The Impulsive Marriage and Losing Your Visa Priority Date

A common problem that arises in the immigration context is a young marriage that results in the loss of a priority date of a visa petition filed by the lawful permanent resident parent for their son or daughter.  A priority date is the date the visa petition is filed with immigration (US CIS).  

For those subject to the visa bulletin and the visa quota system, which is anyone in the family category who is not an immediate relative of a U.S. citizen, the priority date determines where you are in line and how soon your visa will become available so you can apply for a green card. For certain countries like the Philippines and India, the backlog can be over 20 years in certain categories and priority dates go back as far as 1988.  So, it is very important not to lose the priority date (your place in line) or you have to start all over again in line, in most circumstances.

Under the Immigration and Nationality Act, when the immigrant is being sponsored by a Lawful Permanent Resident parent for a visa petition and the immigrant decides to get married, their priority date is automatically lost upon marriage because he or she is no longer an “unmarried child of a permanent resident.” There is no category for visa sponsorship under federal immigration law for a married child of a lawful permanent resident.

Many have the false belief that a subsequent divorce will cure the problem and reinstate or recapture the priority date, which it cannot. This can be an especially harsh reality in a situation where one immigrant marries another immigrant that lacks legal status. 

The immigrant with a pending immigrant visa filed by a parent on their behalf may be the only way the immigrant may obtain a green card.  Always talk with an immigration lawyer to determine if there is a faster route to residency besides the family petition or a different immigrant visa that may apply to you if you want to get married and are in this category.

The Young Lovers – Sponsoring a Spouse For A Green Card When You’re Under Age

You must be at least 18 years old in the State of California to get married.  In some states, you can be as young as 14.  But what happens when a 17 year old in the State of California who is a US citizen marries their 16 year old girlfriend because there is no other way for the girlfriend to become a green card holder?  California family code prohibits marriage between spouses where one party is under the age of 18, unless a court order granting permission is obtained, which is premised on the permission of the underage spouses’ parents. But even if these procedures are not followed and the children get impulsively married in California or another state that allows underage marriage and has no state residency requirements, CIS may still recognize such an underage marriage since the marriage is deemed voidable, not void.  The marriage must be officially terminated through a nullity action in state court for it to be considered void and not legally valid.  CIS may still deny the ultimate green card petition which is partly based on discretion to deter such a practice.

Even if the procedures are followed including granting the parents’ permission, it may still be in the immigrant’s best interest to wait until after s/he is 18 years old to marry because of the Affidavit of Support requirements and bona fide marriage issue that arises in each immigration marriage petition.  Every family-sponsored immigrant must file an Affidavit of Support, which is a contract with the federal government that requires a minimum salary to be made by the sponsoring US citizen or permanent resident spouse of the immigrant. If both parties are underage, it is highly unlikely that the pair would either be able to combine incomes or use just the petitioning US citizen’s income to meet this income threshold for purposes of the immigration case.  At that young age, the immigrant or his putative spouse would likely not have the work history and tax filing history to be a sponsor. If a joint sponsor who does meet the threshold is not available to step in (such as a U.S. citizen or Lawful Permanent resident parent or adult over the age of 18 (who is a US citizen or Lawful Permanent Resident), the immigrant cannot obtain permanent residency despite marriage to a U.S. citizen. 

Another serious issue arises when an overage immigrant does not marry an underage U.S. citizen or lawful permanent resident - the allegation and potential charge of "statutory rape" or what is generally charged as "sexual assault", "lewd acts with a minor", "carnal knowledge of a minor", etc. depending on your state which can lead to the immigrant being detained, prosecuted and eventually deported. If this is your situation, consult a criminal lawyer in your state before engaging in this act with a minor and an immigration lawyer to determine what the state and federal potential consequences as there are differing provisions and defenses in each state. 

Remarriage when your spouse disappears?

