Seguritan US Immigration Articles

Green Card Is Possible Despite Petitioner’s Death

Is it still possible for the beneficiary to get a green card even if petitioner dies? Before Section 204(l) of Immigration and Nationality Act was enacted by Congress, the death of the petitioner automatically revoked the petition save for two instances. One was when the beneficiary was the widow or widower of a US citizen who might benefit as the surviving spouse only if they were married for at least two years or the so-called “Widow Penalty” and two, through reinstatement of an approved I-130 petition on humanitarian grounds.

With Section 204(l), those eligible for survivor immigration benefits expanded to include the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

Also, the “widow penalty” has been eliminated allowing widows of U.S. citizens and their children to self-petition even if the marriage was less than two years when the petitioner died.

In order to benefit from Section 204(l), the surviving relative must be residing in the U.S. at the time the petitioner or qualifying relative died and must continue to reside in the U.S. Residence for this purpose means the “principal actual dwelling place in fact, without regard to intent.” For petitions with multiple beneficiaries, it is not required that all beneficiaries meet the residence requirement. If one beneficiary meets the residence requirement, all other beneficiaries, such as the spouse and minor children of the principal beneficiary, may benefit from this section.

Section 204(l) seeks to place the beneficiary in the same position but for the death of the petitioner. The USCIS will adjudicate the petition and other related applications as if the petitioner or qualifying relative did not die. Thus, if the qualifying beneficiary is eligible under Section 204(l), the USCIS will consider applications for waiver of inadmissibility due to fraud or criminal conviction, for instance. The beneficiary must establish extreme hardship suffered by the qualifying relative if he were alive and must prove that he deserves the favorable exercise of discretion.

If an affidavit of support is required, a Form I-864 of a substitute sponsor must be submitted. The substitute sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old and must be related to the qualifying beneficiary. The substitute sponsor may be the applicant’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian.

If the beneficiary was residing outside the U.S. when the petitioner died, Section 204(l) will not apply so he has to request for a humanitarian reinstatement of the revoked family-based petition. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval. 

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.

Green Card for Ministers and Religious Workers

Religious workers may qualify for permanent residence as a special immigrant. They can apply within the United States through adjustment of status, or from abroad by obtaining an immigrant visa at the U.S. consulate. Typically but not always, the religious worker is already in the U.S. on R-1 or temporary religious worker status.

The beneficiary of the special immigrant worker (I-360) petition may be a minister or a religious worker. A minister is fully authorized and fully trained according to a religious denomination’s standards to conduct religious activities, such as a priest, minister, rabbi or imam.

The minister must be able to provide a certificate of ordination or similar documents, and documents reflecting acceptance of the beneficiary’s qualifications as well as evidence of completion of theological education in an accredited institution.

Religious workers, on the other hand, are those who are working in a religious vocation or occupation and are authorized to perform traditional religious duties. These include religious instructors, religious counsellors, and missionaries.

The beneficiary must have been a member of the denomination for at least two years immediately preceding the filing of the petition. He also must have been working as a minister or religious worker, either abroad or lawfully in the U.S., for at least two years immediately before the filing of the petition.

The job offered must be full time or at least 35 hours per week. The petitioner must show proof of how it intends to compensate the beneficiary, such as financial statements, bank statements, budget showing sums sets aside for salary. Other types of evidence that can be submitted include W2 forms of the beneficiary if already employed by petitioner, tax returns, and documents showing that a car or room and board will be provided

Submitting sufficient documentation is important. In one case where the petitioner only submitted pay records of a missionary’s salary for one out of the minimum 2 years, the USCIS found that the pay records did not show beneficiary’s continuous, full-time employment.

The petitioning organization must make several attestations in the petition. For example, it must establish that it is a non-profit organization by providing documentation of its tax exempt status from the Internal Revenue Service.

The petitioner must also state how many members there are in the denomination, how many petitions have been filed in the past 5 years, and how many employees are currently employed on religious worker status.

Several years ago, a study concluded that 33% of visas granted in the religious worker program were based on fraudulent information. Because of this, the USCIS now requires an on-site inspection of the petitioning organization before it will approve the I-360 petition. The site visit allows the USCIS to verify the existence of the petitioner’s organization. The site visits allow the USCIS to deter fraud by checking the existence of the organization, inspecting the records and interviewing personnel.

The religious worker visa program for non-ministers has been extended through September 30, 2015. Ministers are not affected by this sunset date.

