Category Archives: green card

5 Things to Do To Get Your Marriage-Based Green Card

Posted on March 18, 2015 | Comments Off on 5 Things to Do To Get Your Marriage-Based Green Card

Marrying a U.S. citizen is one of the quickest — but not necessarily the easiest — way to get a green card. USCIS will deny a marriage-based green card case if it does not receive sufficient evidence of a bona fide marriage and/or if it determines that the marriage is a sham.

A U.S. citizen’s filing of an I-130 petition with USCIS is the first step to helping the foreign national spouse become a permanent resident. A spouse who was lawfully admitted to the United States or who qualifies for 245(i), and is still in the U.S., may concurrently file an I-485 application to become a lawful permanent resident (green-card holder). One advantage is that the spouse does not have to depart the U.S. to apply for an immigrant visa at the U.S. Consulate.

Submitting the I-130 and I-485 together is known as the one-step petition/application. Normally, USCIS processes and adjudicates both at the same time. The foreign national cannot receive a marriage-based green card unless USCIS approves the I-130 petition.

Here are five things to do to get your marriage-based green card:

1. Enter into a bona fide marriage

USCIS will approve the I-130 petition only if it finds that the parties entered into marriage in good faith, i.e. intended to establish a life together at the time they married.  Normally, it must be proven by a “preponderance of the evidence” that the marriage is bona fide. Basically, this means the petitioner must show that it is “more likely than not” the marriage is real. [NOTE: When the marriage occurs while the foreign national is in removal proceedings, the standard of proof is higher: It must be shown by “clear and convincing evidence” that the marriage is real.]

Typically, USCIS expects a bona fide married couple to speak each other’s languages, live together, share common interests, co-mingle their finances, own joint property, and celebrate important events like holidays, birthdays and anniversaries.

A good faith marriage is one that is entered into for reasons other than for circumventing U.S. immigration laws. It could be arranged or freely chosen by the parties. It may be based on mutual love and affection, shared religious beliefs, a need for lifetime companionship, or a desire to raise children together.

A bona fide marriage is the opposite of a sham marriage, which is when the parties marry solely or primarily to obtain immigration benefits for the foreign national. USCIS’ Adjudicator’s Field Manual lists 10 factors indicating a marriage might be a sham:

  • Large disparity of age
  • Inability of petitioner and beneficiary to speak each other’s language
  • Vast difference in cultural and ethnic background
  • Family and/or friends unaware of the marriage
  • Marriage arranged by a third party
  • Marriage contracted immediately following the beneficiary’s apprehension or receipt of notification to depart the United States
  • Discrepancies in statements on questions for which a husband and wife should have common knowledge
  • No cohabitation since marriage
  • Beneficiary is a friend of the family
  • Petitioner has filed previous petitions on behalf of foreign nationals, especially prior foreign national spouses

If any of these 10 factors apply to your marriage, you can expect more scrutiny from USCIS.

2. Establish a life together and collect proof of this

Before the one-step petition is filed, the couple should take steps to establish a married life together and collect documents to prove they are committed to one another. Examples include:

  • Living together (joint residential lease or mortgage statement showing both names, driver’s licenses showing same address)
  • Buying major assets together (motor vehicle title, invoice for furniture)
  • Adding the spouse as a beneficiary to employer-sponsored benefit (life insurance policy, health insurance plan, retirement account)
  • Co-mingling assets and liabilities (joint bank account statements, joint credit card statements, joint tax returns)
  • Sharing household expenses (utility bills in both names)
  • Going on vacations together (travel itineraries, photographs)
  • Participating in shared activities (gym or club memberships)
  • Spending time with mutual friends (affidavits from third parties attesting to the bona fides of the marriage)

The Service will consider the parties’ conduct before and after the marriage to determine their true intent at the time of marriage.

Circumstances might require the couple to live apart temporarily, especially for work-related reasons. If the couple is not living together at the time they file for immigration benefits or at the time of their interview, they need to have a good explanation and gather reliable documentation showing they have a real marriage. Examples include:

  • Letters, emails and greeting cards you have exchanged with each other
  • Airline tickets, hotel bills and other receipts showing trips you made to see each other
  • Telephone records showing calls you made to each other
  • Photographs of the two of you together and with family and friends (or even with pets), taken over a considerable period at different events
  • Correspondences (e.g. bills, letters, cards) addressed to both of you at the same address
  • Receipts for gifts you bought each other
  • Birth certificates of (biological, adopted) children you have together, or evidence that you are trying to have children

3. Provide sufficient evidence of a bona fide marriage 

The Instructions for Form I-130 list the types of documents that may show the bona fides of a marriage. They include documentation showing joint ownership of property (e.g. mortgage, car title); documentation showing co-mingling of financial resources (e.g. joint bank account); birth certificates of children you have together; and affidavits from third parties confirming the bona fides of your marriage.

Your marriage certificate and proof of termination of any prior marriages (e.g. divorce decree or death certificate of previous spouse) only show that your marriage is valid. These documents are required, but are not sufficient to show the marriage is bona fide.

Filing a one-step petition is not just about completing the forms and submitting the filing fees. You also need to carefully document the bona fides of your marriage and give USCIS a sense of who you are as a couple.  The more documents you present to show your marriage is real, the easier it will be for the officer to approve your case.

Some types of documents are also more persuasive than others.  For example, birth certificates of your children, mortgage statements for your shared home, and life insurance policies showing one of you as the other’s beneficiary are much more persuasive than photographs of the two of you together, your joint residential lease , and your joint utility bills. They are harder to fake and are practically non-existent in sham marriages.

