VAWA Abused Spouse Green Card Filings Can Halt DACA Approvals

In the latest news from AILA (American Immigration Lawyers Association), filing a DACA (Deferred Action for Childhood Arrivals) case - which doesn't lead to a green card but the chance for a two year work permit - at the same time as a VAWA (Violence Against Women Act) immigrant visa case may slow down the issuance of a DACA work permit:

"The Vermont Service Center (VSC) only adjudicates DACA applications in which a VAWA-related application is also identified . . . . 

If there is a VAWA-related filing at the VSC, a DACA application filed elsewhere for the same applicant will be forwarded to the VSC. Per the VSC, if the VAWA-related application is close to its normal processing time, it will be adjudicated first. If the VAWA-related application is not close to the normal processing time the DACA application will be adjudicated first. According to VSC the transfer process may cause a slight delay in adjudications. The delay appears more significant where the VAWA-related filing occurs after the DACA application is already pending, though some members have experienced faster VAWA-related adjudications where the VAWA-related application is filed first.

Because the DACA processing time is significantly shorter than that for a U/T/VAWA petition, members may want to consider filing clients’ DACA applications first and waiting until the application is adjudicated before filing a VAWA-related application. 

Posted on AILA InfoNet Doc. No. 13093006 (posted Sep. 30, 2013) 

Snowbirds face new challenges in staying in the US as visitors

Snowbirds are usually those in their 60s and above who are retired and live in the US for part of the year when the weather is bad in their home country during the winter months (common for Canadians). Traditionally, it has been easy for many Canadians to do this, often spending 6 months at a time or repeatedly entering the US for 3-4 months at a time frequently through the year, without worry that CBP would stop them and turn them around. These snowbirds blend in well with American culture, many opening bank accounts, owning a summer or vacation home in warm places such as Fort Lauderdale, Florida and Palm Springs, California, and lacking the traditional accent of those from Eastern European, Asian, and Spanish-speaking countries.  But the very things that help these individuals blend so seamlessly into American life are now evidence for CBP to start enforcing traditional dual intent doctrine against Canadians, now that a clear policy tightening down on unlawful presence for Canadians has been announced.    

In April 2013, US Customs & Border Protection clarified its policy on Canadian visitors and unlawful presence. Since 2009, US CIS and US consulates under the purview of the Department of State, have agreed that unlawful presence for Canadians is not triggered for purposes of the 3 and 10 year bars for unlawful presence when a Canadian is waived in with their passport at the border. At consulate interviews in Montreal, Canada’s Immigrant Visa issuing post, officers have felt bound to follow the findings in the system entered by CBP concluding that an unlawful presence bar was triggered or unlawful presence has occurred. 

In its latest memo, CBP indicates that Canadians are not treated as D/S (duration of stay) for purposes of unlawful presence but instead, are treated as having the equivalent of 10 year visitor visas with a maximum authorized stay of 6 months per visit, assuming they are waived in at the border, which remains up to CBP discretion.  

This has a significant impact on many Canadian citizens who have often stayed well beyond the 6 months and may have unwittingly even triggered the ten year bar (which is triggered by 1 year of unlawful presence – not consecutive – cumulative overstays can up to this 1 year!) and are turned around at the border on their next attempted entry for having Immigrant intent (living in the US) and unlawful presence. 

For many Canadians experiencing this for the first time, they find themselves stuck abroad, with their lives, girlfriend, work, real property, and family obligations left behind in the US in an instant and without warning.  CBP has been more traditionally lax in enforcing the Immigrant intent issue against Canadians or tracking Canadian entries. No longer the case.   Canadian visitors must now weigh paths topotential permanent residency, in the US instead of relying on the visitor visa status they have been used to. But even US permanent residency comes with its own challenges and the fear of abandoning residency by filing taxes abroad in Canada or living in Canada for more than half of the year. 

