Seguritan US Immigration Articles

Proving Good Faith Marriage

A U.S. citizen may sponsor his alien spouse for a green card by filing Form I-130 petition with the United States Citizenship and Immigration Services or USCIS. Since the spouse of a U.S. citizen is considered an “immediate relative” for immigration purposes, a visa number is immediately available.

This means that the alien spouse who is already in the United States may right away apply for adjustment of status to lawful permanent residence by concurrently filing a Form I-485 application with the U.S. citizen spouse’s I-130 petition. An alien spouse who lives outside the U.S. will have to apply for an immigrant visa at a U.S. consulate abroad.

In order to be eligible for the immigration benefit as a spouse of a U.S. citizen, the marriage must have been entered into in good faith. The parties must present evidence that they have entered into the marriage with the intent of establishing a life together as husband and wife.

If the USCIS finds that the parties married for the purpose of circumventing immigration laws, the USCIS will find the marriage fraudulent and deny the immigrant petition filed for the alien spouse.

At the adjustment interview both the U.S. citizen and the alien spouse will have to appear before a USCIS officer. It is imperative that before the interview, the parties gather evidence showing the bona fides of their marriage. These include joint tax returns, joint bank account statements, lease agreements, joint mortgage statements, life insurance beneficiary designation, mail showing same residential address, cell phone bills, and photographs.

In some cases, the spouses may not have some of these documents available. Other couples might have to temporarily live separately because of their work while others are unable to get a joint lease or joint bank account because the alien spouse does not have a social security number.

In these situations, the spouses should look into presenting other documents which are readily available to them. These could include evidence of trips taken together such as hotel reservations, tickets and photos, joint gym and other memberships, bills or letters listing both spouses and addressed to both of them, among others.

In case the other spouse is not included in the checking account or if the other spouse is not included in the lease agreement, evidence may include a printout that the other spouse is issuing checks for half of the rent.

There are no rules as to how much evidence would be sufficient, so in case the USCIS officer is not satisfied with the evidence given or would much rather hear from the spouses themselves, the couple must be prepared to be questioned thoroughly.

At the interview, the couple must remember to always tell the truth and answer the questions without guessing or unnecessarily giving too many details.

The couple must also try to be calm and focused throughout the interview, which could take an hour or even more. Needless to state, adequate preparation by the spouses is valuable. A lawyer can help the spouses prepare for the interview in addition to representing them at the interview itself.

One of our former clients was the beneficiary of a petition by her U.S. citizen spouse, who was over 20 years her senior. At her visa interview, she gave a few inconsistent answers which led the consul to deny her immigrant visa application. She was not assisted by an attorney at that time. She later retained our firm and we helped her appeal the visa denial. We were able to establish the “bona fides” of their marriage and she eventually got her green card.

Easier Naturalization Test for Elder Applicants

Legal permanent residents applying for citizenship are required to pass the English literacy exam as well as the history and civics exam.

Applicants must demonstrate basic ability to speak, read and write English. The applicant’s ability to speak English is determined by the United State Citizenship and Immigration (USCIS) officer during his interview for naturalization.

In order to pass the reading section of the English literacy exam, the applicant must read one sentence out of three sentences correctly. To pass the writing section, the applicant must write one sentence out of three sentences correctly in English.

The applicant’s knowledge and understanding of U.S. history and government is also tested. The applicant will be asked up to 10 questions from the 100 civics questions listed. Out of the 10 questions, the applicant must answer 6 correctly in order to pass the test.

The officer considers many factors in administering the civics test including the person’s education, background, age, length of stay in the U.S., opportunity and efforts to learn civics among others.

Applicants who fail the English or civics test will be allowed to take a second test within 90 days of their first attempt. They do not need to pay an additional fee for the second test.

Not everyone is required to satisfy the English literacy requirement. Those exempted are applicants who are 50 years or older at the date of application and who have been permanent residents for 20 years as well as those who are 55 years of age or older and have resided in the U.S. as permanent residents for at least 15 years. They may take the exam in their native language.

Meanwhile, those who are 65 years or older and who have been permanent residents for at least 20 years are also exempted from taking the language test and may take a simplified version of the civics tests. With the simplified version of the test, the applicant will be asked up to 10 questions from 25 civics questions listed in their native language and they only need 6 correct answers to pass the test.

Reasonable accommodations are made for persons with physical disabilities. The request for accommodation must be made in the N-400 application for naturalization. The manner of conducting the test is modified such that a person whose disability makes it impossible for him to write, for example, may take the history and civics test orally.

Certain persons who are suffering from a physical disability or mental impairment may be exempted from taking the English and history and civics exam. Those exempt may include persons who suffer from Alzheimer’s, Parkinson’s disease, senile dementia, among others. Form N-648 completed by a medical doctor or a clinical psychologist who is “experienced in diagnosing” these disabilities must be attached to the N-400 application.