No matter the circumstances, you must avoid submitting any fabricated, false, forged or altered documents to USCIS. This could lead USCIS to find that you committed fraud or willful misrepresentation of material facts to obtain immigration benefits. This would require you to obtain a waiver of inadmissibility to obtain the green card (even if you managed to get the I-130 approved).

4. Take the interview seriously and prepare well for it

In marriage-based green card cases,  the USCIS field office in your jurisdiction normally interviews you to verify whether your marriage is bona fide.

The officer will place you both under oath at the start of the interview. In addition to getting specific information, the officer will be observing your demeanor and your interactions with each other to determine whether you have a real marriage.

Tell the truth at the interview, even if the answers are less than ideal. Giving false testimony or misrepresenting facts at the interview is grounds for a denial. Discrepancies between your and your spouse’s testimonies and inconsistencies within your testimonies also hurt your credibility. They will cause the officer to doubt the bona fides of your marriage.

At the interview, listen carefully to the USCIS officer’s questions and respond truthfully to the questions you’re being asked. Giving too many details about your courtship and embellishing stories about your shared life can make you less believable.

There’s no need to volunteer information that was not required on the application forms and is not being asked for at the interview. While you should not give misleading information to cut off a line of inquiry from the officer, you also don’t want to open up a line of questions that could unnecessarily bring out negative information.

If you don’t understand a question, ask the officer to repeat it or rephrase it. If you don’t recall information or you’re not 100% sure of your answer, let the officer know.  If you feel you’re being asked inappropriate questions, stay calm and avoid arguing with the officer. (You may ask to speak with a supervisor.)

If your first language isn’t English or if you’re not fluent in English, be sure to bring a qualified interpreter. Otherwise, you could misunderstand the officer’s questions or the officer could misunderstand your answers.

USCIS often interviews you together, but may interview each of you separately. When separate interviews are conducted, the officer will ask you each the same questions and compare your answers. If both of you tell the truth, it’s more likely that your answers will be the same or similar. Consistent testimonies help to persuade the officer that you have nothing to hide and that your marriage is bona fide.

Even bona fide married couples do not always observe, perceive or recall things the same way. For example, would you give the same answers if you were separately asked the following questions:

  • Where did you first meet?
  • How did you meet?
  • Where did you go on your first date? When was your first date?
  • How many people attended your wedding?
  • What did you to to celebrate your marriage?
  • Why did you get married?
  • Who proposed? Where were you when marriage was proposed?
  • What are your spouse’s work hours?
  • What is the color of the wall in your bedroom?
  • Which side of the bed do you sleep on?
  • Where did you go on your last vacation together?
  • Who woke up first this morning?

These are just a few of the many potential questions the officer may ask you. It helps for you and your spouse to prepare for the interview and make sure you’re on the same page when it comes to your relationship history and shared life together.

Your testimony at the interview can be the deciding factor in whether your case gets approved. Following the interview, the adjudications officer can approve the one-step petition, issue a Request for Evidence, have a site visit conducted at your claimed residence, conduct further investigation, or issue a Notice of Intent to Deny the petition.

5.  Get help from an experienced immigration attorney

You’re better off consulting an attorney from the outset, before you file your one-step petition. Full representation is best, but if you cannot afford this, you want to get limited representation or consult an attorney at least once.

An experienced attorney can determine whether you qualify for a marriage-based green card, review your application forms for accuracy and completeness, advise you on the types of documents to submit to prove the bona fides of your marriage, prepare you for what to expect at the interview, and represent you at the interview. An attorney can also discuss red flags in your case and counsel you on how to address them.

At the interview, a USCIS officer who suspects the marriage is fraudulent may give the U.S. citizen an opportunity to withdraw the petition and write a statement to that effect. Having your attorney at the interview will help protect your rights and make the process more comfortable.

A diligent attorney will take notes, ask clarifying questions, and object to inappropriate lines of questioning. The attorney will also be able to give you an assessment of how the interview went and advise you on follow-up matters.

Want to hear about 5 Things to Do to Get Your Marriage-Based Green Card? Check out the video series:

Conclusion

Entering a bona fide marriage, establishing a life together, submitting documentation of your shared life, successfully completing the interview, and seeking advice from counsel are five key steps to getting your marriage-based green card. If you have a real marriage, you really have little to worry about. It’s just a matter of convincing USCIS that your marriage is bona fide.

WARNING!

USCIS may deny a one-step petition if it receives insufficient evidence of a bona fide marriage and/or if it finds that the marriage is a sham. The immigration authorities may then file removal charges against the foreign national on several grounds, such as failing to maintain lawful non-immigrant status and committing fraud to obtain immigration benefits.

A sham marriage finding is also a permanent bar to obtaining an approval of any subsequent petitions for the foreign national. So the foreign national could never get a green card based on, for example, a second immigrant petition by a new spouse  or U.S. employer (unless the marriage fraud finding was overturned on appeal or on USCIS’ own reconsideration).

Marriage fraud is a crime. A person who knowingly enters into a marriage for the purpose of evading immigration laws is subject to imprisonment (up to 5 years), a fine (up to $250,000), or both.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, bona fide marriage, green card, marriage fraud, The Legal Immigrant - Immigration Blog

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Applying for DACA? Here are the pros and cons

Posted on February 18, 2015 | Comments Off on Applying for DACA? Here are the pros and cons

The Deferred Action for Childhood Arrivals (DACA) program doesn’t come close to the proposed DREAM Act, which offers undocumented immigrants, who came to the U.S. as children, a path to permanent residence or citizenship.

