New CIS Appeals Office Decision on Permanent Bar Helps Those Who Entered Illegally Prior to 4/1/97

We all know about the dreaded permanent bar = the law that was implemented on 4/1/97 that said anyone who was illegally present in the US for a year or more or who had been deported and then tried to illegally re-enter after either of these could not come back to the US for ten years. No waiver. Period. In recent months, CIS has wanted to retroactively apply this law to those who re-entered illegally before 4/1/1997 - before the law was in place.  If a person illegally re-entered after the effective date of the law, even if the unlawful presence was before 4/1/97, current case law in the 9th Circuit says the permanent bar applies. But this week, the CIS  Administrative Appeals Office gave immigrants a break finally on the permanent bar with an unpublished decision  from December 29, 2011 (reposted on Aila.org).

The Field Office Director of the CIS San Francisco, California office had denied the Application for
Permission to Reapply for Admission into the United States after Deportation or Removal (Form 1-
212), and the Adjustment Application filed by a man whose brother was a USC and had an approved Immigrant Visa available to him based on this relationship.

This is the factual summary from the decision:

"The applicant was a native and citizen of Guatemala who initially entered the United States without inspection on or about March 29, 1985. He was taken into custody by U.S. immigration officials on March 30, 1985, and found to be subject to deportation for having entered the United States without inspection pursuant to section 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(2). The Immigration Judge granted him voluntary departure to occur on or before October 10, 1985. However, the applicant did not leave the United States by October 10, 1985. Rather, he was deported to Guatemala at the expense of the U.S. government on October 11, 1985. And, he reentered the United States without inspection on or about November 30, 1989. Subsequently, on January 28, 2011, he filed an Application to Register Permanent Residence or Adjust Status (FOlm 1-485) as the beneficiary of a Petition for Alien Relative (Form 1-130) that was filed by his United States Citizen sibling and approved on June 30, 2005. The applicant concurrently filed Form 1-212. The applicant was found to be inadmissible (not eligible for a green card) because of 212(a)(9)(C) of the Immigration and Nationality Act - the permanent bar.

The AAO held that the San Francisco CIS Field Office incorrectly applied section 212(a)(9)(C) of
the Act as it only applies to applicants who were removed and then reentered the United
States on or after April 1, 1997. Since the applicant illegally re-entered before that date, he was eligible for his green card and was not subject to the permanent bar under section 2l2(a)(9)(C).

This is a great decision since this comes directly from CIS, itself (the AAO is the internal appeals office within the Department of Homeland Security).

Understanding the Financial Obligation to Sponsoring a Spouse for a Green Card

The Affidavit of Support is a contract with the federal government to reimburse the government for any means-tested public benefits that the immigrant receives in the 10 years after the immigrant is awarded their green card (becomes a permanent resident).  The affidavit of support must be filed with immigration for the permanent residency application to be approved.  If the green card case is not approved, the active support is not binding on whoever signed it.  A U.S. citizen spouse or Lawful Permanent Resident spouse must make a certain income minimum on  a yearly basis to sponsor the immigrant and must produce proof of ongoing employment or sufficient assets as well as have filed the last three years of tax returns and be willing to produce at least the latest tax return to immigration.

The U.S. citizen sponsor is responsible for paying back the government if the immigrant ever applies for and receives public assistance currently in the form of AFDC (cash aid), and non-emergency Medicare, among others.  Means tested public benefits do not include social security, disability, or unemployment wages earned by the immigrant. The U.S. citizen or lawful permanent resident’s obligation to reimburse the Federal governments under the affidavit of support does not end if the couple legally separates or divorces..   The U.S. citizen sponsor is still on the proverbial hook for the remainder of the ten years. The only ways to avoid this obligation are:

1.  Naturalization of the immigrant (immigrant becomes a U.S. citizen; the earliest the immigrant becomes eligible for citizenship is 3 years after permanent residency grant, if still living in marital union with their spouse);
2. The immigrant has worked or is credited with forty (40) qualifying quarters under social security laws;
3. The immigrant permanently departs the U.S.; or
4. The immigrant dies.  

If the sponsor refuses to reimburse, a federal, state, local, or private agency can seek reimbursement from or file suit against the sponsor for all means-tested benefits provided to the immigrant.    