Non-minister religious workers are subject to an annual cap of 5,000 but there is no cap for those entering the U.S. solely for the purpose of carrying on the vocation of a minister.

Great News for Spouse and Children of Green Card Holders

The August 2013 Visa bulletin shows that the Family-based 2A preference category which refers to spouses and children of lawful permanent residents (LPR) is current for all countries.

This means that starting August 1, those who are in the U.S. may file for adjustment of status while those who are processing their immigrant visa application abroad may be scheduled for visa interview.

In announcing the visa number availability, the Department of State said that the F2A preference category will be expected to remain current for several months. Although there is a large number of F2A registrants, the Department of State explained that it had taken this step to generate an increased level of demand since not enough applicants have been actively pursuing final action on their case. This will ensure that all of its available visa numbers will be fully utilized.

The Department of State also said that at some point during Fiscal Year 2014 which covers October 1, 2013 through September 30, 2014 the cutoff date could be retrogressed as a corrective action. Note that in July 2013, the cutoff date was October 8, 2011.

In light of this development, beneficiaries of family-based 2A petitions, regardless of their priority date, should file their adjustment applications. Those who have no I-130 petition should concurrently submit their I-485 and I-130 petition.

A pending adjustment application, will allow them to remain in the U.S. and work until their application is adjudicated. They may also be allowed to travel.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he/she was in the U.S. on December 21, 2000.

The other family-based categories will not advance significantly from the July 2013 visa availability. F1 preference which refers to unmarried sons and daughters of U.S. citizens will advance by 3 months worldwide (9/1/06) and by 6 months for the Philippines (1/1/01).

F2B (unmarried sons and daughter 21 or older of LPRs) will advance by only a month worldwide (12/1/05) and none for the Philippines (12/22/02).

F3 (married sons and daughters of US citizens) will advance by 2 months worldwide (12/8/02) and 1 week for the Philippines (12/1/92) while F4 (brothers and sisters of U.S. citizens) will advance by 1 month worldwide (6/22/01) and 3 weeks for the Philippines (1/8/90).

There will be little or no change in the employment-based categories (EB) except for India’s EB2 category which will advance from September 1, 2004 to June 1, 2008. EB1, EB2, EB4 and EB5 will remain current. The EB3 for skilled workers and unskilled workers will have the same cutoff date of (1/1/09) worldwide but will advance by 3 weeks to 10/22/06 for the Philippines.

Heavy Demand for EB-5 Investor Visa

Due to heavy demand, for the first time since the program began twenty years ago a cut-off date might have to be created for the employment-based fifth preference (EB-5) category. The backlog, if it does occur, will affect applicants from China and likely take effect next year. Currently, the EB-5 category is current and visa numbers are available to applicants from any country.

The Department of State made this announcement in the December 2012 visa bulletin and said that based on the current demand for EB-5 visa numbers, a cut-off date might be necessary sometime during the second half of fiscal year 2013.

The EB-5 visa category allows foreign nationals who can make substantial investments to become permanent residents. There are two ways by which one can become an EB-5 investor. The first is through the regular program which requires the investor to make a $1 million investment ($500,000 in a rural or high unemployment area) in a new commercial enterprise which will create at least ten full-time jobs.

The second way is through the pilot program which permits investments in designated regional centers that will create at least ten jobs, directly or indirectly. There are more than 70 regional centers today and most of them require a $500,000 investment. The regional center program was recently extended until September 30, 2015.

The alien investor must file an I-526 petition along with supporting documents showing the investment in the enterprise or regional center and demonstrating that the funds came from a lawful source. Once that is approved, he can file for a conditional green card. The condition will be removed two years after the investor’s admission as a conditional resident upon showing that the required number of jobs was created.

Congress allotted 10,000 visa numbers to EB-5 investors and 3,000 of those to investors in regional centers. Spouses and unmarried children under 21 are included in the count. But the program has drastically grown in popularity in recent years that a waiting line might be created next year. For example, in 2006 the USCIS received less than five hundred I-526 petitions. In 2012, it received over 6,000 petitions.

Most of the demand comes from Chinese nationals. Since the worldwide demand under EB-5 is not enough to reach the quota, unused visa numbers fall across to China, which would have been an oversubscribed country if not for that method of visa allocation. If the worldwide demand for EB-5 visa numbers goes up and the quota is reached, then China would become oversubscribed and a waiting line would be created.

