Friday, December 30, 2011

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.

Wednesday, December 28, 2011

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. 

Thursday, December 22, 2011

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. 

Saturday, December 17, 2011

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.

Thursday, December 01, 2011

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.