Overstay Could Bar Green Card for Visa Waiver Entrants

Overstay Rules for Visa Waiver Countries Are Changing!

Visa waiver entrants benefit from a program that Congress created allowing citizens of certain countries to come to the U.S. as tourists for 90 days or less without visitor's visas. To get the government waiver of the usual visa requirement, the tourist has to sign a wiaver of his or her own right to contest removal other than on the basis of asylum. Visa waiver countries include Germany, the United Kingdom, Spain, Belgium, Australia, France, and others. A total of 27 countries currently have this designation.

In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment. Under those facts, the visa waiver entrant would have to consular process and could be subject to an unlawful presence bar (3 or 10 years depending on the amount of time overstayed) which would require a lengthy waiver process to be able to re-enter the U.S. as well as grant from the Attorney General to let him come back despite a recent deportation.

What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires.

CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants' ability to apply for permanent residency in the U.S.

Abused Spouses Who Enter Illegally Now Able to Obtain Green Card

CIS recently released a memo confirming a nationwide policy to allow battered spouses who have received an approved Violence Against Women Act (VAWA) petition to apply for a green card while in the U.S., despite an illegal entry. Prior to this memo's release, there was no nationwide interpretation of the statute on this issue and various CIS district offices were granting VAWA green cards for those who entered illegally and many other CIS offices were not.
This is a huge victory for battered spouses who entered illegally, many of which could face unlawful presence bars, the permanent bar, or be at risk if had to leave the U.S. to process their green card petitions abroad at a consulate.

This memo was very narrowly tailored, however, to apply to those who entered without inspection, not necessarily pertaining to those who entered by other means, i.e., with a fiance visa and did not marry the USC sponsor but married someone else who turned abusive, or those who entered with J-1s who are having adjustment problems (or other such situations).

9th Circuit Finds Adjustment (Green Card) Unavailable to Persons Who Enter the U.S. by Using False Documents or by Fraud; Must Consular Process!

summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)

Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)

On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.

The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.

Must the marriage be consummated?

Whether a marriage is considered a sham("fake", i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen resfuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.

In Matter of M, 7 I & N Dec. 601 (BIA Nov 1957)(in deportation proceedings, the immigrant was found to not have commited marriage fraud even though the marriage was never consummated because he had tried to consummate the marriage and his wife refused and she testified that the immigrant did seek to have sexual intercourse with her more than once but that she refused because she had become interested in another man).

Special rule for proxy marriages: If spouses not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35);

Before filing for any immigrant visa petition based ona marriage that has not been consummated, an immigrant should always speak to at least one competent immigration attorney about the specific facts of their case, especially since this is a complicated area that can turn on the facts.

Conditional LPR marriage breaking up

Yes, the shorter the marriage is, the worse it looks on paper for a conditional green card holder. The whole point of having a conditional green card was congress was worried about sham marriages so there will be skepticism as to whether a short marriage was real to begin with if it breaks up especially in the first 6 months following the initial green card issuance. There's no safe time or date to break up the marriage to protect the immigrant's green card. Documentation and supportable facts can explain a short marriage and an immigrant may be eligible for a "good faith" marriage waiver (which requires a final divorce decree TO FILE the waiver in the first place). This requires that the marriage ws entered into in good faith by both parties, but due to reasons not due to the fault of the immigrant, the marriage split. It requires a lot of joint documentation of commingled assets and proof that the couple lived together for a significant amount of time. The problem arises due to the divorce decree which in some states can take 6 months to get at minimum! (CA, for instance).

If the divorce is not final or even filed at the time of 2 year green card's impending expiration, the immigrant may be eligible for an extreme hardship waiver as well, where the amount of documentation proving a bona fide or good faith marriage is not crucial but can be much more difficult case to prove depending on numerous factors including the (1) the age of the immigrant, (2) length of stay in the US, (3) their home country, and other factors. Again, an immigrant in such a situation should always consult at least one competnent immigration attorney with experience in multiple kinds of waivers to see what option(s) are best.

Re: Conditional green card holder married to someone else

This is a tricky situation. A conditional green card holder cannot change or adjust her status to another conditional green card while she's still in conditional status. Plus, if her last entry was as a conditional green card holder (i.e., got her green card then went on vacation in Mexico and re-entered), there is some debate as to whether she can actually adjust her status even once her conditional green card expires and she's divorced and free to re-marry someone else. In Los Angeles, for instance, CIS takes the position that even if her last entry was as a CLPR, if her CLPR has been terminated for failure to file by (or even late file) the 2 year expiration of her card, and she re-marries, it is technically ok to adjust status.

Regardless, what happens if a expired CLPR remarries (and whether or not she is eligible to adjust status in the US or has to consular process) is that CIS will be concerned that the original marriage was not real but only a means to get a green card, especially since it was short. They will look specifically about why the marriage fell apart, how long the couple was together after the green card was issued, who's fault it was that they separated, and what kind of joint documentation the couple had together (i.e., long term existence of bank accounts, mortgages, health insurance, etc.) .

The facts differ in every case as does the level of documentation so it is always advisable to speak to a competent immigration attorney to determine the best route for the immigrant to take, whether it is trying to save the conditional green card in thefirst place through a waiver that doesn't involve the original spouse or starting over from scratch with a new spouse.

The Misrepresentation Waiver

The Immigration and Nationality Act provides a waiver to individuals who are found inadmissible under §212(a)(6)(C)(i) for committing fraud or willful misrepresentation of a material fact at to any DHS officer (whether by lying, using false documents, or otherwise attempting to gain lawful entry into the US by fraudulent means). Whether a statement or document submitted is "material" depends on whether the statement or false document presented would make the immigrant excludable or shut off a line of inquiry which may have resulted in exclusion from the U.S.