A waiting line means that investors whose priority dates are prior to the cut-off date would not be able to immigrate until an immigrant visa is immediately available. An investor who is in the U.S. must be careful not to lose lawful status in order to be eligible for adjustment of status once a visa is available. Even if the investor has an approved I-526 petition, the investor cannot file for adjustment of status if a visa number is not yet available to him/her.

Right now, nationals of countries other than China can still look to the EB-5 visa as a viable option for permanent residence. In contrast with the family-based and other employment-based preferences where the delays range from several years to more than two decades, the EB-5 category with a total processing time of approximately one year is still one of the fastest routes to a green card.

Waiver of Joint Filing Requirement when Divorce is Pending

A marriage that is less than two years old when the alien spouse receives a green card results in conditional permanent residence for that spouse for a period of two years. Conditional residents and permanent residents have the same rights and restrictions under the law, except that conditional residents must have the conditions on their residence removed.

This is done through an I-751 petition jointly filed by the spouses with the USCIS, along with evidence of their valid marriage, within 90 days of the second anniversary of the alien spouse’s green card.

If the marriage does not last even for a period of two years and the I-751 is not signed by both spouses, the law allows the alien spouse to file a waiver of the joint filing requirement, which is also made on the I-751. The spouse can seek a waiver if the marriage was entered into in good faith but has been terminated through a final divorce or annulment.

But what if the divorce is not yet final, the 90-day window is running out, and the petitioning spouse refuses to sign the joint petition? The USCIS has clarified how it adjudicates I-751 petitions if the marriage has not been terminated but the spouses are legally separated or have initiated divorce or annulment proceedings.

If the divorce or annulment proceeding is still pending, the alien spouse can file the I-751 and request a waiver of the joint filing requirement. The adjudicator will issue a Request for Evidence (RFE) and give the alien spouse 87 days to give proof of the termination of the marriage. Usually the divorce will take place during this almost three-month period, which will allow the alien spouse to submit a copy of the final divorce decree.

Note that the alien spouse must still establish eligibility for the waiver by submitting evidence of a good faith marriage. This includes proof of joint ownership of property, such as a deed with both spouses’ names; joint tenancy, such as a lease agreement naming the spouses as tenants; and commingling of finances, such as income tax returns, bank statements, credit card bills and utility bills with the names of both spouses.

Birth certificates of children born to the marriage are a good evidence of the bona fides of the marriage. Affidavits of third parties, family pictures, documentation of vacations, communications addressed to the spouses may also be submitted.

If the alien spouse is eligible for a waiver and the divorce is already final, the I-751 petition will be approved and the conditions on permanent residence will be removed.

If the alien spouse cannot submit the divorce decree, or otherwise fails to respond to the RFE or to establish eligibility for the waiver, the I-751 will be denied and the alien’s conditional LPR status will be terminated.

The case will then be processed for issuance of a Notice to Appear in removal proceedings. At that stage, however, the alien spouse will have another chance to establish eligibility for a waiver before the immigration judge. The alien spouse can present a divorce decree, if already available at that time, or ask for continuance from the judge until the divorce is final.

On the other hand, if the petitioning spouse consents to sign the I-751 petition but a divorce or annulment proceeding is already pending, the alien spouse will receive an RFE giving him/her 87 days to submit the divorce decree and to request that the joint petition be treated as a waiver petition. This allows the alien spouse to request a waiver without having to re-file the I-751 after the divorce.

If the alien spouse submits decree and establishes eligibility for the waiver, the USCIS will grant the waiver and remove the conditions on the permanent residence.

But if the decree is not produced, the petition will be treated just like a joint petition. The adjudicator will look for sufficient evidence that the marriage was entered in good faith and determine if an in-person interview is needed.

If the adjudicator is satisfied that the marriage was bona fide, he/she will approve the I-751 petition and remove the conditions. Otherwise, the petition would be denied, the alien spouse’s conditional LPR status terminated, and the case is processed for issuance of a notice to appear in removal proceedings.

Bill Lifting Visa Caps Advances

The immigration bill easing the wait for green card for nationals of some countries will be introduced in the Senate soon. Republican Senator Chuck Grassley, who last year blocked the Fairness for High-Skilled Immigrants Act (H.R. 3012) which was overwhelmingly passed by the House of Representatives, has finally lifted his hold on the bill.

Senator Grassley put a hold on the bill because he believed the law did not protect high-skilled American workers. He has introduced legislation to reform the H-1B and L-1 visa programs.