But DACA offers key benefits, including relief from removal and work permits for three years.

Qualified applicants must weigh the pros and cons before filing a DACA request.

 

Who Qualifies for DACA?

DACA was introduced in 2012 by then-DHS Secretary Janet Napolitano. You may apply for DACA by filing a Form I-821D along with your Form I-765 and documentation proving that you:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before the age of 16;
  • Have continuously resided in the United States since June 15, 2007;
  • Are at least 15 years old (unless you are in removal proceedings or have a final removal or voluntary departure order, in which case you may apply even if you are under 15);
  • Were physically present in the United States on June 15, 2012, and at the time of filing your DACA application with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor,or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The new DACA – which was expected to roll out on February 18 but was temporarily blocked by a federal court order – expands relief to those who:

  • Entered the United States before January 1, 2010, instead of before June 15, 2007;
  • Have lived in the United States continuously since at least January 1, 2010, rather than the prior requirement of June 15, 2007;
  • Are out of status as of November 20, 2014, rather than as of June 15, 2012
  • Are of any age (removes age limit requiring the person to be born since June 15, 1981, as long as the person entered the United States before age 16).

[UPDATE #1 : On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

What Are the Pros and Cons of Applying for DACA? 

PROS

Here are a few reasons to apply for DACA:

You get relief from removal and work authorization for three years

Previously, the deferred action period and work permits under DACA were issued in two-year renewable periods. As of November 25, 2014, these benefits are extended to three years and may be renewed as long as DACA continues.

Those who are currently in removal proceedings, have a final removal order, or have a voluntary departure order can also file for DACA. If you are in immigration detention or in the custody of Immigration & Customs Enforcement (ICE), you must first obtain your release as a DACA-qualified applicant. If you are released from custody, you may then file your DACA request with USCIS.

You are in authorized stay and are not accumulating unlawful presence

DACA is a form of authorized stay in the U.S. This means you are not accumulating unlawful presence during the deferred action period.

Normally, you begin accumulating unlawful presence in the U.S. once you turn 18, which may bar you from reentry to the U.S. for three or ten years (even if you otherwise qualify for an immigrant visa or green card). If you are unlawfully present in the U.S. for more than 180 days but less than 1 year, you are barred from re-entering the U.S. for three years. If the unlawful presence is 1 year or more, you are barred from re-entering the U.S. for 10 years.

If you came to the U.S. illegally, you must usually depart the U.S. to consular process your immigrant visa based on marriage to a U.S. citizen or permanent resident.  The 3-year/10-year bar kicks in once you depart the U.S. to attend your immigrant visa interview at the U.S. Consulate abroad. You would then need to obtain a waiver by showing your absence from the U.S would cause “extreme hardship” to your  U.S. citizen or permanent resident spouse. The waiver can be very difficult to get due to the strict requirements.

You will continue to accrue unlawful presence while your DACA request is pending, unless you are under 18 at the time of the request. If you are under 18 when you submit your request, you will not accrue unlawful presence while the request is pending, even if you turn 18 and the request is still pending. If you receive DACA, you will not accrue unlawful presence during the deferred action period.

Although deferred action does not give you lawful nonimmigrant status or immigrant status in the U.S, it helps protect you from accruing unlawful presence, which carries immigration penalties. Having authorized stay in the U.S. during the deferred action period can be especially beneficial if you were to later qualify for an immigrant visa.

You may travel outside the United States with advance parole

As a DACA recipient, you may apply for advance parole to leave the U.S. and return legally in DACA status. But you must first apply for advance parole by filing a Form I-131, Application for Travel Document.

USCIS will grant advance parole only if your travel abroad is for:

  • humanitarian purposes, including travel to obtain medical treatment, attending funeral services for a family member, or visiting an ailing relative;
  • educational purposes, such as semester-abroad programs and academic research, or;
  • employment purposes such as overseas assignments, interviews, conferences or, training, or meetings with clients overseas.

Advance parole allows you to leave the U.S. for these purposes, but is not to be used for vacation or for general travel.

You receive social benefits and economic opportunities

In general, DACA recipients have more economic opportunities and are more socially integrated than those who do not qualify for DACA. With authorized stay and work permits, they find it easier to get a new job, open their first bank account and receive their first credit card.

Getting a driver’s license is a key benefit, especially for young immigrants. Currently, otherwise-eligible DACA recipients can apply for a driver’s license in every state except Nebraska.

Some state laws and college systems also allow certain students to pay in-state tuition, regardless of their immigration status.

A Star Tribune article states “For many who did apply, DACA has paid off. A national survey of DACA recipients last year found that almost 60 percent obtained a new job, 45 percent increased their earnings, about half opened their first bank account and 57 percent got a driver’s license.”

Your information, for the most part, will not be shared with enforcement agencies and will not be used against you 

USCIS has stated that it will not share information provided in a DACA request with ICE and U.S. Customs and Border Protection (CBP) for the purpose of removal proceedings against you or your family members, unless your case involves fraud, a criminal offense, a threat to public safety or national security, or other exceptional circumstances.

CONS

Here are a few drawbacks to consider when applying for DACA:

You have no path to permanent residence or citizenship in the U.S.

Past DREAM Act proposals includes a path to permanent residence and citizenship in the U.S. The DREAM Act is a legislation that must be passed by Congress to become law.

Meanwhile, DACA offers only work permits and relief from removal for a temporary period, but no path to lawful immigrant status. It is not new law.

