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Preparing for a Marriage-Based Immigration Interview

In a marriage- based adjustment interview, the couple must prove that the marriage was valid and in good faith from its inception and that it was not entered into for immigration purposes.

For couples who live together, have a common social life, do not have a huge age gap, have common interests and same cultural/ racial backgrounds, it is easier to get a petition approved. In other words, “conventional” marital situations usually get approved faster.

However, certain factors or situations or “red flags” could make USCIS want to take a close scrutiny at the marriage. Examples of these are multiple applications/ petitions filed by an applicant/ petitioner, short time between entry and marriage, unusual marriage history, children born during marriage to other parent, unusual or large age discrepancy between spouses, unusual cultural differences, low employment/ financial status of petitioner, and previous marriage to foreign nationals.

In one case, a foreign national who entered with a visitor’s visa remained for a period beyond the six-months given to him. After 5 years, he married a US citizen who filed an I-130 petition for her. During the interview, the officer noted that “there were no discrepancies in their answers” but that they had “no joint information”, neither of them worked and they lived with the US citizen’s mother. There were missing information about how they met that gave “red flags” to the officer.

It is best to go to the interview well prepared. The USCIS officer may ask questions about the data entries made on the I-130 petition. He may also inquire about how you go about your day-to-day life together. The officer may also inquire about the documents submitted with the petition so it is good if you will run through them a few times just to refresh your memory of the information you provided in the petition. Oftentimes, marriage-based interviews can make one falter or uncomfortable even if you have nothing to hide.

Practicing possible scenarios or interview questions is recommended. It can seem intimidating to be asked probing questions so it is advisable to prepare well.

It is not uncommon for USCIS officers to ask about personal details such as information about your relatives, your work and your friends. As long as you have nothing to hide and have a good faith marriage, do not be afraid when the immigration officer does that.

Lawyers’ role in the interview is limited to being observers and they will not be able to help you answer the questions. They, however, may ask the USCIS officer to clarify the question asked.

Be careful not to sign any document withdrawing the visa petition without consulting your lawyer. Do not sign any form stating that the marriage is fraudulent. At any point during the interview, you can ask to stop it and consult with your lawyer.

Paying attention to the question and answering that question is crucial. If the question demands a ‘yes’ or ‘no’ answer, answer it as such, then give an explanation if necessary.

It is of course unavoidable to make mistakes. While it is best to remember important dates like birthdays and anniversaries, oftentimes we find ourselves forgetting a few details. At any point during the interview, you can always go back and change or clarify your answer.

It is also okay to ask for clarification if you do not understand a question. Fully explain what you want to say. Say “I don’t know” or “I don’t remember” if such is the truth instead of making guesses, and don’t say a document exists when it doesn’t. Bear in mind that the officer may ask you to produce the said document later on.

DOJ Petitions For Rehearing of DAPA/DACA+ Case

It may not yet be end of the road for the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA+). On July 18, the Department of Justice filed with the US Supreme Court a petition to rehear United States versus State of Texas.

In its petition, the Department of Justice argued that “the Court should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

The petition underscored that although it is exceedingly rare, it is not a new practice for the Court to grant a rehearing. In the past, it has also granted rehearing in other cases especially when the court was unable to obtain a decision due to a vacancy. It was not also uncommon that upon reargument, a majority vote was arrived at.

The petition highlighted the immediacy of the resolution of the case. With the Supreme Court’s deadlock on the issue, the preliminary injunction issued on February 16, 2015 by US district court Judge Andrew Hanen which was later affirmed on appeal by the Fifth Circuit, stays. And although the Fifth Circuit is only made up of three states— Texas, Louisiana and Mississippi, the injunction nevertheless effectively halted the implementation of the two immigration initiatives introduced by Pres. Barack Obama back in 2014.

“The preliminary injunction prohibits the government from implementing the Guidance anywhere nationwide; there is no reason to expect that the district court would issue a permanent injunction that is narrower. Unless the Court resolves this case in a precedential manner, a matter of ‘great national importance’ involving an ‘unprecedented and momentous’ injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States,” the petition stated.

This is a welcome development and one that has given a glimmer of hope to potential recipients. However, the rehearing depends on the confirmation of a ninth judge which may happen after the November US Presidential elections. The Court could dismiss the case for lack of standing of the plaintiff or reverse the decision of the Fifth Circuit thus allowing DAPA/DACA + to be implemented. It could also affirm the Circuit’s decision and uphold the injunction and the case would go back to the district court whose decision could eventually be appealed to the Fifth Circuit and the Supreme Court a second time.

While waiting for this new development to take some steps forward, it must also be noted that the Supreme Court’s ruling did not affect the president’s authority to establish priorities for the enforcement of immigration laws and the grant of deferred action. Shortly after the SC made its decision, Obama clarified that undocumented immigrant who are otherwise qualified under DAPA and DACA+ and have no criminal conviction, are still among the lowest priority for deportation. The Department of Homeland Security (DHS) therefore still has authority to review and grant individual request for deferred action.

The decision also did not affect the DACA which was announced by Obama back in 2012. Those who meet the program’s criteria established in 2012 may continue to apply – both first-time applicants and the DACA recipients who seek to renew their deferred action and employment authorization.

Based on estimates, there are about four million undocumented immigrants who could have benefited from DAPA and DACA+. Of that figure, there are still those who can avail of other forms of deportation relief. In fact, according to the American Immigration Lawyers Association (AILA), 14.3% of DACA-eligible population may qualify for other forms of relief, even more permanent than DACA+ and DAPA.