I come across a least a few times a year the situation where one of my clients has been married multiple times and now wishes to sponsor an immigrant spouse in their latest marriage that doesn’t have all of the divorce decrees or death certificates from prior spouse is to show that they have the legal right to marry the immigrant in their latest marriage.  The US citizen petitioner typically has two or three divorce decrees but in one of the marriage is somewhere in between these decrees, they either for that to file for divorce or didn’t file at all because their spouse just disappeared.  Without either a divorce or death decree from a prior marriage, U.S. Citizenship and Immigration Services (CIS), the agency in charge of granting the green card to the immigrant spouse, is likely to conclude that the current marriage to the foreign national is legally invalid and bigamous because the US citizen petitioner never got divorced from their prior spouse who disappeared. 

In a state of California, for example, the family code has a special provision for this “presumed dead” spouse situation.  If the US citizen or permanent resident petitioner believed that their former spouse was dead, any marriage entered into after this (with the immigrant, for instance), would be considered valid as it is not automatically void – it is voidable.  

When a marriage is voidable as opposed to void, the marriage remains valid until a formal nullity decree is granted by a family court judge.  Logically, the only person who would bring a nullity action, though, to invalidate the later and current marriage to the immigrant would be the former spouse who has since disappeared.  This would only make sense if the former spouse all of a sudden arose from the dead or came back after years of disappearing and wanted to keep their marriage intact.

Therefore, if this never happened (no nullity action was ever brought in court), the subsequent marriage to the foreign national is considered legal despite the absence of a divorce decree from the prior wife.  CIS recognizes voidable marriages as valid.  Always consult a family lawyer when determining if your situation falls within this loophole in California as there are certain requirements under the statute that must be met.  If you’re outside of California, there may be a similar family law provision or case in your state that may allow you to benefit from a disappearing spouse. 

Former Divorce Can Screw Up Green Card Case

Obtaining a green card based on marriage can seem straightforward unless either the U.S. citizen petitioner or the foreign national spouse has ever been married before.  If they both were living in the same state and were married and divorced in that state, the former divorces may hold up in court.  Even either spouse has been divorced in another state, their former spouse was not present in the state when they got divorced, or either has received a divorce decree from another country, you should think twice before going ahead with a new green card case based on a marriage before you have those divorce decrees analyzed by competent family lawyer in your state.  

• CIS does not have to recognize the legitimacy of the foreign divorce Decree or another state’s divorce decree if CIS finds that the state where the parties are living in does not recognize the Decree due to its own jurisdiction issues, family code requirements or public policy. 

This can be an extremely confusing area of the law. Because of differing State family laws, a couple could have completely different outcome on whether a divorce or marriage is recognized depending on the particular state they live in.  And if this is discovered after they married and when the marriage falls apart and a potential green card is on the line, this could derail the divorce case for a spouse hoping for alimony and a share of the assets if the marriage the dissolution is based on is invalid under State law. This also derails the federal immigration case if the spouse obtained their permanent residency based on the presumed validity of the marriage when they find out that the marriage wasn’t valid to begin with because their prior divorce decree or their spouse’s prior divorce decree wasn’t valid.  Just because you have a divorce decree signed by a judge either in another state, in your own state, or in a foreign country, does not mean that CIS will recognize the Decree as being valid. Further, there are federal monetary fines & possible imprisonment, as well as deportation consequences if marriage fraud or bigamy is implicated.  

So how do you know for sure if your prior paperwork will hold up if you want to sponsor a subsequent spouse for a green card?  Always start with consulting a competent family lawyer in your jurisdiction. That lawyer will need to know the location of both spouses who were party to the divorce at the time the divorce was filed and how long they’ve been living in that jurisdiction for starters.  Often, a state will not recognize a quickie divorce such as one obtained from the Dominican Republic or other countries that don’t require residency prior to filing for divorce, if the state where the couple were residing at the time of the divorce had jurisdiction of the couple and the couple had to legally file in that state; they can avoid their own state’s laws by just crossing the border.  You don’t want your whole case resting on a house of cards that could collapse if one divorce decree does not hold up later down the line.  It’s worth the consultation fee to speak to a competent family lawyer.