For persons who are physically unable to complete the N-400 application because of a physical disability or mental impairment may have a designated representative who will attest orally and who will need to submit documentary evidence supporting the person’s eligibility for naturalization.

Fictitious Marriage Certificate and the Marriage Fraud Bar

A “sham marriage” has been described as one entered into for the primary purpose of evading immigration laws where the husband and wife have no intent of establishing a life together. Although they may have had a real marriage ceremony, if they did not intend a real marital relationship and establish a life together as husband and wife, their marriage is a sham.

Entering into a sham marriage only for the purpose of obtaining immigration benefits is a serious matter that could have many consequences. Marriage fraud gives rise to potential criminal violations for both spouses, the penalties for which include imprisonment and fine. It could also lead to the deportation of the alien spouse as well as a bar on the approval of future immigrant visa petitions.

Section 204(c) of the Immigration and Nationality Act (INA) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or LPR and the prior marriage was found to have been entered for the purpose of evading immigration laws. It also bars the approval of visa petitions on behalf of aliens who have attempted or conspired to enter into a sham marriage.

In a recent case, the Administrative Appeals Office (AAO) reinstated the approval of a visa petition revoked on the ground of prior marriage fraud.

In that case, the petitioner is a restaurant which filed an I-140 petition on behalf of the alien beneficiary under the employment-based third preference for skilled workers as a cook. As required by law, the petition was filed with an approved labor certification.

Although the I-140 petition was approved, it was subsequently revoked by the Service Director for the petitioner’s failure to demonstrate that that the alien beneficiary met the minimum experience required by the labor certification.

The Administrative Appeals Office (AAO) affirmed the finding of the Service Director regarding the beneficiary’s qualification and further concluded that the revocation of the I-140 petition was required under Section 204(c).

The record showed that the beneficiary was previously named a beneficiary of a marriage-based petition. During his initial adjustment of status interview, the beneficiary indicated that the marriage certificate was fictitious and he never met or married the petitioner. The AAO considered this substantial and probative evidence which supported a reasonable inference that the beneficiary conspired to enter into a sham marriage.

The AAO, however, reopened the matter and upon review reached a different conclusion. It pointed out that submitting false documents showing nonexistent or fictitious marriage but never actually having entered into or attempted or conspired to enter into a sham marriage does not subject the alien to the marriage fraud bar. The alien, however, may be considered inadmissible due to fraud or misrepresentation but such determination would be made during the I-485 adjudication, not at the visa petition stage.

The AAO concluded that the marriage fraud bar under Section 204(c) was inapplicable in this case. As regards to the beneficiary’s eligibility, it allowed the petitioner to submit additional evidence and found that it had met its burden.

Parole Program for Families of Filipino WWII Veterans

The Department of Homeland Security (DHS) announced last October 2 that it was creating a new parole program allowing certain family members of Filipino World War II veterans to receive parole to enter the U.S. The new program was part of President Obama’s executive actions announced in November 2014 and was one of the recommendations in the July 2015 White House report, “Modernizing and Streamlining Our Legal Immigration System for the 21st century.”

The program would reunite qualified family members with their U.S. citizen or lawful permanent veteran family members in the U.S. An estimated 6,000 Filipino veterans who bravely fought for this country are still alive and living in the U.S., all of whom are now elderly and need their family’s care and support.

The DHS has not yet announced who would be eligible under the program but it is expected to include beneficiaries of family-based preference petitions such as F-1 (unmarried sons and daughters of U.S. citizens), F-3 (married son and daughters of U.S citizens), and F-4 (brothers and sisters of U.S. citizens).

Because of the visa backlog, Filipino visa applicants under the above categories have been waiting for decades for their visa numbers. According to the October 2015 visa bulletin the cutoff date for F4 is May 1, 1992, F3 is October 1, 1993 and F1 is June 1, 2001.

Eligible family members of the veterans would have to request parole under the program. Parole that is granted by the Secretary of Homeland Security for “urgent humanitarian reasons or significant public benefit” is used to permit an alien outside the United States to enter the country for a temporary period of time. The Secretary’s authority to grant parole is discretionary and decision will be made on a case-to-case basis.

A person granted parole status generally qualifies for a work authorization. It does not, however, grant the person a permanent right to remain in the U.S. nor does it lead to permanent resident status.

Immigrant rights advocates have long been fighting for the rights of Filipino World War II veterans who had been unjustly denied their benefits for many years before they were finally granted citizenship in the 1990s. Lawmakers such as Sen. Mazie Hirono has also proposed bills to expedite the visa process for the children of these veterans.

As aptly stated in her letter to the President, “As our World War II veterans age, they – like most elderly Americans – become more reliant on their families for care. Given that many Filipino veterans continue to experience difficulty obtaining veterans’ benefits for their service, it is particularly important that they have their children with them to assist with the care that they deserve.”

The DHS is expected to announce more details of the program in the coming months. It again warned against scammers and reiterated that they are not yet accepting requests for parole under this new program.

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