretionary

An adjustment of status by USCIS is discretionary. Obtaining a green card is a privilege, not a right. USCIS will check the applicant’s immigration and criminal history carefully to decide if there are any obstacles (in-admissibility factors) that could prevent issuance of a green card.  However, applicants married to a United States citizen may have some obstacles waved such as overstaying or earlier unauthorized work. Even if the applicant has a criminal history that could be an obstacle, he may be able to able to apply for a waiver. A waiver is a request that the immigration service “forgive” past criminal convictions or other obstacles.

Is the marriage true and real?

The immigration services will also test (using the documents you send and the adjustment of status interview) whether there is a level of trust between the applicant and the United States citizen spouse that would be expected in a marriage. To prove trust in the application process the applicant and spouse must prepare documentary evidence of their marriage. To prove trust at the adjustment of status interview it is important that communication between husband and wife is open enough for them to answer questions about each other (spouse’s date of birth and income, the details of how the couple met) that an immigration officer may ask of the couple.

Adjustment of Status by marriage

 

 

 

 

 

 

 

 

 

 

Green Card Checklist – Documents you need to get

Documents that carry a lot of weight and credibility with the immigration services in proving a marriage follow. Any documents not in English must be translated into English for proper submission to the USCIS.

  1. Birth Certificate of both parties
  2. Marriage Certificates (If the marriage took place abroad, give a copy of the foreign law relied on to prove the marriage is valid in the foreign country.) 
  3. Divorce Decrees for any earlier marriages
  4. Passport – of the applicant
  5. AR-11, Arrival Departure Document
  6. Joint Obligations – Receipts showing join obligations for living expenses (lease, cable, utility bills, auto insurance) – applicant should make sure that accounts have both names.
  7. Joint Ownership of Property – Title that shows joint ownership of property – car title, deed
  8. Joint Management of Finances – Evidence of joint management of finances – joint bank account, life insurance, pension with spouse named as beneficiary. This is very important because it clearly indicates trust (people tend not to trust their money to strangers.)
  9. Photos of the Couple
  10. Wedding Invitations, wedding gift cards
  11. Wedding Photos – also photos from honeymoon, if any
  12. Correspondence addressed to either or both spouses at the same address
  13. Join Tax Returns and W-2s (last two)
  14. Spouse as Emergency Contact – Employment Letters from applicant and spouse on company letterhead and signed by an official of the firm, stating when employment began, salary, marital status, dependents claimed and whom to notify in case of emergency.
  15. The latest two pay stubs/statements.

This is merely an overview of adjustment of status. Please discuss the specifics of your case with a competent immigration attorney as complex legal issues may arise during adjustment of status.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

Share This Post