The requirements for the waiver are:
(1) The applicant must be the spouse, son, or daughter of a U.S. citizen or alien lawfully admitted for permanent residence; AND
(2) The refusal of admission to the United States would result in extreme hardship to the citizen or LPR relative.

Extreme hardship is not defined by the statute but depends on caselaw and the factors of each individual case (see discussion above related to extreme hardship). A formal finding of marriage fraud results in a lifetime bar to any issuance of an immigrant visa. A finding of misrepresentation, though, may be waived by this special 212(i) waiver.

Working Abroad - Abandoning Green Card?

Stephen, this one's for you.

Marriage to a US citizen does not protect a LPR (lawful permanent resident) from losing his/her permanent residency if the LPR and their US citizen spouse decide to live outside of the U.S.
Typically when an LPR expects to be out of the US for longer than 6 months for a temporary stay abroad but has no intent to relinquish their US residence, the LPR can apply for a "re-entry permit." However, CIS takes the position that even with a valid re-entry permit, absences of 1 year or more constitute "abandonment" of permanent residency. However, residency may be abandoned even if less than one year where person lives and works abroad.

It's best to wait on that job offer abroad if you can until you can become a US citizen. Once the LPR becomes a US citizen (usually in as little as 4 years after LPR grant given current processing times), the former LPR can live outside of the US as long as s/he desires without having to worry about being allowed to re-enter.

One other issue I noticed in your posting, Stephen. If you become a LPR based on employment, if you immediately leave the company and go work abroad, you also bring into question whether you ever had a bona fide job offer since you "left" the company right after you got your green card. This could be very difficult to explain to a new officer at the airport when trying to re-enter the US.

Grandfathering under 245(i): Avoiding leaving the US to obtain a green card

Under INA 245(i), if a family or employment-based immigrant visa or labor certification was filed for an immigrant before the cut off date of April 30, 2001 and the immigrant was physically present or living in the US (legal or not legal), the immigrant will usually not have to leave the U.S. to process and pick up a green card abroad at a U.S. consulate. Many times, an immigrant's US citizen spouse filed after this cut off date for the immigrant who entered the US illegally and the immigrant is forced to leave the US to consular process the green card. The problem is that once an immigrant departs (leaves) the US, s/he could face a 10 or 3 year bar or permanent bar to re-entering the US for being in the US illegally. So, many times, departing the US just because the immigrant seems eligible for a green card could be a very risky move.

But many times an immigrant can avoid leaving the US if the immigrant's mother or father was sponsored under 245(i) for an immigrant visa (i.e., by their sister or brother or former spouse if married at that time), the immigrant was under 21 when their mother or father's visa petition was filed, and the petition was "approvable when filed" (either shown by an approval notice or if pending, underlying proof of qualification for the visa status).

For example, if Juan was 19 years old in April 2001 and his mom's (who is also illegally in the US) brother - Juan's uncle, sponsored Juan's mother for an immigrant visa based on the brother/sister relationship by April 30, 2001, Juan would be able to use that old filing to "grandfather" under the expired provision of 245(i), assuming he hasn't left the US, to file a new case based on marriage to a US citizen and will be able to get his green card in the US without having to leave to consular process even though Juan entered the US illegally.

Important: Figuring out if you qualify for 245(i) grandfathering can be complicated. Always consult an attorney to determine if this option is available to you and never leave the US after a period of illegal presence until you consult with at least one competent immigration attorney so you know your options and any potential consequences of your departure.

Entry on a Fiance Visa but Marry Someone Else

Under the Immigration and Nationality Act (INA), a fiance visa holder has 90 days upon entry with a fiance visa to marry the US citizen petitioner before the visa expires. That 90 day period often serves as a test period for couples who have been physically separated, sometimes for months, and have only been corresponding via email and instant messenger, or the phone to keep contact with each other. When reality sets in and the couple realizes that they really don't want to get married after living together a while or just one or both has changed their mind, the fiance visa holder has usually has only one immigration option - to return to their home country.
I often hear from couples who have met and married but do not realize that the immigrant spouse entered on a fiance visa, while engaged to another person, before meeting their current spouse. If that situation occurs, the immigrant has to consular process, and is ineligible for adjustment of status (the green card application process in the U.S.). The immigrant spouse is only allowed to apply for a green card in the U.S. without having to leave the U.S. and visit a consulate abroad if the immigrant marries the same person he or she was engaged to and who sponsored the immigrant originally for a fiance visa.

The problem that's created by this situation is mainly how difficult it could be for the immigrant to be able to re-enter the U.S. legally with another visa even if s/he is now married to a U.S. citizen (not the fiance visa petitioner). Usually, immigrant spouses come to me after many months of unlawful presence, not knowing the consequences of staying in the U.S. beyond the 90 days granted on the fiance visa entry. Many immigrant spouses face the three and ten year re-entry bars to admission and will have to apply for a waiver of the bar but only by showing that their new US citizen spouse will suffer "extreme hardship" if the immigrant spouse is not allowed to re-enter the U.S. So, many times, it's what we would call a "catch 22". The only way to obtain legal status and a green card (permanent residency) is to leave the U.S. to interview for it at a consulate abroad but the very act of leaving the U.S. may trigger one of the unlawful presence bars.

It's very important to document a case of extreme hardship if you can before the immigrant leaves the U.S., if a waiver is going to be attempted. In many circumstances, the risk of not being able to re-enter the U.S. far outweighs the potential benefit of a green card and many spouses wait to file until more time and hardship has developed, despite their unlawful presence in the U.S.