A compromise was recently struck between him and Democratic Senator Chuck Schumer of New York. The bill would provide for increased oversight of the H-1B visa program. The Department of Labor would be able to better review labor condition applications and investigate fraud and misrepresentation by employers. There would also be annual compliance audits of employers who bring in H-1B workers.

H.R. 3012 eliminates per-country caps for the employment-based categories but not increase the over-all number of available immigrant visas or green cards. Its effect would be to shorten the waiting time of applicants from China and India, some of whom face waits of up to 70 years.

The bill would also adjust upward the per country limit on visas in the family-based preferences, from the current 7% limit to 15%. This would benefit nationals of the Philippines and Mexico who are waiting for a family-based green card.

The current visa system places an annual cap of 140,000 visas for employment based categories, and 226,000 for family-based categories. No more than 7% of that number is allowed to be allocated to any one country. Family members of the green card applicant are counted towards the number of available visas.

This current system is criticized for being unfair and arbitrary because it discriminates against nationals of countries where the demand for green cards is high and where many high-skilled immigrants come from. For the supporters of H.R. 3012, a first-come-first-served system in the employment preferences is the fair solution to the visa backlog.

However, since the bill would only redistribute existing visas and not add new ones, the elimination of the country caps would result in longer wait times for other countries.

For example, because of the most recent visa retrogression visa numbers in the EB-2 category (advanced degree holders and persons of exceptional ability) have become unavailable for nationals of China and India, and in July 2012 a cut-off date of January 1, 2009 was created for the Philippines, Mexico and other countries. Assuming that the retrogression continues, the two-year backlog faced by nationals of the Philippines, Mexico and other countries would increase as more immigrant visas are reallocated to China and India because of the operation of H.R. 3012. It is expected that by 2015, there would be a backlog for all countries in the employment-based categories as a result of the bill.

On the other hand, nationals of Mexico and the Philippines, the two most oversubscribed countries in the family-based categories, would face shorter waiting times for a green card, especially siblings and children of U.S. citizens.

H.R. 3012 passed in November 2011 with the support of 96% of the House of Representatives, a rare showing of cooperation in today’s deeply divided Congress. Businesses in the science and technology fields are ardent supporters of the bill.

Pending debate in the Senate, the fate of the bill is uncertain but, if the bipartisanship in Congress is any indication, it will likely be passed soon. President Obama endorsed the bill last year. GOP candidate Mitt Romney has expressed support for high-skilled immigration reform in general.

Abused Spouses and Children Have a Path to Green Card

Many men and women come to the United States in search of a better life but unfortunately find themselves in abusive relationships. The alien spouse and child in such a relationship are especially vulnerable because they lack lawful immigration status or work authorization.

If no I-130 petition was filed by the U.S. citizen (USC) or lawful permanent resident (LPR) parent or spouse, or a petition was filed but it was withdrawn, most of the time the alien spouse and child were left in legal limbo. Sometimes, the abusive spouse or parent would refuse to attend the interview which then led to the denial of the application or petition.

The spouse and children were left without status and, in most cases, there was no other way to get it. Some of them chose to just endure the physical, verbal or sexual abuse rather than leave the home or get help and, in the process, risk deportation.

Congress passed the Violence Against Women Act of 1994 and subsequent legislation to allow abused spouses and children to seek safety and independence. The last congressional extension expired September 30, 2011 but the Senate recently passed a bill to reauthorize the program. Money disbursed before last year’s expiration has been used for the current fiscal year.

VAWA enables the alien spouse and children subjected to abuse or extreme cruelty by a USC and LPR spouse or parent to file a petition on their own behalf, or to “self-petition”.

In a self-petition, the spouse or child becomes both the petitioner and the beneficiary. The spouse may be a current or former spouse. Unmarried children under 21 may self-petition if they were abused by a USC or LPR parent, but they may also be included in the parent’s petition as a derivative beneficiary.

Abuse includes physical abuse (violence or threats of violence) and sexual abuse (sexual assault or rape). Intimidation, verbal abuse, isolation, coercion, extreme jealousy and threats of deportation are forms of extreme cruelty.

The self-petitioner must prove that there was a valid marriage. The marriage must have been entered into in good faith, meaning that the spouses intended to live a life together and not just for immigration purposes.

Good moral character of the alien is also required to be established. Certain types of conduct that would otherwise bar a finding of good moral character are waivable if sufficiently connected to the abuse or extreme cruelty.

For instance, the abused spouse may obtain a waiver for her having engaged in prostitution in the past 10 years if that was part of the abuse or exploitation that she suffered in the hands of her abusive husband.

