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Prior Mother’s Sham Marriage Does Not Bar Stepchild Petition

When a US citizen petitions his spouse for a green card, he may also file a petition for his spouse’s child if the marriage creating the stepchild-parent relationship took place before the child’s 18th birthday. As immediate relatives of the US citizen, separate petitions must be filed for the spouse and stepchild.

Under immigration laws, a “child” is defined as an unmarried person under twenty-one years of age and includes a stepchild who was under 18 years at the time of the marriage creating the stepchild relationship.

To benefit from the status as stepchild, it has been held that “no qualification beyond a valid marriage creating the step-relationship should be imposed.” A previous ruling that the step-parent should have an “active parental interest” in the child was abandoned. The only requirement therefore is that the marriage between the child’s natural parent and step-parent is valid.

What if the I-130 petition for the spouse is denied, will this mean that the petition for the stepchild will also be denied?

In a recent case decided by the Board of Immigration Appeals (BIA), it was ruled that although the petition for a spouse is denied under Section 204(c), this does not prevent the approval of the petition filed on behalf of the spouse’s child as a stepchild. Section 204(c) 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 lawful permanent resident and the marriage was found to have been entered for the purpose of evading immigration laws.

In that case, the U.S. citizen married the beneficiary before her child’s 18th birthday. The U.S. citizen filed an I-130 petition for his spouse and her child as his stepchild. The petition for the spouse was denied by the Citizenship and Immigration Services because it found that the beneficiary had a prior marriage with another U.S. citizen and the marriage was a sham marriage. Thus, the petition of her current spouse was denied under Section 204(c).

The petition for the stepchild was also denied. According to the USCIS, since the petition for the spouse was denied, the petition for the stepchild was no longer valid.

The BIA disagreed, saying that Section 204(c) does not apply to the stepchild. It only applies to the beneficiary who was previously accorded the status of spouse based on marriage found to have been entered into for purposes of evading immigration law. It said that the stepchild was not a party to the previous marriage of the mother and his relationship to the petitioning stepfather was not related to the prior fraudulent marriage.

The denial of the petition for the spouse does not invalidate the step-child parent relationship and does not bar the petition filed on behalf of the stepchild. However, the BIA stressed that the marriage between the child’s natural parent and step-parent has to be valid. A sham marriage cannot create a valid step-child relationship. The BIA therefore granted the appeal and remanded the case to the USCIS to further consider the merits of the visa petition.

Documenting I-751 Petition To Remove Green Card Condition

An alien who receives a green card through marriage that is less than two years is granted a conditional residence status. The conditional residence status expires two years after it is granted. The petition to remove conditions on residence is made on Form I-751.

It is imperative that the petition is filed as failure to do so will result in the automatic termination of the conditional LPR status of the alien spouse. Once terminated, the case may be processed for issuance of a notice to appear in removal proceedings

If the petition is jointly-filed by the spouses, it must be filed within 90 days before the conditional residence status expires. The USCIS will process a late petition only if the delay is caused by extraordinary circumstances beyond the applicant’s control. If the marriage has been terminated through a final divorce or annulment, the alien spouse may file the petition with a request for waiver of joint filing. This is also made on Form I-751 and may be filed any time after the conditional residence status is granted but before removal from the U.S.

Evidence showing a bona fide marriage and continued marital union must be submitted to establish eligibility. The same is true for the alien spouse requesting a waiver of joint filing. He must submit evidence proving that the marriage was entered into in good faith and was not made for the purpose of obtaining residency.

Recently, the USCIS reviews I-751 petitions with more scrutiny. Evidence which the USCIS used to consider adequate is no longer sufficient to meet the standard of proof. More Requests for Evidence (RFEs) have been issued requiring more documents to prove good faith marriage and continued marital union.

Evidence include proof of common residence and shared responsibility, such as lease agreement naming both spouses as tenants, deeds and mortgages in both names; combined financial resources and joint responsibility for liabilities, such as joint checking and savings account statements, insurance policies showing the other spouse as beneficiary, joint federal and state tax returns and joint utility bills.

Note that proof of the existence of a joint account is no longer sufficient as USCIS requires account statements showing deposits or withdrawals for the period of marriage. Also, joint tax forms are no longer adequate as the USCIS requires proof of filing with the Internal Revenue Service (IRS).

Affidavits of persons who have personal knowledge of the marital relationship may also be submitted. Documentation of family vacations and photographs may also be included. Although these are not concrete evidence of bona fide marriage, the USCIS considers these helpful in adjudicating I-751 petitions.

If the director of the regional service finds the evidence sufficient, he may waive the interview and approve the petition. If not, the petition will be forwarded to a district director having jurisdiction and will assign an immigration officer who will conduct the interview.

Where the evidence is insufficient, it will deny the I-751 petition and the conditional residence status is terminated as of the date of the decision. There is no appeal from the decision. Proceedings for removal will be initiated and the alien may seek review of the decision in removal proceedings.

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