Basically, DACA is a program or policy directing DHS on how to enforce immigration laws. Deferred action existed long before DACA, but DACA provides a formal process for qualified applications to seek this temporary relief. Because it was made available by an Obama Administration policy, it could easily end under a new U.S. President.

You have no lawful immigration status in the U.S. 

As a DACA grantee, you are considered lawfully present in the U.S., but you still have no lawful nonimmigrant or immigrant status.

Lawful immigration status refers to an immigration benefit such as lawful permanent residency (green card) or temporary visa classification, such as H-1B worker, B-1/B-2 visitor, or F-1 student.

Employers and state officials sometimes believe your lack of immigration status means you are unlawfully present. You might be wrongly denied a job, driver’s license, etc. because you have DACA status, instead of lawful immigration status. Although deferred action gives you authorized stay, your lack of immigration status can make it tougher for you to get social benefits and economic opportunities.

You have no right to travel and return to the U.S. based on DACA grant alone

DACA gives you no lawful status that allows you to travel abroad and return to the U.S. Instead, you must first pay the  filing fee for advance parole (travel document) and file the Form I-131 with USCIS. If you depart the U.S. without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Being approved for advance parole does not guarantee that you will be able to return to the U.S. At the port of entry, the Customs and Border Protection (CBP) officer may deny your entry if he finds you are “inadmissible” due to health or security reasons or other factors.

If you leave the U.S. after being ordered deported or removed, and your removal proceeding has not been reopened and administratively closed or terminated, your departure (even with advance parole) could mean you followed through with the deportation or removal.

Your opportunities to integrate socially and economically are temporary

Congressional Republicans seek to defund DACA. House Republicans attached amendments affecting the 2012 deferred action program to the DHS 2015 fiscal year funding bill. While the bill passed the House, it has been blocked by Senate Democrats.

DHS has also halted the rolling out of the expanded DACA on February 18, due to a federal district court order temporarily blocking its implementation. The new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would extend to certain parents of U.S. citizen and lawful permanent residents and was expected to kick off in May 2015, is also on hold.

On Monday, U.S. District Court Judge Andrew Hanen in Texas sided with the Texas-led coalition of 26 states that filed a lawsuit to block the implementation of the expanded DACA and the new DAPA.

While applicants can continue to file and renew requests under the old DACA, the future of this program is uncertain. And the expanded DACA and new DAPA are being challenged even before kick off.

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

Your information may be shared with enforcement agencies and may be used against you in certain situations

USCIS may share the information in your DACA request with national security and law enforcement agencies, including ICE and CBP, for purposes other than deportation, including to identify or prevent fraudulent claims, for national security purposes, or for the investigation or prosecution of a crime.

If USCIS denies your DACA request and your case involves a criminal offense, fraud, or a threat to national security or public safety (or exceptional circumstances), USCIS will refer your case to ICE. You may then face the risk of being removed from the U.S.

Persons who have been convicted of certain crimes or apprehended at the border or at ports of entry while trying to unlawfully enter the U.S. are considered to be enforcement priorities. Other enforcement priorities include persons suspected of terrorism, espionage, or abusing the visa or visa waiver programs. To a lesser extent, persons who have been issued a final removal order after January 1, 2014 are also enforcement priorities.

Consult an Experienced Immigration Attorney Before You Apply for DACA

Overall, the benefits and protections you get from applying for DACA outweigh the risks and limitations.

Before you request DACA, you should first consult a reputable attorney or get authorized legal assistance to help you weigh the pros and cons.

Beware of immigration services that are not authorized to offer legal advice. For help on how to avoid and report immigration scams, go to uscis.gov/avoid-scams or uscis.gov/es/eviteestafas

[UPDATE #1: On June 23, 2016, the U.S. Supreme Court issued a 4-4 opinion in United States v. Texas that allows the temporary injunction to stand. The new DACA is still unavailable as a result.]

[UPDATE #2: On September 5, 2017, the Trump Administration announced the rescission of the DACA program. No initial applications filed on or after this date will be considered. Renewal applications filed by DACA holders, whose benefits expire on or before March 5, 2018, will be considered up October 5, 2017.]

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

Posted on February 9, 2015 | Comments Off on Why Lying About Being a U.S. Citizen Can Stop You from Becoming a Permanent Resident or Getting a U.S. Visa

If you lie about being a U.S. citizen to work, vote in elections, or receive public benefits in the United States, this could stop you from getting a green card or U.S. visa. It can also get you deported from the United States, even if you are already a permanent resident.

A false claim to U.S. citizenship creates a lifetime ban to obtaining permanent residence through a family or employment-based petition.

While a false U.S. citizenship claim seems relatively harmless, it is one of the most serious forms of fraud or willful misrepresentation to obtain immigration benefits. It can also have more dire consequences than a criminal conviction.

If getting a green card or U.S. visa is on your wish list, you should avoid lying about being a U.S. citizen to gain immigration benefits or any benefits under federal or state law.

When Does a False U.S. Citizenship Claim Arise? 

Multiple Situations

False U.S. citizenship claims arise in multiple situations. They include registering to vote in a local, state, or federal election when only U.S. citizens are allowed to do so; claiming to be a U.S. citizen on a job, college, student loan, or mortgage application; and stating that you are U.S. citizen to obtain any benefit for which U.S. citizenship is required.

Most Common Situation: I-9, Employment Eligibility

False U.S. citizenship claims most commonly arise when the non-citizen completes and signs the Form I-9, Employment Eligibility Verification, upon being hired for a job.

All U.S. employers must use the I-9 to document verification of the identity and employment authorization of each new employee (both citizen and non-citizen) hired after November 6, 1986, to work in the United States.

