Category Archives: marriage fraud

I-601 Waiver + Immigrant Visa = A True Success Story

Posted on December 15, 2021 | Comments Off on I-601 Waiver + Immigrant Visa = A True Success Story

Five years after being found inadmissible under INA 212(a)(6)(C)(i), our client finally received her Immigrant Visa to join her U.S. citizen spouse in the United States. Consistent with normal processing time, USCIS took 10 months to approve her Form I-601 application for waiver of inadmissibility, which we prepared and filed on her behalf.

But due to the U.S. Consulate’s administrative delays and a Presidential Proclamation suspending entries from the client’s home country, it took almost three more years for her to get the visa.

In episode 13 of The Legal Immigrant, you will learn:

1) The U.S. immigration problem when you have a permanent bar under INA 212(a)(6)(C)(i), i.e., fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit. 

2) The two main solutions to receive an Immigrant Visa or green card (permanent residence) when you have a section 212(a)(6)(C)(i) inadmissibility bar:

a) A motion to reconsider requires you to have a factual basis, legal ground, and procedural means to get the bar removed.

b) Form I-601 waiver application under INA 212(i) requires you to have a “qualifying relative” who will face “extreme hardship” if you do not immigrate to the United States. 

  • A qualifying relative is the U.S. citizen or permanent resident spouse or parent of the applicant. 
  • Extreme hardship must result to the qualifying relative if that person stays in the U.S. without the applicant or relocates to another country to be with the applicant. 

3) The type of documentary evidence and legal argument that are required to receive an I-601 waiver.  This includes medical records on any chronic medical conditions the U.S. citizen spouse (or other qualifying relative) suffers, and reports on lack of medical resources in the visa applicant’s home country. 

4) The outcome of a true success story, which included more obstacles and long delays after the I-601 was approved. Due to the U.S. Consulate’s 221(g) administrative processing and a 212(f) Presidential Proclamation suspending entries from certain countries, it took almost three more years for the applicant to get the Immigrant Visa.

The couple remained committed to one another despite their separate residences and long-distance relationship. Our client finally became a permanent resident after she was initially refused the visa under INA 212(a)(6)(C)(i).

This is a true success story at Dyan Williams Law.

To hear more on the I-601 Waiver + Immigrant Visa success story, click HERE for Episode 13 on The Legal Immigrant podcast or find it on Apple Podcasts or Google Podcasts. 

To watch the YouTube video, click HERE.  

To read the transcript, click HERE. 

The Legal Immigrant provides general information only from Dyan Williams Law. Do not consider it as legal advice. Each case is different. Even cases that seem similar can have different outcomes. 

Have you been charged with fraud or misrepresentation? If you’re applying for an immigrant visa or permanent residence and have this lifetime bar, you need an I-601 waiver. Otherwise, if the bar was made in error, you might be able to get it removed through a motion to reconsider.

To receive advice on fraud or misrepresentation issues, you may submit an email to info@dyanwilliamslaw.com or online message at www.dyanwilliamslaw.com.

Dyan Williams, Esq. 

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

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Posted in adjustment of status, good moral character, green card, immigrant petition, immigrant visa, immigration fraud, INA 212(a)(6)(C)(i), marriage fraud, success story, The Legal Immigrant - Immigration Blog, Videos, waiver, willful misrepresentation

The Legal Immigrant PODCAST is Now Up!

Posted on January 4, 2021 | Comments Off on The Legal Immigrant PODCAST is Now Up!

The month of January signals new beginnings and fresh starts. In December 2020 – with the new year approaching – I finally took steps to launch The Legal Immigrant podcast.

Through success stories and Q&As, the show will cover U.S. immigration problems that we help our clients solve.

Episodes 1 and 2 are now up. The podcast is available HERE  on the show’s website. Or find it on podcast apps like Apple Podcasts, Spotify, Player FM, and Listen Notes or via RSS feed.

At the start of 2020, I had tentative plans to launch a podcast. As a solo immigration lawyer and a productivity coach, I was conflicted on whether to start one or two podcasts. Over time, this project moved to the backburner while COVID-19, civil unrest, school closures, the November Elections, and other changes were at front and center.

Although the U.S. and other parts of the world are still not back to pre-COVID-19 “normal,” we can still attend to the essentials. We have a unique opportunity to build resilience, show grace to others, and learn new ways to maintain human connection.