Kim Kardashian's Aussie Trips Highlight Visa Fraud Problems Couples Face

Kim Kardashian is on an Australian immigration watch list now due to her multiple trips to Australia taken to promote her handbag line and reality TV show. The cardinal rule of visitor visas in the US is that you are here to visit, not work. Aussies feel the same way and expect her to get a work permit or other work related visa for this type of "visit." Many couples I encounter in consultations run into conflicts with this tourist visa problem and what CBP thinks is a conflicting intent. If you plan to work in the US, then you need to enter on a B-1 but can't be paid in the US and have to have a foreign employer (this equivalent of this is perhaps what Ms. Kim should have had when she entered Australia); you can't enter on a B-2 in the US and expect to work. If you really want to work for a US employer or promote your business, you should apply for an H-1B, H-3, J-1, or other form of work related visa.

CBP is also on the look out for foreign nationals entering the US on visitor's visas with the ultimate intent to marry their US citizen spouses and overstay their visas. The fact that they're engaged or have these plans can lead CBP to deny a foreign national entry into the US, because the foreign national is violating the terms of their visa. To obtain a tourist visa, the foreign national had to convince the issuing consulate and the CBP officer at the airport when trying to enter the US that they plan to go back home at the end of their visit (just visiting). Marrying a U.S. citizen shows the opposite of this intent in most situations, unless you can show that the US citizen lives outside of the US or they plan to live elsewhere, which is a difficult burden to meet when faced with a CBP officer.

Lies Discovered by Immigration After You Get Your Green Card

What happens if you lied to immigration to get your green card in the first place or you were inadmissible at the time of adjustment in the United States and CIS found this out after you’ve received your green card? CIS can start immigration proceedings against you by issuing an NTA. You may have relief in immigration court but generally, it's best to stay out of there!

The November 7 USCIS policy memo released by U.S. Citizenship And Immigration Services on when an officer must issue an NTA or refer the file to ICE for determination as to whether an NTA can be issued also affects those are already permanent residents. The memo highlights two situations in which NTAs can be issued when someone applies for citizenship. If the citizenship case involves fraud, the case must be referred to the Review Panel for a decision at to whether an NTA should be issued. There is no discretion; it must be referred. The review panel is assembled at the district office that is deciding the citizenship case. A permanent resident who was convicted of a crime that is considered an egregious public safety case after the time they became a resident must also be mandatorily referred to ICE for determination as to whether an NTA will be issued. Naturalization applications that involve a non-egregious criminal conviction can still be denied on good moral character grounds. If the crime is so old that it falls outside of the good moral character, CIS can make a written recommendation to the Review Board to issue an NTA and this recommendation is sent to a special NTA review panel that holds the naturalization case until removal proceedings have concluded. The NTA will not be issued though until a CIS Review Panel agrees with direct their recommendation of the officer who discovered the fraud. The review panel is located at the CIS office handling the case. The district director who gets involved if they review panel cannot reach a consensus on whether an NTA should be issued. If the NTA is issued, the naturalization application with placed on hold until removal proceedings have ended. But if the review panel does not issue an NTA, the underlying naturalization case will be denied. The only good part of this is that the immigrant avoids removal even though cannot benefit citizenship.

If the review panel decides not to issue the NTA or once proceedings have ended, the naturalization case can be adjudicated an approved if no other grounds block the issuance of approval. So, basically, it if a citizenship case involves past or current fraud, the NTA issuance is not automatic which is generally good news. However, with this memo, it is still unknown as to whether immigrants can provide more documentation to the review panel or appear in person before the panel to challenge the charges against them. We'll have to see how this new policy unfolds in future cases . . .