In the Employee Information and Attestation section of the Form I-9, the employee is required to check one of four boxes to show why he is eligible to work in the United States. Section 1 of the Form I-9 (Rev. 03/08/13) states:

I attest, under penalty of perjury, that I am (check one of the following):

  • A citizen of the United States
  • A noncitizen national of the United States (See instructions)
  • A lawful permanent resident (Alien Registration Number/USCIS number) __________
  • An alien authorized to work until (expiration date, if applicable, mm/dd/yy) ________. Some aliens may write “N/A” in this field.

Wrongfully checking that you are a citizen of the United States generally amounts to a false U.S. citizenship claim.

The use of a U.S. citizen’s social security number or other identification, or the use of a fake U.S. birth certificate or a fake social security card (that contains no employment restrictions) is further evidence of a false U.S. citizenship claim.

Employers must record the document title (e.g. driver’s license and birth certificate) on the Form I-9. They may, but are not required, to retain copies of the documents.

Employers must retain a Form I-9 for all current employees. They also have to retain a Form I-9 for three years after the date of hire, or one year after the date employment ends, whichever is later.

When you seek to adjust to permanent resident status, you need to complete the Form I-485 and file it with U.S. Citizenship & Immigration Services (USCIS). [UPDATE, JANUARY 2018: In prior versions of the I-485, there was no question on whether you have ever misrepresented being a U.S. citizen. But the newer version of the I-485, starting in June 2017, has questions on whether you ever worked without employment authorization, made a false claim to U.S. citizenship, or engaged in unlawful voting.]

Those who are applying for an immigrant visa at the U.S. Consulate must complete and file the DS-260, online immigrant visa application. The DS-260 ask questions about your employment history.

At your I-485 or immigrant visa interview, the adjudication officer could ask whether you have ever made a false claim to citizenship. The officer may also ask about what documents or information you presented to the employer to be eligible to work. This line of inquiry is not very common, but is generally relevant.

Although the employer — not the employee — is responsible for keeping the I-9 records, the officer could request you produce the I-9s from past employers or current employers as a condition for approving your immigration case.

Some USCIS officers might also subpoena the I-9 records from your prior employer or current employer. If the employer is not under investigation for violating I-9 requirements or hiring unauthorized workers, it might refuse to hand over the I-9 records. But many employers simply forward the available records to USCIS upon request, without objection.

If the citizen box is checked on the I-9, the officer may find that you made a false claim to U.S. citizenship and therefore do not qualify for a green card or immigrant visa.

The U.S. Supreme Court, in Chamber of Commerce of the United States v. Whiting, stated that the I-9 and any information contained in it or attached to it may not be used for any purpose other than for enforcing the Immigration Reform and Control Act of 1986 (IRCA) and other specified provisions of federal law. False U.S. citizenship claims did not make a person inadmissible or removable until 1996, which was after IRCA was passed in 1986.

But federal courts, including the Eighth Circuit Court of Appeals, have found that an I-9 form can serve as evidence of a false claim to U.S. citizenship, particularly in removal proceedings.

What are the Possible Consequences of a False U.S. Citizenship Claim? 

Since September 30, 1996, non-citizens who made false U.S. citizenship claims “for any purpose or benefit” under the Immigration & Nationality Act (INA) or any federal or state law are permanently inadmissible. This means you have a lifetime bar to obtaining a family-based or employment-based green card or immigrant visa.

False U.S. citizenship claims not only makes a foreign national inadmissible to the U.S, but also removable from the country. A non-citizen who is in the U.S. and who is found to have lied about being a U.S. citizen to obtain immigration benefits or other benefits under any federal or state law may be placed in removal proceedings before the Immigration Court.

Unlike those who are convicted of crimes involving moral turpitude or those who engaged in fraud or willful misrepresentation to obtain immigration benefits, a person who is found to have made a false U.S. citizenship claim does not qualify for an immigrant waiver to overcome this permanent bar. There is no such waiver available, even if the person has a U.S. citizen spouse who will suffer extreme hardships without his presence in the U.S.

(NOTE: A special authorization for admission as a  nonimmigrant for false claims of U.S. citizenship is available under section 212(d)(3)(A) of the Immigration & Nationality Act.  Whether you qualify for the nonimmigrant visa itself is a separate issue.)

* * *

It can be tempting to falsely claim U.S. citizenship when there is no other way to find employment or gain entry into the U.S.  But this could later cause harm to your green card or immigrant visa application if, for example, you marry a U.S. citizen or find a U.S. employer who is willing to petition for you.

If you are already a permanent resident, a false claim to U.S. citizenship can prevent you from establishing good moral character for naturalization and subject you to removal from the United States.

False U.S. citizenship claims do not prohibit foreign nationals from applying for certain types of relief, such as a U visa and asylum (which can lead to permanent resident status) and Form EOIR-42B, cancellation of removal (which results in permanent resident status). But these forms of relief carry strict eligibility requirements. For example, an Immigration Judge may find that a Cancellation of Removal applicant who makes a false claim lacks the “good moral character” necessary to obtain this relief.

If you ever want to become a permanent resident through a family or employment-based petition, your best choice is to avoid making false claims to U.S. citizenship for benefits under immigration law or benefits under federal or state law. The potential defenses are sometimes hard to establish and don’t always work.

For more information, read:

Defenses to INA 212(a)(6)(C)(ii) Inadmissibility (False Claim to U.S. Citizenship)

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Posted on January 19, 2015 | Comments Off on How to Avoid Unintentionally Abandoning Your U.S. Residency: 6 Critical Steps

Becoming a permanent resident of the U.S. is not a quick process.

