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Immigration: Love, Marriage and the GreenCard by Shah Peerally, Esq.
Marriage is a very important concept and establishment in the United States, and as such, Congress has determined that a foreign national who marries a U.S. citizen spouse has the immediate ability to file an application for permanent residence under a first class preference. It is good to know that a permanent resident (holders of the “greencard”) can also file a marriage petition, however the waiting period for the priority date is long and therefore does not give the beneficiary the immediate possibility of get a greencard.
The first consideration in marriage cases is that the marriage must be bona fide (literally “good faith”) or a marriage with no intention of obtaining immigration benefits only. A bona fide marriage is based on the intention of the bride and groom to establish a life together at the time of their marriage. United States Citizenship and Immigration Services (USCIS), formerly INS (“Immigration”), has various criteria for determining whether a marriage was entered into in good faith. These include, but are not limited to, mixing of assets, joint leases, joint financial responsibilities, and photos. It is generally accepted that a couple knows each other’s innermost affairs. This is why it is very important to document your marriage in order to present evidence of your bona fide relationship. It is imperative that a person does not enter into a fraudulent marriage. A fraudulent marriage will penalize both the applicant (US citizen spouse) and the beneficiary (the person obtaining the benefits) and could even result in criminal charges, including jail time. Although Immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it is entered into in good faith.
In order to file a marriage petition, one must have a valid marriage. A valid marriage is one that is recognized in the state where it takes place. For example, if Ram marries Anita in Nevada and moves to California, that marriage will be recognized by Immigration. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and therefore Immigration will not recognize that marriage either. This is very important as you may not know until you file your petitions with immigration. Also, if the marriage takes place, for example, in Fiji, immigration will recognize the marriage as long as the marriage is recognized in Fiji. Note that a proxy marriage will not be recognized. A proxy marriage is a marriage where the bride and groom did not meet on the wedding day. The exception to this rule is if the marriage was consummated after the marriage by proxy.
Once married, the paperwork can either be processed in the United States, if the beneficiary (the one obtaining the green card) is in the United States, or be processed overseas through US consulates. In the case of processing files abroad, one can opt for a K3 visa to reduce the waiting time. Moreover, if no marriage has yet taken place, one can also bring his fiancé with a K1 visa. These visas are only available to petitioners who are US citizens. On the other hand, in order for the marriage matter to be processed in the United States (a process called adjustment of status), the beneficiary must have entered the United States legally, but for one day. This means that the person must have entered the United States with a valid visa. Those who entered by crossing the border are out of luck unless they have a provision under INA 245(i). This provision will require if any type of petition has been filed in favor of the beneficiary on or before April 30, 2001. There are many requirements to prove that you benefit from this provision of the law. You should speak to an experienced lawyer about your particular case. Also, if you have overstayed your visa, you should absolutely speak to an immigration attorney before pursuing any type of case.
During the adjustment of status process, you must not leave the United States unless you file and obtain an approved re-entry/conditional release permit. You should be aware that a parole or re-entry permit is not a guarantee of entry into the United States. It only allows you to board a plane and arrive at the United States port of entry where an immigration officer will determine whether or not you wish to allow you to enter the United States. If you have exceeded the length of stay by more than 180 days on your visa before applying for a green card, you absolutely must not leave the United States. Indeed you will be subject to a 3-year prescription. This prohibition will prevent the person not only from returning to the United States, but also from obtaining permanent residency. At this point, only a waiver can help you. It is important to know that exemptions are not easy to obtain. If you have exceeded the length of stay by more than 365 days before applying, again you should not leave as this time you will be subject to a 10 year ban. The same rule as the 3 year bar will apply, except the bar is 10 years now and the waiver is much harder to get.
Once you have filed your marriage petition, you will be summoned for a fingerprinting and interview within 3-8 months, provided the papers are properly filed. You are expected to attend this interview with your spouse and evidence that your marriage is bona fide (bona fide). At this stage, it is strongly advised to have a lawyer present with you during these interviews. This is because a licensed attorney will be allowed to sit with you during the interview. If the adjudicating officer is satisfied with the interview and the security check is finalized; he or she will tell you that he or she will issue a response soon. You may receive a response next week stating that your case is approved and a letter welcoming you to the United States as a permanent resident.
On the other hand, if Immigration gets proof or admission that the case is fraudulent, you could be arrested on the spot. At this stage, it is strongly advised to remain silent until your lawyer is present. In another scenario, if the agent is not satisfied, you could be called for another interview or they could refuse your file. Technically, if denied, they will give you a month before referring the case to the immigration judge. This will allow your attorney to potentially file a motion to reopen the case. If that fails, the case will be argued in immigration court. The Immigration Judge will review the case de novo (again) and make a decision. This means you have to prove your case or the government has to prove that your marriage was not bona fide. Again, it is highly recommended to hire an experienced attorney to move forward in such cases.
If the case is approved, the beneficiary will be issued a conditional residence if, at the time of the issuance of the green card, the marriage was less than two years. You need to check if you have conditional residency. Usually, a conditional residency green card will have an expiration date of 2 years from the date of issue. You will need to withdraw this conditional residency status beginning 90 days from the second anniversary of the issuance of the green card by filing a Form I-751. It is imperative to file the deletion otherwise your status will be terminated. Usually, if you are still married to your US citizen spouse, you will file a joint petition to remove these terms. If you can prove that your marriage was bona fide, you will receive a 10-year permanent residence card approximately 6 months after filing Form I-751. If immigration has reason to suspect foul play, they will initiate an investigation and may even call you and your spouse for a conditional residency removal interview. If they are satisfied, they will grant you unconditional permanent residence. Otherwise, they will refer the case to an immigration judge.
The question is what happens in the event of separation or divorce before or during the 90 days preceding the anniversary of the expiration of the conditional green card. Here are some potential scenarios.
Divorce finalized before filing removal of conditional residency.
In this case, the Waiver of Conditional Residency Waiver (Form I-751) must be filed even if the marriage has not reached two years. You will need to prove that your marriage was entered into in good faith and that the marriage was not broken by your fault. The process will generally follow the same path as when you file the case jointly with your spouse;
The second anniversary of the conditional green card has come to an end and the divorce is not finalized. In this case, you will need to finalize the divorce as soon as possible so that you can file the waiver on Form I-751; and
You were able to file your joint application for withdrawal of conditional residence and during this time your marriage is facing problems and you are separating and intending to divorce your spouse. You must notify USCIS and wait for the final divorce decree and refile a Form I-751.
There are many other permutations of situations regarding the removal of conditional residency, namely abusive spouses of US citizens or difficult situations. You should talk to your lawyer about your particular case.
There are other provisions in the law to protect beneficiaries, particularly in cases of abuse by US citizen spouses. In the event that one is abused by his/her citizen spouse, one will be eligible to file a request for protection VAWA (Violence against Women Act). Note that VAWA can also be used in favor of men. There are also situations where the US citizen spouse dies before the case is approved.
Because VAWA and other exceptional cases are very unique cases. We will try to cover them in our next article.
And remember, it is strongly recommended that you speak to an experienced licensed attorney before filing any type of immigration case.
The information in this article is provided for informational purposes only and should not be construed as legal advice on any subject. No recipient of the content of this article, customer or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking appropriate legal or professional advice on the particular facts and circumstances involved. with a lawyer approved in the recipient’s state. Shah Peerally is the management of the law offices of Shah Peerally located in Fremont CA. The law firm focuses on immigration law.
http://www.peerallylaw.com Phone: 510 742 5887 Email: firstname.lastname@example.org
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