U Visa May Offer Unlikely Solution to Sponsoring an Undocumented Spouse

I have been approached more frequently since March 2013 by adult US citizen children wanting to sponsor their undocumented parents for green cards, now that the new “provisional waiver” law is in effect. I unfortunately have to explain the provisional waiver program is a policy, not a law change, and more importantly, that it doesn’t apply to parents of US citizens if they are hoping to qualify through their adult US citizen child, who is often the only one of their children with legal status. The provisional I-601a waiver program allows an immediate relative to apply for the 10 year bar waiver while still in the US to cut down on separation from their family due to prolonged waiver adjudication that requires that the immigrant wait outside of the US until the waiver is approved and the immigrant visa is issued. The 10 year bar waiver requires that the person being sponsored for the immigrant visa and who is subject to the bar have a qualifying relative for the waiver – a US citizen spouse or US citizen parent of their own. When both parents are undocumented and have no parents of their own in LPR or USC status, even with a USC child, the parents lack the qualifying relative necessary for the waiver. They just don’t qualify. 

So, I’m forced to look at other options. 

The U visa has turned out to be the remedy in many cases. If one of the parents can qualify for the U visa and assuming they are not divorced, the other parent can be added as to the main U visa petition as a “derivative.”

This is one of the only areas in federal immigration law that allows a spouse to be included on the same petition, which if approved, would also allow both undocumented spouses to obtain work authorization for four years and potential to apply for a U visa based green card after three years in U status.  

The U visa has also one of the most generous waivers available, even waiving the permanent bar (which is triggered by illegal entry after a removal order or illegal entry after more than 1 year of cumulative unlawful presence in the US). The permanent bar is otherwise non-waivable and requires that the immigrant stay outside the US for a ten-year period, no exceptions.  

U visas can be used for incidents of workplace violence, even attempted robberies (being held at knifepoint to steal a wallet), attempted car jackings, witnessing another get injured  or being victimized by a mugging as well as many other types of crimes – regardless of whether a crime is only classified as a misdemeanor and even if no visible injury exists as long as the immigrant can prove substantial mental harm from the threatened or actual violence. 

Moving in Mom: Potential Problems for Conditional Green Card Holders

In many cultures, allowing the parent to stay in the spare bedroom for months at a time while visiting the immigrant in the US from their foreign country, is a given. It would be expensive and insulting to stick mom at a hotel or motel. But allowing mom to stay with you and your US citizen spouse can lead to problems that you may not anticipate, especially if you have a conditionalgreen card.  The stereotypical mother-in-law is known to cause a rift between couples and when cultural issues converge upon a US citizen from a different culture and your own, you may find yourself in the middle of supporting your wife or your mother.  I have had many consultations with both men and women who are separated during the conditional period from their US citizen spouse because their spouse couldn’t stand the mother-in-law’s interference, whether real or imaginary.

If your spouse refuses to move back in with you and/or your mother refuses to leave or you refuse to move her out, you may be forced to file for divorce and file for a I-751 conditional green card waiver based on good faith marriage due to the separation because your spouse is not willing to file the joint I-751 petition with you.  The first problem you run into is:

•  You have to prove the separation was not your fault. If you moved in your mother, took her side against your spouse, etc., then it’s nearly impossible to prove that your spouse moving out was not your fault.

• You run into is logistics of proving you were in a real marriage, after the fact, and when your spouse is likely angry with you for seemingly choosing your parent over the spouse.  The divorce decree is not the most important evidence for the waiver.

How are you going to document your commingled financial and physical life with your spouse if s/he has cut off your access to those accounts, refuses to speak with you, you can’t notify the bank without her finding out, or all of the assets were in her name or your separate names? 

What if the tables are turned? Even if your US citizen spouse moves in their brother or parent into your home, and you leave, how can you prove it’s her fault, not your’s, when in many cultures, wives are expected to live with their families or must financially support financially-strapped family members who cannot afford to live on their own? Who looks like the bad guy to CIS?