Yet green card holders sometimes take their status for granted and lose it through unintentional abandonment.  This results from a host of reasons, such as staying outside the U.S. too long, being employed in the home country, and filing tax returns as a non-resident.

You may voluntarily and officially give up your U.S. residency by turning in your green card and filing a Form I-407, Record of Abandonment of Lawful Permanent Resident Status, with the appropriate U.S. Consulate or USCIS office.

But if you want to keep your lawful permanent resident (LPR) status, you should take these 6 critical steps to avoid unintentionally abandoning it:

1. Keep each trip abroad short (six months or less) 

Being a permanent resident gives you freedom to travel overseas and re-enter the U.S. with your green card and a valid passport, without needing a visa.

Short visits outside the U.S. lasting less than six months are usually not a problem. Frequent travelers should return to the U.S. as often as possible and within six months of any departure.

Trips outside the U.S. lasting six to 12 months bring greater scrutiny and suspicion that you abandoned your residency. And trips outside the U.S. lasting more than 12 months lead to a presumption that you abandoned your residency. You will then have to convince the U.S. Customs & Border Protection (CBP) officer or the Immigration Court that you did not abandon your residence.

If you are absent from the U.S. for six consecutive months or more, you risk losing your green card when you try to reenter the U.S. This is especially true when you have multiple, prolonged absences or when you have received prior warnings from a CBP officer at the port of entry.

2. Make sure your visits abroad are fixed and temporary and that you return to the U.S., as your permanent home, for extended periods 

Coming back to the U.S. before you hit the six to 12-month mark of being absent is not a surefire way to preserve your residence. The length of time abroad is not the only factor to consider.

When your trips abroad (particularly to your home country) are frequent, you run the risk of being subject to scrutiny by the CBP each time you seek re-entry. Regular, extended trips outside the U.S., followed by relatively short stays, will cause CBP to doubt whether your true residence is in the U.S. The CBP may question  you about your travel patterns, employment history and other factors to determine if you just return to the U.S. to hang on to the green card, but do not really have a permanent home in the country.

Returning to the U.S. within one year is necessary to maintain LPR status and to re-enter the U.S. without a reentry permit. But such a return is not always enough to show that you did not abandon your residence.

Following a trip abroad, a permanent resident must be returning to an unrelinquished residence in the U.S. In Matter of Kane, the Board of Immigration Appeals found that a Jamaican citizen abandoned her LPR status when she spent 11 months of every year living in her native country and returned to the U.S. for one month every year.

LPR status is granted to those who intend to make the U.S. their permanent home. When you leave the U.S. with the intent of making another country your true home, you in effect abandon your U.S. residency.

The purpose of your leaving the U.S. must be temporary; your visit abroad must have a fixed timeline; and you must intend to return to the U.S. as a place of permanent employment or as an actual home.

A visit abroad of any length will be considered temporary and fixed if it will end on a certain date (e.g. temporary placement abroad by your U.S. employer; “round the world” travel; professional training; attendance at school; sabbatical) or when a certain event takes place (e.g. travel to care for a sick relative; travel to liquidate assets or business abroad; travel for a work project with a clear end date).

Be prepared to show proof that you intended to return to your U.S. residence, especially if your trip abroad lasted six months or more.

3. Maintain your ties to the U.S. 

Any absences from the U.S. – even if is less than one year – may be considered in deciding whether you abandoned your residence.  Permanent residents must maintain family, employment, financial and property ties in the U.S. and have documentation to prove these ties.

Proof that you did not abandon your U.S. residency includes:

  • Evidence of your filing U.S. income tax returns for the past year(s).
  • A valid U.S. based driver’s license
  • The name and address of your U.S. employer and evidence that it paid your salary.
  • Evidence of ownership or leasing of property, such as a home, in the U.S.
  • Evidence of ownership of assets, such as a bank account, in the U.S.
  • Evidence of immediate family members, such as a U.S. citizen child or spouse, in the U.S.
  • Evidence of registration or attendance at a U.S. school.
  • Evidence of professional affiliations or club memberships in the U.S.

4. Minimize your ties to your native country or to a third country

If you maintain strong ties to another country and stay there frequently or for extended periods, you could be found to have abandoned your U.S. residence, based on the totality of the circumstances.

Avoid actions that strengthen your ties overseas, such as extended visits to family members in your home country; owning property in your home country; working abroad for a foreign employer;  being self-employed or running a business in your home country; voting in foreign elections; running for political office in a foreign country; and failing to file your U.S. income tax returns or filing them as a non-resident alien.

5. Get a reentry permit or a returning resident visa for admission to the U.S. following a long absence

Your green card becomes technically invalid for reentry into the U.S. if your trip abroad lasted one year or more.  While your green card can be used for reentry following an absence of less than one year, you may be treated as seeking admission to the U.S. if you were gone for six months or more.

A reentry permit is a must-have for permanent residents who plan to stay outside the U.S. for one year or more, but want to keep their U.S. residency. A reentry permit is also recommended when each stay abroad lasts less than one year, but the permanent resident travels frequently and spends considerable time outside the U.S.

To get a re-entry permit, you must file a Form I-131, Application for Travel Document, with USCIS and complete the biometrics (photo and fingerprinting) before you depart the U.S. If you leave the U.S. while the application is still pending, you may request USCIS to send the reentry permit to you through a U.S. Consulate or USCIS office overseas.