Besides launching The Legal Immigrant podcast, I started another podcast, The Incrementalist. This productivity show will discuss how to make big changes or finish a big project in small steps, with the Incrementalist approach.

There’s a content strategy to release new episodes over the coming weeks. It will take systems – not goals – to keep the shows going. Stay tuned!

In the meantime, check out the first two episodes of The Legal Immigrant. If you find the podcast helpful, please share it with others. And subscribe so you don’t miss new episodes. 

And if you’d like to check out my other podcast, The Incrementalist, click HERE for the show’s website.

Your downloads, shares and subscriptions will help to grow the shows. In return, I will aim to provide valuable content and build connection with listeners through podcasting.

Thank you for your support and audience.

All the best in 2021,

Dyan Williams

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Posted in adjustment of status, bona fide marriage, citizenship, expedited removal, green card, H-1B, I-751, immigrant petition, immigrant visa, immigration consequences of criminal convictions, immigration fraud, K-1 visa, K-3 visa, marriage fraud, naturalization, nonimmigrant visa, success story, The Legal Immigrant - Immigration Blog, The Productive Lawyer - Productivity + Lawyer Wellbeing Blog, waiver, willful misrepresentation

Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

Posted on October 26, 2019 | Comments Off on Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

The USCIS Field Office in Minneapolis approved our clients’ joint Form I-751 petition to remove conditions on residence, even though they lived apart in different states during the marriage and had just moved in together at the time of the interview. A timely response to the Request for Evidence and in-depth preparation for the I-751 interview were essential to getting the approval.

When the U.S. citizen’s I-130 petition and the beneficiary’s I-485 green card application were approved years earlier, the couple resided together. But the beneficiary later moved to another state where job opportunities were better and the living expenses were lower. The couple lived apart for about three years following their marriage. The U.S. citizen delayed relocating with his spouse to fulfill family obligations in his home state. In the meantime, they made a few trips to visit each other and kept up long-distance communication through telephone calls and text messages.

Explanatory Response to Request for Evidence

On their own, the couple filed the joint Form I-751 petition with their tax returns and a few affidavits as supporting evidence. The conditional resident contacted me, for the first time, when she received a Request for Evidence from USCIS instructing her to submit more evidence to show she and her spouse entered the marriage in good faith and continue to share a life together.

USCIS noted the evidence should include proof of children as a result of the marriage, evidence of joint residence, documents showing combined financial resources, and affidavits from third parties who have direct knowledge of the relationship.

In the consultation, I described the documentary evidence to submit in lieu of a joint residential lease, joint bills and other proof of a shared residence. I also noted that detailed affidavits from the couple were necessary to explain the compelling reasons for living separately in different states and their concrete plans to move in together where the conditional resident lives.

The Service may waive the interview requirement only when the documentary evidence is enough to support an approval without question. Because the conditional resident and her U.S. citizen spouse would continue to live in separate states at the time the RFE response was due, I explained that an interview with USCIS was likely.

Maintaining separate residences is a serious negative factor to consider when evaluating the bona fide nature of a marriage. USCIS will not approve an I-751 without an interview when there is no proof of a joint residence.

Falsely claiming to live together is a foolish and risky action to take. This makes the conditional resident subject to being charged with INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits), which is a lifetime inadmissibility bar to receiving permanent residence. In addition, USCIS may conduct an investigation – such as search open source records and make unannounced visits to the claimed residence – to verify whether the couple really lives together. Such investigations may occur at any time while the petition is pending.

Thorough Preparation for I-751 Interview

Eight months after the RFE was issued, USCIS sent the conditional resident an interview notice to complete the Form I-751 processing. At that point, the U.S. citizen had recently relocated and entered into a new lease agreement with his spouse for their shared residence.

The couple contacted me for representation at the I-751 interview. Before agreeing to attend the interview as counsel, we had a telephone consultation in which we discussed the status of their relationship, the re-establishment of their joint residence, and the potential concerns and questions the USCIS officer would likely have at the interview.

I also counseled them on the additional documentary evidence to submit at the interview. This included their joint residential lease, joint bank account statement, joint utility bill, and home property insurance.

After thoroughly preparing them for what to expect, I attended the interview with them a few days later. The USCIS officer interviewed them separately and asked a variety of questions on the premarital courtship, marital history, living arrangements, medical conditions, family dynamics, reasons for the separate residences, the U.S. citizen’s relocation, and current home they share. Their testimonies were credible and overall consistent with each other.