CIS finally issues "guidance" on when officers will issue NTAs for criminal cases

U.S. Citizenship and Immigration Services announced a new policy today to guide officers in knowing when to issue notices to appear (NTA). An NTA is the charging document that’s filed with the immigration court to place in immigrant into removal proceedings. Once an NTA is issued an accepted by the court, CIS no longer has jurisdiction and the immigrant is faced with dealing with an immigration judge and ice trial counsel who’s trying to get the deported. By law in under the statute, NTA’s have to be issued in certain circumstances. But there are many types is cases where NTA’s are not automatic and this is where this memo is most illustrative. CIS will forward certain types of immigrants who have criminal backgrounds to ice for ice to determine if ice wants to issue an NTA. These include cases egregious public safety cases involving murder, rape, or section abuse of a minor, trafficking and firearms, or fences involving firearms, crimes of violence, ransom, slavery, child pornography, alien smuggling, suspected street gang members or Interpol hits. This list will also affects immigrants who have felonies and have illegally reentered the United States after receiving a removal order. Non egregious public safety criminal cases will also be referred to ice, even if someone is applying for citizenship and is our rate permanent resident. In these cases, it CIS will not issue an NTA itself if ice decides to not issue an NTA. One of the more troubling aspects of this memo is that CIS will refer all cases to ice in which an immigration benefits application has been denied because the person failed to register with NSEERS. This was a failed program that Ast all male immigrants of a certain age from countries identified as harboring terrorists to voluntarily register their whereabouts in the United States following the 911 attacks. Didn make much sense of the times since terrace would be unlikely to register their whereabouts and so it targeted and racially profiled against many people who are innocent of any wrongdoing. Another problem within NSEERS was that many people did not know about it and the program ended many years ago when they are applying for relief now, are denied for failure to comply with an old program that they can do anything about now.

Common Issues on CA Drivers Licenses for Immigrants

It is difficult to obtain a driver's license in CA if you are in CA illegally or can't prove legal status. It may be advantageous for immigrants who are undocumented to keep their foreign driver's licenses valid so they have i.d. and are less likely to get fined or arrested for driving without a license if ever pulled over by California Highway Patrol. California CHP officers typically ask for a valid CA driver's license for anyone who has been in CA for at least 30 days. This can create a dual intent problem for those even in the US legally but on visitor's visas. Visitors who are granted 6 month stays on their I-94s should not be obtaining a CA driver's license if they want to show that they are not actually living in the US but are just visiting. If the Customs and Border Protection agent finds a CA driver's license on a Boarder Crosser or a B-2 visa holder, CBP may deny entry because of this document which may prove the immigrant is living in California. It's a big catch 22.

Another common problem for those legally in the US but who are here on temporary visas or green cards is changing their name, reflecting the correct birth date on the driver's license, a marriage change of name, or proving their identity if the passport biographical page doesn't match the birth certificate. The CA DMV will not accept copies of birth certificates, marriage and divorce certificates, change of name certificates, and other such documents. You must prove the change with an original document. Further, those with conditional green cards who have filed to remove the condition and have an I-751 receipt that extends their permanent residency status, may not be able to obtain extended driver's licenses at some offices because CA DMV only extends green cards based on approved documents, not receipt notices. Ask for a supervisor if this happens to you; there is a big difference between I-751 receipts and receipts for Nonimmigrant visa extensions.

Further, in CA, if your driver's license is expiring in the next 30 days, you can't get an extension unless you have an approved immigrant visa or temporary nonimmigrant visa petition proving you have valid immigration status for an additional period of time. If this new period of time is less than 5 years, your driver's license will only be extended for the term of your visa. Always consult a competent immigration attorney about your situation to determine what options you may have and to determine if any of these requirements have changed.

Be Careful: Permanent Bar Now Retroactive!

In Carrillo de Palacios, the Ninth circuit held that any unlawful presence period before 4/1/1997 can be used to trigger the permanent bar even if the illegal or attempted illegal re-entry happened only months after 4/1/97. The case is currently on appeal because it allows for a new law to be applied retroactively to unlawful presence before the new law (IIRIRA) took effect in 4/1/1997 when the permanent bar and the unlawful presence bars (3 & 10 year bars) were created. The applicant in this case had 245(i) adjustment eligibility if not for the permanent bar and was denied her opportunity to apply for a green card.