The alien must have lived with the abusive spouse in the U.S. or abroad, but the alien must be currently residing in the United at the time of the self-petition. If the alien is filing from abroad, the abuse must have occurred in the United States or the USC or LPR spouse must be a U.S. government employee or a member of the armed forces.

The VAWA self-petition may be filed despite remarriage of the alien spouse or death of the abuser. Even a bigamous marriage is no longer a bar to VAWA relief; in such case, the alien spouse is an “intending spouse” if the USC or LPR spouse did not terminate a prior marriage and the alien spouse was unaware of this at the time of marriage.

If the petition is approved and the abuser is a USC, the beneficiary spouse or child becomes immediately eligible for permanent residence. On the other hand if the abuser is an LPR, the beneficiary is placed in a preference list and granted deferred action which makes him/her eligible for work authorization until the priority date is reached.

Bill Eases Green Card Wait for Some Countries

There is both good news and bad news in the immigration bill that was overwhelmingly passed by the House of Representatives last November 29.

Because the bill seeks to eliminate per-country quotas for the employment-based categories and increase quotas for family-based applicants, but without adding new visas, a few countries will have shorter waiting times for a green card while other countries will see an increase in visa backlogs.

The bill, called the Fairness for High-Skilled Immigrants Act, was sponsored by Republican Congressman Jason Chaffetz of Utah along with known immigration hardliner Rep. Lamar Smith of Texas. It is on its way to the U.S. Senate and, once passed, President Obama is expected to sign it into law.

Current law places an annual visa cap of 140,000 for employment-based categories and 226,000 for family-based categories, and only 7% of that total number can be allocated to nationals of each country.

The bill will benefit employment-based applicants from India and China. Under the EB-3 category, the December 2011 cut-off dates are September 8, 2004 for China (April 22, 2003 for EB-3 Other Workers) and August 1, 2002 for India (July 22, 2002 for EB-3 Other Workers). For the EB-2 category, the cut-off date is March 15, 2008 for both countries. Their cut-off dates will significantly advance if the bill becomes law.

Since the bill does not create new visas, retrogression will worsen for other countries. The Philippines and the rest of the world will experience further retrogression in the EB-3 category, where the cut-off currently is January 15, 2006 (January 1, 2006 for Other Workers).

And although visa numbers are currently available to all countries other than India and China in the EB-2 category, their nationals would have to wait longer for a green card as a result of the bill.

By 2015, there would definitely be backlogs for all countries in both employment-based categories because under the bill there will only be one waiting line, and one cut-off date, for each category for all countries.

On the other hand, Filipinos and Mexicans stand to benefit from the changes in the family-based preferences. The 7% per-country cap will be raised to 15%, which could result in further retrogression for other countries. As more visas become available, the wait for a green card becomes shorter for many Filipino and Mexican families.

The need to attract talent and maintain competitiveness is the main reason behind the bill. Businesses that hire highly educated and skilled workers, particularly in science and technology, have been asking the government to ease the wait for employment-based green cards.

A significant number of employer-sponsored immigrants come from China and India but because of the annual cap and per-country limits their visa backlogs are larger. For example, according to a study an Indian professional sponsored for an EB-3 visa today would actually have to wait 70 years to get a green card because of the sheer number of visa applicants from India.

Not surprisingly, critics of the bill say that fairness to highly-skilled workers from China and India is unfairness to highly-skilled workers from other countries. By replacing one backlog with another, the bill is perceived to be favoring Chinese and Indian nationals at the expense of nationals of other countries.

It remains to be seen if Congress will at least make more visas available instead of just reallocating them. The real solution is comprehensive immigration reform but, given the current political climate, it seems unrealistic to expect one to be passed in the near future.

Abandonment of Permanent Resident Status

For many people, obtaining a green card is the fruit of a long and arduous struggle. But once they become lawful permanent residents (LPR), they sometimes make the mistake of thinking that they can freely travel in and out of the country. Still some believe that if they wait a few more years they are already eligible to become naturalized U.S. citizens.

It is easy to forget that lawful permanent residence gives one the privilege of being able to reside in the United States on a permanent basis. It is not a legal right but a privilege that can be revoked, which is why one should be aware of the requirement to maintain that status.

Most LPRs who reside or make frequent trips outside the U.S. do so because of employment, school, business, medical reasons, or other family members’ immigration status. They must remember, however, to maintain a continuous and uninterrupted intention to return to the United States because failure to do so may result in a loss of that status through abandonment.