Removal of Conditions on Permanent Residence Following Completion of I-751 Interview

At the end of the interview, the USCIS officer issued a notice stating the petition has been recommended for approval and an approval notice would be mailed if final approval is granted.

A week later, the couple received the official Form I-797, Approval Notice removing the conditions on residence. The 10-year green card was also mailed in a separate correspondence. Because the applicant had received her conditional residence four years ago and remains married to the U.S. citizen petitioner, she already meets the continuous residence requirement for naturalization (U.S. citizenship).

Separate Residences During Marriage Creates an Obstacle to Receiving I-751 Approval

The years of maintaining separate residences made it harder for this otherwise bona fide married couple to receive an I-751 approval. Without evidence of their trips to visit each other and long-distance communications, as well as their own affidavits and third-party affidavits describing their marriage, the interview would have been tougher.

Further preparation on the testimonies and documentary evidence to present at the I-751 interview was also critical to getting the conditions on permanent residence removed. It was important for them to tell the truth about the separate residences instead of offer fabricated information about their living arrangements. Falsifying evidence is one of the quickest ways to end up with inconsistencies and a denial.

With guidance from counsel, the conditional resident received an I-751 approval despite living separately from her U.S. citizen spouse for several years during the marriage.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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 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 bona fide marriage, green card, I-751, immigrant petition, marriage fraud, success story, The Legal Immigrant - Immigration Blog

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Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

Posted on May 3, 2019 | Comments Off on Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

On appeal, a USCIS Field Office reconsidered and reversed its denial of our U.S. citizen client’s Form I-130 petition for her spouse under INA 204(c), which is commonly known as the marriage fraud bar. The Board of Immigration Appeals (BIA) has authority to review such decisions, but USCIS chose to vacate the section 204(c) bar on its own and approve the petition without a BIA order. In addition, the spouse was granted a green card based on his concurrently filed Form I-485 application for permanent resident status. These favorable decisions were made within three months of our filing the Notice of Appeal and within two months of our submitting the legal memorandum to support the appeal.

Beneficiary’s File is Flagged Due to USCIS’ Denial of Prior I-130 Petition by Previous U.S. Citizen Spouse

Section 204(c) of the Immigration & Nationality Act states that no petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, through a sham marriage, i.e. a marriage determined by USCIS to have been entered into for the purpose of evading U.S. immigration laws.

In our clients’ case, the beneficiary was previously married to another U.S. citizen who filed a prior I-130 petition for him. They completed two different interviews with USCIS over a two-year period. They were separated and asked various questions about their courtship and marriage, from which USCIS listed a total of five discrepancies between their answers.

USCIS investigators also went to their shared residence when neither of them was present. The petitioner’s mother – who lived with them – was at the home when the officers arrived. She confirmed the couple resided there with her, but the officers found very few personal items belonging to the beneficiary. Through further investigations, USCIS discovered the beneficiary was the lessee of a separate apartment and determined that he lived there instead of with the petitioner.

With the help of prior counsel, the petitioner and beneficiary submitted a Response to the Notice of Intent to Deny the I-130 petition, in which they described the reasons for the discrepancies at the interview, confirmed they lived together, and explained the separate apartment under the beneficiary’s name was being subleased to another person.

Three months after receiving the Response to the NOID, USCIS denied the I-130 petition based on the discrepancies at the interviews and their investigations from which they determined the beneficiary did not live with the petitioner. The evidence filed with the Response was disregarded. The decision was not appealed because the marriage fell apart and the parties ultimately divorced.

Beneficiary Faces INA 204(c)/Marriage Fraud Bar in Subsequent I-130 Petition by Second U.S. Citizen Spouse

Following his divorce from his first U.S. citizen spouse, the beneficiary entered into marriage to another U.S. citizen, who filed an I-130 petition for him about 18 months after the prior petition was denied. After interviewing the couple, USCIS issued a Notice of Intent to Deny the petition a year later.

In the Notice of Intent to Deny, USCIS acknowledged the couple’s marriage is bona fide and cited to no discrepancies between their testimonies at the interview. The Service, however, pointed out the beneficiary is ineligible for an I-130 approval under INA 204(c), in that his prior marriage was found to be a sham.