Determining Case Status on Waivers filed outside the US

Determining case status is one of the most frustrating parts of the current waiver process outside of the US. CIS offices not only differ on processing times for waiver submissions, but there is usually no way of finding updated information on how long a case is taking. The first place I always recommend is reviewing the consulate's website. Access the US Department of State's website for a list of consulates. Some of these consulates have links to the CIS office assigned to the consulate. Certain CIS offices post processing times in terms of the average monthly processing times. Others, such as the Athens office, allows applicants to track their case by the case number.

CIS Headquarters in the US has received complaints about this inability to track up to date processing information for many overseas offices. As of June 2011, CIS reports that they are trying to implement a "case status online" system for international cases much like that found for cases filed in the US and accessible through www.uscis.gov, but this international system is many months away. Always consult your immigration attorney to determine if there are more recent, available methods for the particular CIS office where your file is located to find out updated processing times.

Direct Filings of Marriage Green Card Cases at Consulates Changing

The One Step Filing Procedure Is Now Rare.

As of August 25, 2011, US citizens residing in a foreign country that does not have a US CIS office in that country, are no longer allowed to directly file their marriage-based immigrant visa cases with the consulate in that country. They have to file the case with US CIS lockbox in the United States. In only cases of rare emergency (such as medical emergencies or where the personal safety of the petitioner or beneficiary is at risk), will CIS authorize the Department of State (consulate abroad) to accept a direct filing when there is no CIS office in that country.

This will not be a popular decision as it eliminates the advantage to direct filing which was cutting out the long CIS processing time that averages 6 months for the file to be approved by CIS in the US), plus the time NVC takes to assemble and request more documents and set up the consulate interview. Now, it will take longer for CIS to approve the case, reroute it to the National Visa Center, then reroute it again to the consulate abroad for the immigrant's interview based on the marriage. Only those US citizens living in a foreign country that has a CIS office within that country will be able to skip the US CIS & NVC processing.

Fast Track Waiver Program Stays in Mexico

The US Consulate in Ciudad Juarez, Mexico receives 20,000 waiver filings (for unlawful presence, misrepresentation, prostitution, and criminal grounds) a year, with two full time workers assigned t the waivers. They have the only waiver system in the wqorld that is two-tracked. A case can be "instantly approved" within 3 weeks, on average, if the officer believes that the case is strong enough or there are no complications with arrest records, or other unresolved issues that need more attention. The cases that are not in these instantly approved batch, head to the backlog, which has taken as long as 16 months for a decision, an incredibly long time for an immigrant to wait abroad for a decision. CIS recently announced that CDJ CIS's fast track program is being considered for all waiver submissions when CIS brings all waiver filings to a lockbox set in the U.S. scheduled to be set up for next year. Right now, no other CIS office outside the US has this fast track program and CIS is making no plans to add the fast track to any of those offices as none have the volume of cases that CDJ has.

DHS Announces New Policy for those in Removal Proceedings

On June 17, 2011, ICE published a memo on their interpretation of when they will use prosecutorial discretion to dismiss pending removal cases. ICE, a subset of the Department of Homeland Security, is aiming its resources on enhancing border security and identifying and

removing criminal aliens, those who pose a threat to public safety and national security, repeat

immigration law violators and other individuals prioritized for removal.

In a letter from the current DHS Secretary to Congressman Dick Durbin published in August 2011, DHS Secretary writes, "President Obama has said on numerous occasions that to DHS it makes no sense to expend our enforcement resources on low-priority cases, such as individuals like those you reference in your letter, who were brought to this country as young children and know no other home. From a law enforcement and public safety perspective, DHS enforcement resources must continue to be focused on our highest priorities." DHS announced that it is organizing a work group with the Department of Justice (DOJ) which has oversight over the Immigration Courts, "to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities. The working group will also initiate a case-by-case review to ensure that new cases placed in removal proceedings similarly meet such priorities."