Having the intent is not enough and the LPR must be ready to prove it through sufficient evidence. Some of the circumstances that may demonstrate ties to the United States include home ownership, maintenance of a U.S. bank account, family ties in the U.S., employment, business or properties in the U.S., and maintaining a U.S. driver’s license.

Generally, absence from the U.S. for more than one year is considered abandonment of residence. However, the test is not the length of time spent abroad but whether the LPR intended to be abroad only temporarily.

As a rule, a visit is temporary if it is for a relatively short period which is fixed by some early event or if the LPR had a continuous uninterrupted intention to return to the U.S. during the entire time of the visit. The LPR upon re-entry may demonstrate the reasons for staying abroad by showing legal and medical records, school records, employment letter, and affidavits, as may be applicable.

A reentry permit is a travel document issued by the USCIS to those who expect to spend lengthy periods of time abroad. It is generally valid for two years. The LPR will not be deemed to have abandoned status just because of the duration of his/her stay/s abroad. However, it is still not a guarantee of admission and the LPR may be asked to give proof that there was no abandonment of residence.

Maintenance of permanent residence is also important for naturalization purposes. One of the requirements in a citizenship application is continuous residence in the United States for at least 3 or 5 years. The applicant must not have, within the last 3 or 5 years, been outside of the U.S. for one year or more. Absences less than 6 months generally do not break continuous residence, while absences more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.

With or without a re-entry permit, and regardless of the length of stay abroad, classifying oneself as a nonresident alien for tax purposes raises a rebuttable presumption that an LPR has abandoned that status. Furthermore, LPRs should not overlook the requirement of filing U.S. tax returns even while living abroad.

Still, an LPR has certain rights, including the right to due process. For instance, where his/her status is challenged as having been abandoned, the LPR has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.

Preparing for a Marriage-Based Green Card Interview

Marriage to a U.S. citizen makes one an immediate relative for immigration purposes. Numerical visa limits will not apply and the alien spouse can adjust status immediately. On the other hand, marriage to a lawful permanent resident allows the alien to be a beneficiary of a second family preference petition, which has the shortest waiting times among all family-based visa categories.

The immigration benefit may be one of the reasons why some people marry. However, it may not be the only or the primary reason for the marriage.

The parties must have intended, at the time of the marriage, to establish a life together as husband and wife. If the spouses marry for the purpose of circumventing immigration laws, the USCIS will find the marriage fraudulent and deny the immigrant petition filed for the alien spouse.

Some of the red flags or indicators of a “sham marriage” are the following: short time between entry and marriage, unusual marriage history, large age discrepancy, unusual cultural differences, and low employment or financial status of the petitioner spouse.

When one or some of these factors are present, the spouses should gather documentation to prove the good faith of the marriage and be ready to address them at the interview.

The spouses must prepare evidence of their shared life. 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. 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.

In all cases, but more so where a marriage has red flags, the couple must anticipate a hard interview. The USCIS officer can ask a wide variety of questions ranging from how the couple first met and who was present at their wedding, to the color of the bedroom wall and what the other spouse’s favorite meal is. At times, they may even be called back for a second interview, particularly when the USCIS detects fraud in the marriage.

In one case that our firm handled, the client and her spouse could not provide joint tax returns and other primary evidence to show a good faith marriage. The USCIS officer, probably suspecting that the marriage was fraudulent, scheduled them for a second interview. The alien spouse through our firm eventually obtained her green card.

At the interview, the couple must remember to always tell the truth and answer the questions without guessing or unnecessarily giving too many details. At the same time, they must know when not to answer a question. For example, they should not respond if they do not know or remember the answer at all, or if the officer’s question assumes or misstates a fact.

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, perhaps considering also the large age difference between the spouses. She was not assisted by an attorney at the 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.

There are criminal and civil consequences if a marriage is found to be fraudulent. Aside from liability for false testimony and perjury, a person who knowingly enters into a marriage for the purpose of evading immigration law may face imprisonment of up to 5 years and/or a maximum fine of $250,000.

Any subsequent petition filed on the alien’s behalf is also barred from being approved if the USCIS finds that a marriage was entered into to evade immigration laws. This includes petitions filed by employers, future spouses, and other relatives. No waiver is available if there has been a finding of marriage fraud.

Even a previously-granted conditional residency may be terminated if the USCIS later determines that the marriage was fraudulent, and in that case the alien may be placed in removal proceedings.

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