A re-entry permit helps to show you did not intend to abandon your status. It also permits you to apply for admission to the U.S. following an absence of up to 2 years without needing a Returning Resident (SB-1) immigrant visa.

If you did not apply for a re-entry permit before you left the U.S for a period lasting one year or more, you should apply for a Returning Resident visa at the U.S. Consulate. The consular officer will grant the visa  if he finds that you departed the U.S. with the intent of returning to an unrelinquished U.S. residence, and your stay abroad was for reasons beyond your control and for which you were not responsible.

With a re-entry permit, you may not be found to have abandoned your residence based only on the length of time spent abroad. The re-entry permit, however, does not guarantee retention of LPR status or prevent a finding of LPR abandonment.  You may still be found to have abandoned your residency based on other relevant factors, such as weak ties in the U.S. and strong ties overseas.

6. Be prepared to explain the temporary purpose of your trip abroad and avoid signing a Form I-407 at the port of entry

Following any trips abroad, permanent residents need to present a valid green card  to the CBP officer at the U.S. port of entry. Based on travel history, employment ties, etc., the CBP may find that a permanent resident is really living outside the U.S. and has abandoned his U.S. residency.

If the CBP believes you abandoned your LPR status, they can take steps to have it officially revoked or cancelled. The officer may give you an opportunity to withdraw your application for admission or grant you Deferred Inspection.

If you wish to keep your U.S. residency, it’s better to avoid withdrawing your request for re-entry. Instead, explain the temporary purpose of your trip abroad and the compelling circumstances that led you to stay overseas as you did.

If the CBP still believes you abandoned your residency, it  may confiscate your green card, defer your inspection, and issue a parole document temporarily allowing you into the U.S. on the condition that you report to them at a scheduled date with proper documentation proving you reside in the U.S. Being paroled into the U.S. and receiving Deferred Inspection is short of lawful admission as a permanent resident.

At your Deferred Inspection appointment, the CBP may agree that you reside in the U.S. and give you back your green card. But if it finds you do not maintain a permanent home in the U.S., you may be detained in the custody of U.S. Immigration & Customs Enforcement (ICE) or released conditionally, and placed in removal proceedings before the Immigration Court.

In removal proceedings, ICE has the burden to prove by clear and convincing evidence that you abandoned your residence. An immigration judge may terminate removal proceedings and allow you to keep your green card if you prove you did not abandon your residence. If the Immigration Court finds that you abandoned your status, you may defend yourself against removal by filing a form of relief for which you qualify.

At the port of entry, the customs officer may give you a Form I-407, Record of Abandonment of Permanent Residence Status, to sign (sometimes in exchange for being admitted to the U.S. as a temporary visitor).

If you want to keep your status, do not sign the Form I-407 if one is given to you. Instead, ask for Deferred Inspection or a Notice to Appear in Removal Proceedings before the Immigration Court.

A signed Form I-407 can be used to show that you affirmatively abandoned your residence. It makes it much harder to prove that you you did not abandon your U.S. residency or did not intend to abandon it.

When Does the Question of Whether You Abandoned Your U.S. Residency Come Up? 

Applying for Admission at the U.S. Port of Entry

Each time green card holders return to the U.S. from a trip overseas, CBP officers may ask questions to determine whether they abandoned their U.S. residency. Common questions include:

  • Where have you been outside the U.S.?
  • How long were you there?
  • What were you doing there?
  • Why are you coming to the U.S. now?
  • What ties to the U.S. did you keep while you were away?

Filing a Naturalization Application with USCIS

When permanent residents apply to become naturalized U.S. citizens, they are asked questions about their trips abroad on the Form N-400 application. They are also asked about their current and past addresses; employers and schools; and whether they filed their federal, state or local taxes as a nonresident.

Information on the N-400 concerning where you have lived, worked, and kept ties, as well as the frequency and lengths of your trips abroad, could lead to complications. USCIS may find that you not only fail to meet the continuous residence and physical presence requirements for naturalization, but that you also abandoned your U.S. residency.

If USCIS finds that you abandoned your U.S. residency, it will deny the naturalization application and may issue a Notice to Appear in Removal Proceedings. If placed in removal proceedings before the Immigration Court, you would need to prove that you did not abandon your LPR status and defend yourself against removal.

* * *

Consult with an experienced immigration attorney to help you determine whether your long absences from the U.S., frequent trips abroad, weak ties to the  U.S., or strong ties to another country could cause problems with re-entering the U.S. or becoming a naturalized citizen.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What to expect after your marriage-based green card interview

Posted on December 24, 2014 | Comments Off on What to expect after your marriage-based green card interview

A marriage-based green card interview before USCIS is required when a foreign national files a Form I-485 (green card) application based on a U.S. citizen (or permanent resident) spouse’s I-130 immigrant petition for him or her.  A fiancé(e) who enters the U.S. on a K-1 visa, marries the U.S. citizen petitioner, and then files an Form I-485 may also be scheduled for an interview.

What is the best possible outcome of a marriage-based immigration interview? 

If, at the end of the interview, the officer determines your marriage is bona fide, the I-130 petition can be approved on the spot. The I-485 will be approved as well if the foreign national qualifies for adjustment of status, the background check has cleared, and the marriage is found to be bona fide.

You will receive approval notices in the mail, after which the green card is issued in about three weeks.

What delays may occur following a marriage-based immigration interview? 

Case put on hold due to delays in name check and FBI clearance

Sometimes the FBI and other outside agencies are unable to complete all the background checks on the foreign national before the interview date. The USCIS officer may still approve the I-130 petition, but not the green card application until all the background checks are clear. You may schedule an InfoPass appointment to check on the progress in your case.