Petitioner Receives Guidance on Responding to Notice of Intent to Deny through Consultation

The petitioner contacted our firm, Dyan Williams Law, for help just four days before the Response to Notice of Intent to Deny was due to USCIS. Due to the time constraints and pre-existing commitments, we declined to represent her in the Response, but agreed to provide her with a consultation.

To prepare for the consultation, I reviewed the Notice of Intent to Deny the petition, the earlier Response to Notice of Intent to Deny that was filed by the prior U.S. citizen spouse, and other key items. During our telephone call, I gave the petitioner a list of documents and information to gather and present in her Response. I also summarized applicable case law and essential legal arguments she should mention in her Response.

Using my recommendations, the petitioner filed a timely and persuasive Response, which included a notarized declaration from the beneficiary’s ex-spouse confirming they had a good-faith marriage.

Representation on Appeal Leads to Reversal of INA 204(c) Finding and Approval of I-130 and I-485

A week after receiving the Response to Notice of Intent to Deny, USCIS issued a decision denying the I-130 petition under INA 204(c). The Service found there was no credible evidence to substantiate the claim of a bona fide marriage between the beneficiary and his prior U.S. citizen spouse.

The petitioner contacted me soon after she received the decision. This time, I accepted her case for representation and agreed to prepare and file the appeal on her behalf.

On appeal, I argued it was not the petitioner’s burden to prove her spouse’s prior marriage was bona fide. Rather, the Service has the burden to show by “substantial and probative evidence” that the beneficiary previously attempted or conspired to enter into a sham marriage for U.S. immigration purposes. I cited to applicable law, the credible explanations for the discrepancies at the interviews, and material evidence demonstrating the beneficiary and his prior spouse lived together and shared a real marriage before it ended in divorce. I noted the Service made a reversible error by applying the harsh statute – INA 204(c) – to deny the petition.

About two months after the legal memorandum to support the appeal was submitted, the petitioner informed me that USCIS approved the I-130 petition. She and her spouse also received notice that the concurrently filed I-485 application was reopened by USCIS, on its own initiative.

A couple weeks later, the beneficiary received his 10-year green card in the mail. He is now a permanent resident of the United States who may eventually file for naturalization (citizenship). After more than seven years of seeking to obtain permanent residence – first through a failed marriage and then via his current marriage – he finally achieved true success in his immigration journey with our counsel.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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 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, immigrant petition, immigration fraud, marriage fraud, success story, The Legal Immigrant - Immigration Blog

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Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

Posted on August 9, 2018 | Comments Off on Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

On June 28, 2018, USCIS issued updated guidance requiring its officers to initiate removal proceedings in more cases to align with President Trump’s executive order, Enhancing Public Safety in the Interior of the United States.  USCIS Director L. Francis Cissna said the new policy equips USCIS officers to better support the immigration enforcement priorities of the Department of Homeland Security (DHS).

The 2018 memorandum instructs USCIS to issue a Notice to Appear in removal proceedings before an Immigration Judge to inadmissible or deportable persons in an expanded range of situations, instead of referring NTAs to the U.S. Immigration & Customs Enforcement (ICE) in limited cases.  One major change is that an NTA must be issued whenever a person’s immigration benefit request is denied and he or she is “not lawfully present” in the United States.

What is a Notice to Appear?

A Notice to Appear is a Form I-862 the DHS issues to initiate removal proceedings against a person. The NTA includes the charges against the person and alleges the immigration laws he or she violated.  Some NTAs include the date and time of the initial hearing, when you first appear before an immigration judge who decides whether you should be removed or whether you qualify for relief, including voluntary departure in lieu of a removal order.

What Was the Previous USCIS Policy on Issuing a Notice to Appear? 

The November 7, 2011 Policy Memorandum (PM), which is now superseded by the June 28, 2018 PM, provided “USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. ”

The 2011 policy instructed USCIS to issue an NTA in the following situations:

  • Cases where it is required by statute or regulation, such as termination of Conditional Permanent Resident Status and denials of Form I-751, and asylum referrals.
  • Fraud or willful misrepresentation/section INA 212(a)(6)(C) cases when a Statement of Findings substantiating fraud is part of the record.
  • In naturalization (Form N-400 application) cases where the applicant is removable, including those who were inadmissible at the time of obtaining permanent residence.