Immigration Reform After the November Election

The November election may still be months away but already, several groups are laying the groundwork for a new comprehensive immigration reform bill. This came on the heels of the recent Supreme Court deadlocked decision on President Barack Obama’s immigration initiatives- the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the Expanded Deferred Action for Childhood Arrivals (DACA+).

Immigration rights groups and advocates are already meeting up with lawmakers to discuss said reforms. Even Republican senators are seriously mulling over passing an even better immigration reform bill purportedly because of pressure from their Latino constituents. They are now bent on giving immigration reform another shot.

So while the Republican presidential nominee, Donald Trump, is singing his hardline stance of putting up a “wall” and deporting illegal foreign nationals, some of his party mates are singing a different tune and possibly drilling a hole in said “wall” and allowing for a more lenient approach to the issue of immigration as they are thinking of reviving the 2013 Comprehensive Immigration Reform (CIR) bill.

It must be remembered that right after the 2012 elections, the Republicans and the Democrats came together to form what is now dubbed as the Gang of Eight, the bipartisan group composed of four Republicans (Sen. Jeff Flake, Sen. Lindsey Graham, Sen. John McCain and Sen. Marco Rubio) and four Democrats (Sen. Michael Bennett, Sen. Richard Durbin, Sen. Bob Menendez and Sen. Chuck Schumer).

The group was responsible for crafting a comprehensive immigration bill, fully known as the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, that would have granted undocumented foreign nationals the chance to gain legal status and eventually citizenship while at the same time, securing the border.

The bill also aimed at making the immigration system more responsive to economic needs by reducing visa backlogs and providing for a fast track permanent residence for US graduates with advanced degrees in science, technology, engineering and math (STEM) degrees.

Also in the bill were a more intensive use of the E-verify system by businesses to ensure that their workers have the legal right to work in the US, the creation of a W visa for low-skilled temporary workers, the replacement of the H2-A visa program for agricultural workers with a “blue card” for immigrants, and the placing of a higher cap for H-1B visas and imposing restrictions on companies that are found to be abusing the system. Provisions on the creation of a program to provide jobs to low-income and minimally-skilled American youth were also included.

The bill, however, did not make it in the House of Representatives. A number of provisions in the bill were objectionable to the Republicans. Concerns were expressed about the E-verify being vulnerable to hacks and database abuses and about the H-1B visa program being manipulated to reduce company costs by outsourcing cheaper foreign labor, resulting in more and more Americans having to train foreign nationals who will eventually take their jobs away from them.

Now, some members of the Gang of Eight want to do it again. “I’m going to take the Gang of Eight bill out, dust it off and ask anybody and everybody who wants to work with me to make it better to do so,” said Sen. Graham. Sen Jeff Flake also shares his enthusiasm. “We’ll do another autopsy after the next election and we’ll determine what we’ve got to do,” he said. He was referring to an in-depth review of the 2013 bill and see what went wrong.

Terminating Employment of H-1B Workers

Through the years, the H-1B visa program has become a way for American companies to fill their need for highly skilled workers. Through this program, US companies temporarily employ foreign nationals to work in specialty occupations or those requiring a bachelor’s degree or higher.

What happens however if after bringing in an employee into the company, the employer discovers that he is not a good fit or that he/she is not what the company needs? After all the tedious paperwork, does it have any recourse?

Any employer planning to terminate an employee on an H-1B visa status must follow not only the employment contract and applicable state and federal laws but also must adhere to regulations regarding H-1B employees. They must undertake a bona fide termination of the employment relationship, otherwise they could end up paying a considerable amount of money in back wages and other penalties.

The bona fide termination of employment involves a three-step process: (1) notifying an employee that his/her employment has been terminated; (2) notifying USCIS of the termination so that the petition could be revoked; (3) providing the worker with the reasonable cost of return transportation to his or her home country.

In one case involving a Filipino H-1B worker, the US Department of Labor (DOL) said that the employer failed to terminate its employment relationship on a certain date because it continued to market the non-immigrant to its clients. In the said case, the employer never sent an official termination notice to the worker. While it claimed to have written a letter terminating his employment, said letter was not offered in evidence. Moreover, even after the date that the employer claimed to have expressly told the worker that the employment was terminated, the former still continued to arrange for job interviews. Because of this, the first requirement was not fulfilled.

Next, the employer must notify USCIS that the employment relationship has ended. In the said case, it was stated that the applicable date for determining when the employer provided notice to USCIS was not the date the USCIS notified the employer that it had revoked the H-1B petition but the date the employer notified USCIS of its desire to revoke the petition.

Lastly, the employer must pay for the H-1B worker’s return trip home. An offer of return transportation is sufficient to fulfill this process.

It is important for employers to realize that failure to follow these steps could mean that they do not end their obligations of paying wages to their H-1B worker. Under the H-1B regulations, the employer must continue to pay wages unless the employer can prove by a preponderance of evidence that a bona fide termination was undertaken.

If the DOL determines that the employer committed a wage violation, it may also order the employer to pay back wages for the entire term of the LCA supporting the H-1B petition, calculated at the higher of the actual or prevailing wage. The H-1B employee may likewise be entitled to pre- and post-judgment interest on all back wages due.

In the same case, the DOL ordered the employer to pay back wages from February 15, 2010 to October 27, 2010 even if the employer notified the USCIS of the termination of employment in June 2010 and offered a plane ticket home on May 21, 2010. It was only on October 27, 2010 when the employer unequivocally put on notice that he was no longer an employee.

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