• Marital and prenuptial agreements may be a useful tool for U.S. citizen spouse sponsors to hold the immigrant responsible for any potential reimbursement scenario.  The immigrant may choose in the agreement to waive a right to alimony, property, a spouse’s savings or 401k or other affirmative benefit in exchange for the risk of the Affidavit of Support creates for the sponsor if the immigrant ever falls on hard times in the future. 
• The immigrant may also choose to set up a trust or separate account for use by the U.S. sponsoring spouse and pay into it now, while the immigrant is working and has the financial means to fund it, in exchange for the sponsoring spouse assuming the Affidavit of Support risk. Many couples do not involve agreements at all, believing the potentiality of the immigrant falling on public assistance is so remote that the risk is minimal. 

U.S. citizen or lawful permanent resident spouse petitioners can be worried about this financial obligation being used against them in family court proceedings if the marriage ever crumbles. The immigrant will not get far in introducing the Affidavit of Support as proof of the U.S. citizen spouse’s obligation to provide alimony or other means of support in a family dissolution or alimony proceeding or in settlement negotiations if the marriage later breaks down. The contract is limited to reimbursement of means tested public benefits only and cannot force a family court to order support.   Alimony and divorce agreements are the purview of State family courts, not federal immigration law.

Some Unlawful Presence Waivers to Be Decided Inside the US Before Consulate Interview

The recent announcement from USCIS of its intent to propose a new rule regarding the processing of unlawful presence waivers has sparked a lot of of questions.  This issue is all over the media this week as well and many are confused.

Some Unlawful Presence Waivers to Be Decided Inside the US Before Consulate Interview  US CIS has announced a proposal to create a new rule allowing for those who are having to consular process and are subject to the 3 or 10 year bars for unlawful presence to file their waivers with US CIS in the U.S. before attending their consulate interview. This will eliminate long separation periods, especially in Ciudad Juarez, Mexico, between filing of the waiver and a final decision on the waiver (at which point, only with an approval can the immigrant reenter the US).  Important things to know about this proposal so far:  The provision is not in effect yet. We have no idea how long the rule will take to be implemented, although this is a positive step in that direction. According to today's teleconference with USCIS, the agency plans to introduce the final rule by the end of the year and the draft rule by spring 2012. No cases can be submitted under the provisional waiver process at this time. Only applies to those married to US citizens or have US citizen parents as qualified relatives for the waiver. It does not apply to those with Lawful Permanent resident spouses or LPR parents for purposes of the qualifying relative for the waiver. It applies to those under the age of 21 who have US citizen parents - i.e., immediate relatives. An immigrant parent who is being sponsored by their USC child over the age of 21 but who has either a qualifying USC parent of their own (petitioner's grandparent) or USC wife of the parent for qualifying relative for purposes of the waiver qualifies under the provisional program. Those married to lawful permanent residents or are qualifying for the waiver through LPR parents do not qualify for this special provision. These individuals would still have to consular process first, have the consulate conclude that unlawful presence exists and then file the waiver abroad. Only applies to 3 and 10 year bar waivers. If the immigrant has any other ground of inadmissability (misrepresentation, crimes, etc.), the immigrant must process the waivers (including the unlawful presence waiver) by traveling abroad for the Immigrant Visa interview, receive a determination from the consulate and then file the waivers with the consulate. Under this proposal, if the waiver is approved in the US, the immigrant will still have to travel to the consulate abroad for their Immigrant Visa interview but there will be no need to stick around to file the waiver as it will be considered in effect the minute the immigrant departs the U.S. if it has already been approved by CIS in the U.S.  If you are already abroad and waiting to file your waiver or waiting for your waiver to be decided, currently this provision does not apply to you. What this means for those who may be impacted:  You will have weigh the pros and cons of traveling abroad under the current system or wait indefinitely in the US until this new provision is in place. There are pros to processing as usual (going to the consulate abroad to file the waiver): You have an idea of how long it could take. At the consulate, typical processing times are available so you have an idea of how long it would take for your case to be decided. There is no indication of how long the case will take to be decided once the proposal becomes effective. If some of your arguments will be weaker or unable to be documented in a year or more, it may be better to file now with the consulate while you have updated and stronger proof. You don't want to wait anymore; you want the process over with. The waiver process can be emotionally draining and clients have often put their lives on hold awaiting the outcome of whether they will be separated a long time from each other depending on the outcome of the waiver. There is no guidance on what happens if a waiver is denied in the US under the provisional program. There is great concern that all denials will receive a Notice to Appear for immigration court and applicants will be placed in removal proceedings where cases are usually much more difficult to be approved.