Case put on hold because officer is undecided or has other priorities

Sometimes the officer is undecided on whether to approve or deny the case.  For example, the officer is convinced that the parties share a bona fide marriage, but questions whether the foreign national is eligible for adjustment of status. A false claim to U.S. citizenship to gain employment or a serious criminal conviction are two common reasons why an adjustment application can be held up, even if the officer intends to approve the I-130 petition.

The interviewing officer may forward the case to a supervisor for further review and guidance. The sheer volume of petitions and applications being processed at the USCIS field office can add to the delay.

Several months might pass before the officer finally approves the case. In some instances, the officer may approve the petition, but deny the I-485 adjustment application. If the foreign national is placed in removal proceedings, the adjustment application and other forms of relief can be reviewed by an Immigration Judge.

Case put on hold because more evidence is needed or negative information is in the file

When more information is needed to issue a decision in your case, the officer has several options.

Request for Evidence

The officer may issue a Request for Evidence (RFE) specifying the additional documents you must submit.  You  will have a set time frame in which to submit the evidence (usually 12 weeks).  Although an RFE does not mean USCIS intends to deny the case,  your failure to file a timely response could lead to a denial.

Site Investigation

If the officer suspects the marriage is a sham, USCIS may conduct further investigation. This includes USCIS investigating officers showing up at the parties’ claimed residence to verify if they live together as a married couple. The “bed check” or “site visit” can occur at any time after the interview — sometimes as long as one to two years later — while the case is pending.

The site visit is unscheduled and typically occurs very early in the morning.  The USCIS officers will knock on your door or ring your doorbell and ask to enter your home so they can see firsthand where you live.  They may look inside your closets, check out your bathrooms and bedrooms, ask about family photos on your walls, etc. to get a sense of whether you really live together as a married couple. They may also ask you questions at the site visit, which you must treat like a formal interview.

While you may refuse to admit the officers into your home, this could raise more suspicion and trigger other types of investigation. If no authorized person is around to admit the officers inside the home, they can keep coming back or take a look around outside the home. In any event, it’s better to have at least one party and preferably both parties, in the marriage, at home when the officer conducts the site visit.

USCIS officers may also talk with your neighbors or your landlord/rental manager to verify whether you live together at your claimed residence.

USCIS does not, as a matter of practice, stake out your home for days. Once they have an opportunity to enter and see where you live, this is usually the end of the site visit. Sometimes they do not come back after the first attempt. Although this can be a daunting experience, go about your life as you normally would.

Source Checks

USCIS also often checks Department of Motor Vehicle (DMV) records, court records, social media, and other miscellaneous sources to  see if there is any adverse information, such as the parties claiming different residences or failing to hold themselves out as a married couple.

In some cases, USCIS may contact your place of employment or school to verify certain information, such as your emergency contacts, marital status and current residence listed. The employer or school, however, does not have to give this information to USCIS, especially if they have privacy policies and rules to follow.

Follow-Up Interview

USCIS may also schedule you for another interview, which could occur as much as 6+ months after the first interview. The follow-up interview is usually to test whether you’re still living together and to question each of you separately. A new interview may also follow after USCIS has conducted a site visit to your home or completed other types of investigation.

When you are asked the same questions individually, the officer will compare your answers to see if they match up.

The officer will ask probing and personal questions to determine whether the parties really know each other and share a married life. Even bona fide married couples have trouble answering questions aimed at detecting fraud, such as:

  • what is the color of the walls in your bedroom?
  • what side of the bed do you sleep on?
  • what type of birth control do you use?
  • what did your spouse wear to bed last night?
  • what did you do for your spouse’s last birthday?
  • how did you celebrate last Thanksgiving?
  • how many rooms are in your home?
  • when was the last time you watched television together?
  • who woke up first this morning?
  • where did your spouse live when you first met?

Fraud interviews are intense and can last for an hour or more. It is rare for each party to provide the exact same answer on every single question, even when the marriage is truly bona fide. Unfortunately,  USCIS may use any discrepancies in your testimonies to support a denial decision.

Notice of Intent to Deny

In extreme cases, USCIS may issue a Notice of Intent to Deny (NOID) petition because there is evidence of a sham marriage, i.e. a marriage that is entered into solely for or primarily for immigration benefits.

In addition, USCIS may issue a NOID when the foreign national was the beneficiary of a prior spousal immigrant petition that was denied or found to be fraudulent. This is because section 204(c) of the Immigration & Nationality Act bars the approval of any subsequent petition for a beneficiary who is found to have previously entered into a sham marriage for immigration benefits.

Seek Immigration Counsel

If USCIS issues a Notice of Intent to Deny (NOID) the I-130 petition, it will be addressed to the petitioner, who will have 30 to 33 days to respond to it. Failure to timely or adequately respond to the NOID will result in a denial of the petition as well as the adjustment of status application. The I-130 decision is sent to the petitioner and the I-485 decision is sent to the foreign national applicant.

As long as the marriage is real and the parties fully rebut the marriage fraud allegations with objective and credible evidence, they can get the petition approved.

An experienced immigration attorney can help you prove the marriage is real, address discrepancies, overcome grounds for suspicion, and prevent a denial of the petition.

You are better off having an attorney present at the interview. And the best time to consult an attorney is before you file the marriage-based adjustment application or K-1 to green card application, not after USCIS issues a Request for Evidence, second interview notice, or Notice of Intent to Deny, when irreparable mistakes might have already occurred.

For more information, read our related article, What to expect at your marriage-based green card interview.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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