What does this mean for those currently in removal? Repeat immigration law violators will still have difficulty being released from immigration hold or having their cases dismissed from Immigration Court. Those who have one illegal entry as opposed to multiple entries, misrepresentations, or criminal convictions will likely not obtain prosecutorial discretion and dismissals of their cases. Further, there is going to be a lot of confusion about this policy, especially because DHS said they would consider issuing work permits on a case by case basis. Much like the guest worker program spoken of for years and years to no avail, the work permit option does not exist and may never. DHS confirms that the new policy does not give relief or benefits for anyone including any of those students that would be eligible under the Dream Act.

245(i) Grandfathering Getting Tougher

245(i ) is an ever changing area of court interpretation. The Board of Immigration Appeals decided in Matter of Legaspi that an immigrant spouse cannot always grandfather under 245(i) and independently qualify for a green card if s/he is married to another immigrant who does have 245(i) grandfathering protection. 245(i) allows immigrants who entered the US illegally and who were sponsored for an immigration benefit (IV or labor cert) by a relative or employer by the cut off date of April 30, 2001 to obtain their green card in the US despite the illegal entry. The general rule, without 245(i), is that an immigrant must enter legally to obtain a green card in the US. If the immigrant cannot prove legal entry, the immigrant would have to travel to the consulate abroad to interview for their green card. But 245(i) saves the immigrant from having to travel abroad, if you can prove you qualify. An immigrant is "grandfathered" under 245(i) if they were a beneficiary of a petition filed by that date or were the spouse or child of an immigrant who was the direct beneficiary of that petition filed by April 30, 2001.

The BIA in Legaspi drew the line for grandfathering and made it all that more confusing. Try to follow this one. In Legaspi, the immigrant's wife was the child listed in a petition filed for her father by his father (her grandfather). The immigrant wife's father was the main beneficiary of the petition filed by April 30, 2011. Yes, the immigrant's wife is grandfathered under the father's petition. But, since the immigrant's wife did not have a petition directly filed to benefit her by that cut off date, he could not use her grandfathering status (as the child of a 245(i) beneficiary) to qualify himself as a grandfathered alien because he married her and skip consular processing, the ten year bar, and who knows what else.

As you can read, 245(i) can be very fact specific and complicated. Even 10 years later, it's still being used to qualify family for green cards.

Unlawful Presence & Criminal Waiver Process Changing Worldwide

CIS recently announced in June 2011 that worldwide changes to the inadmissability waiver process are underway. One of the biggest changes affects how long these cases take to be decided. Applicants for waivers can send in their waiver directly to the CIS office assigned to the foreign consulate. Prior to this, Applicants were required to send the waiver packet to the consulate (Department of State) which would then forward the waiver packet to the CIS office. This could take many months, especially for cases in Latin and South American countries where consulates have been notoriously slow. An applicant still has to receive notification from the consulate at the Immigrant Visa interview that they are eligible to file a waiver before the CIS office assigned will accept the waiver submission.

Another important change coming is that US CIS has plans to create one lockbox in the US for the direct filings of all inadmissability waivers, so no waivers have to be decided by overseas offices. This could also save applicants a lot of time and we hope, should streamline the process and make overall decisions more consistent.

The In-Laws & Conditional Residency

Choosing whether to file a joint petition or a waiver to remove the condition on residency often comes down to what you can prove. I speak to many immigrants who have evidence of abuse or that they married for love (not immigration purposes) in the form of affidavits of relatives. Often times, relatives are the only witnesses. However, I usually never use the testimony or affidavits of the US citizen spouse's relatives. I understand that many times, the US citizen's family act helpful and claim to be upset with the US spouse's treatment of the immigrant or the US citizen spouse's immaturity. But when it comes down to it, they are the spouse's blood relations and their loyalty will always be there. Especially since in multiple types of waivers, the immigrant must show that the marriage fell apart because of the other spouse's fault; getting family to turn publicly on paper on their relative is unlikely. Exposing the US citizen's family to the type of waiver case an immigrant is filing with immigration by involving them runs a huge risk of the other spouse finding out what the immigrant is doing. This could lead to the other spouse retaliating by trying to contact immigration and make the immigrant's case even more difficult to prove. In my opinion, this is not worth the risk in 99% of all cases. There are other ways to document cases. Be careful.