What now? We expect more explanation on the new process once the rule making procedure ends for this provision which could take months before this procedure is put in place and utilized.  Currently, CIS is expecting the final rule to be in place by the end of 2012.

What is the 3 & 10 year bar?    The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) created three year, ten year, and permanent bars on admission to the U.S. for a variety of immigration status violations.These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status. The three year bar to re-entry into the U.S.: The three year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily depart the U.S. The bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. The ten year bar to re-entry into the U.S.: The ten year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily (aggregate = CIS adds up all time in US without lawful presence, even if from different periods of time and different stays). Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection. Again, the bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. The Waiver Option If the immigrant is married to a U.S. citizen or lawful permanent resident, or has a U.S. citizen or LPR parent, a WAIVER MAY BE AVAILABLE for 3 & 10 year bars but not for the permanent bar. To qualify for this waiver, which if approved, allows the immigrant to lawfully re-enter with the immigrant visa and not wait outside the US for 3 or 10 years, the immigrant must prove that his or her USC or LPR spouse or parent will suffer EXTREME HARDSHIP if the waiver is not approved.

The Prenuptial Agreement's Effect on a Marriage Green Card Case

A prenuptial agreement may be the deciding factor for a spouse who is hesitant about being involved with the immigration process in deciding to go through with the marriage.  There’s no guarantee that a prenuptial agreement will actually hold up later down the line in state family court as this varies with each case depending on the facts involved, given the inherently often coercive nature of the terms or the timing. For immigration purposes, though, the content as opposed to the enforceability of the agreement, is often the key issue for CIS when reviewing a marriage-based green card case.  Nothing in the statute requires a couple to volunteer the existence of a prenuptial agreement but if questioned about it by CIS officer at a green card interview, its existence must be disclosed or else the immigrant could face a misrepresentation bar to obtaining a green card and both the petitioner and immigrant could face civil and criminal charges and financial penalties for marriage fraud.

Why would a couple want to enter into a prenuptial agreement?   

• Many modern couples do so to protect assets that existed before their marriage, especially if this is a second or third marriage and they want to be able to leave those assets to a son or daughter.  

• Many couples also use prenuptial agreements so both parties feel that the marriage is being entered into for love and not financial gain and all the cards are on the table from the beginning.  

However, the very existence of a marital agreement may back-fire on the marriage-based immigration case.  

In every marriage-based immigration case, CIS is concerned with marriage fraud and will want proof that the couple married for love, not to evade immigration law.  Very much trapped in the mindset of the 1950s model of what a marriage looks like on paper, CIS officers routinely ask for proof of commingled assets including jointly held and actively used bank accounts, CDs, and stocks, housing held in joint tenancy, joint car loans and mortgages, and joint health, life, and car insurance. The modern couple that keeps their financial lives primarily separate due to retirement age, family trusts, or other needs, have a much tougher case to make.

Marital and prenuptial agreements may also muck up the waters with potentially compromising provisions to the immigrant that could appear as if there is a financial arrangement in exchange for the U.S. citizen’s compliance with the immigration process (i.e., waiver of alimony or child support in exchange for cooperation in signing the Affidavit of Support or cooperating in the joint filing to remove the condition on a conditional green card or non-interference or contact with CIS if the immigrant wants to remove the condition on their own or needs copies of financial documentation in the future for purposes of documenting the bona fides of the relationship).

When the relationship starts to deteriorate, marital and prenuptial agreements have been used by the petitioning U.S. citizen spouses as proof of the immigrant’s intent to marry only for a green card (permanent residency status) after the immigrant has signed the agreement in an effort by the US citizen spouse to maintain control throughout the immigration process and especially, the finances.  For this reason and due to the fact that these agreements are naturally suspect by immigration, they must be carefully drafted. Both parties should always consult a family lawyer and the immigrant should consult an immigration lawyer in addition before signing any kind of prenuptial agreement.