The 2011 policy further directed USCIS to refer matters to ICE in the following situations:

  • Egregious Public Safety (EPS) cases “where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of” certain specified aggravated felonies as defined under section 101(a)(43) of the INA; is a Human Rights Violator, is a known or suspected street gang member or is subject to Interpol  hits; or has re-entered the U.S. after removal subsequent to a felony conviction where no Form I-212, Application for Consent to Reapply for Admission, has been approved.
  • Cases where the person is inadmissible or removable due to a criminal offense falling outside of the EPS definition, after USCIS completes adjudication.

What is the Current USCIS Policy on Issuing a Notice to Appear?

The June 28, 2018 Policy Memorandum (PM) requires USCIS to issue a Notice to Appear in a broader range of cases without first consulting ICE.

Many more persons will be placed in removal proceedings as USCIS is now required to issue an NTA in the following situations:

  • If an application or petition for immigration benefits is denied and the person is not in lawful status (not lawfully present).
  • If an application or petition for immigration benefits is denied and the person is removable (i.e. subject to any removability grounds under INA 237), especially when there is evidence of fraud or misrepresentation and/or abuse of public  benefit programs.
  • Criminal cases in which the applicant is removable and has been convicted of or charged with any criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or is the ground of removability.
  • Naturalization cases in which the applicant is removable and USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds due to a criminal offense.

USCIS will continue to apply the 2011 NTA guidance to the following:

  • Cases involving national security concerns.
  • Cases where issuing an NTA is required by statute or regulation.
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status.
  • Deferred Action for Childhood Arrivals (DACA) recipients and applicants when USCIS is: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

UPDATE: On September 27, USCIS announced it will begin implementing the new guidance on October 1 in certain cases. For instance, it may issue NTAs on denied status-impacting applications, including Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. 

In a September 27th teleconference, USCIS also said it will not issue an NTA immediately upon denial of an immigration benefit.  Normally, it will wait for the expiration of the motion or appeal period before issuing an NTA. If an NTA is issued before a motion or appeal is filed or while it is pending, and USCIS takes favorable action on the motion or appeal, USCIS will notify ICE. Withdrawing an application does not cancel USCIS’s authority to issue an NTA. 

Potential Negative Effects of the NTA Policy Change

The new NTA guidance might discourage eligible applicants from seeking immigration benefits out of fear of getting their requests denied and being placed in removal proceedings if they are not lawfully present.  This includes persons applying for a green card (lawful permanent resident status), a change or extension of status, a waiver of inadmissibility and other immigration relief.

Departing the United States on one’s own, after being denied an immigration benefit, will bring harsh penalties when an NTA is issued and the person fails to appear for the scheduled Immigration Court hearing. An in absentia removal order is issued if there is clear, unequivocal and convincing evidence that written notice was provided and that the person is removable, but did not attend the proceeding.

At the same time, those who wait in the United States for an initial court date to appear before an immigration judge will continue to accrue unlawful presence toward the 3/10-year bar to re-entry under INA 212(a)(9)(B).  A person who accrues unlawful presence of more than 180 days but less than one year is barred from re-entering the U.S. for three years. The bar to re-entry is 10 years if the person accrues unlawful presence of more than one year prior to departure. The initiation of removal proceedings does not stop the accrual of unlawful presence.

Furthermore, the updated policy turns USCIS into another immigration enforcement component of DHS, along with ICE and the U.S. Customs & Border Protection (CBP).  An increase in the issuance of NTAs will create additional backlog in the immigration court system and lengthen USCIS processing times.

Conclusion

Besides the new NTA policy, USCIS issued updated guidance to make it easier to deny a petition or application without first issuing a Request for Evidence or Notice of Intent to Deny. Another  USCIS policy change also subjects more nonimmigrant students and exchange visitors to accruing unlawful presence toward the 3/10-year bar, as well as the permanent bar under INA 212(a)(9)(C).

All these new policies are in line with the February 2018 change in USCIS’ mission statement, deleting sentences that refer to the United States as “a nation of immigrants” and to noncitizens who apply and pay for immigration benefits as “customers.” USCIS Director Cissna explained that this is “a reminder that we are always working for the American people.”

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

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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, citizenship, deferred action, green card, immigrant petition, immigration consequences of criminal convictions, immigration fraud, marriage fraud, naturalization, nonimmigrant visa, The Legal Immigrant - Immigration Blog, waiver

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