So, what can you do? Prevention is the best medicine.  Be clear with your spouse about how long you are expecting your parent to stay and agree on the timeline. Get this in writing (a casual email agreeing to this – but don’t make it too obvious! - can help you document this later if your spouse back-peddles within days of your parent showing up).  Have a conversation with your parent about interfering and advising your spouse or you against your spouse’s wishes – at least while s/he is visiting.  If you can afford it, have your parent stay at a hotel or stay with another relative and visit your parent instead of having your parent live in your house.  There’s an old adage that new wives are especially nervous about their role as a wife and may be more sensitive to any comments made by your parent.

How to Choose: Sponsoring Your Spouse as a Permanent Resident or US Citizen

Whether to sponsor a spouse now when you are a permanent resident or later when you become a US citizen does not have a black and white answer and depends on many factors that must be weighed in the particular immigrant’s situation. It’s important to ask:

(1)   How long will it take for the Petitioning spouse to become a US citizen? If a Petitioner obtained their green card based on employment, asylum, U visa, or any other part of the INA besides being married to a US citizen spouse or being abused by one, the earliest the petitioner can apply for naturalization is 4 years and 9 months after the initial grant of permanent residency.  If the Petitioner obtained their green card through marriage to a US citizen, the petitioner is eligible for naturalization only in 2 years and 9 months from the initial grant of residency if the petitioner received their green card based on the Violence Against Women Act’s self-petitioning provisions or I-751 conditional green card waiver based on extreme mental cruelty or physical battery.  Otherwise, since the immigrant has to be divorced from their first spouse to have married their current spouse, there is no other way to qualify for the 3 year eligibility period.

(2)   Does the immigrant spouse (beneficiary of the eventual green card) have underlying visa status now? If so, when does that run out? When does the I-94 expire?   If the spouse is on an F-1, student visa, which is valid for duration of stay and has an optional practical training period for usually a year after program completion, you may be able to buy some more time and allow your spouse to remain in valid nonimmigrant while you wait for your citizenship eligibility. But if your spouse is at the end of her program, has no job prospects, and may be falling out of status, filing an Immigrant Visa may be helpful to a judge if she is placed in removal later; the judge may take this piece of evidence as her eventual means to residency once you become a US citizen. 

(3)  Look to the future. What is your spouse’s future non-immigrant visa application plans? The negative to filing an immigrant visa when an immigrant is on an NIV (non-immigrant visa) such as an F-1 student visa or even a B-2 visitor’s visa is that concurrently filing the IV violates the principal of dual intent, which may affect the consulate’s willingness to issue another NIV in the future for your wife. If they look up in the system and see that she has an Immigrant Visa petition filed by her husband, this shows eventual permanent intent to stay in the US, the opposite intent of someone who desires entry on an NIV(non-immigrant visa) for limited duration and which the immigrant must prove a permanent intent to return back home to their country at the end of their temporary stay in the US.

(4)  Look at the actual processing times and compare. When determining if it would be faster to apply for your spouse when you are still a permanent resident, you need to consult 3 different timelines to “accurately” predict the faster route:

·         Review the CIS Service Center where the petition will be filed – how long is CIS taking in the I-130 category filed by an Immediate relative (USC) vs. the I-130 category filed by a permanent resident? How quickly have these categories been moving over the past 6 months?

·         Review the Visa Bulletin if you are filing as a permanent resident. What is the current priority date (the date you filed the I-130 package with the Service Center) that the 2^nd preference (2A) category is on for the country where your spouse is from? How quickly has this category been moving over the past six months?  Add this to the CIS Service Center timing to guestimate how long it could take before you can start the NVC process for your spouse (if your spouse is consular processing) or start the AOS (adjustment of status) process with USCIS?

·         How long is USCIS taking on current adjustment cases in your local district (where the immigrant spouse is located) if s/he is eligible for adjustment? How long is NVC taking to issue packets 2 & 3 and process payments and original documents to set up the consulate interview if your spouse will be consular processing?  This last category is the most unpredictable because you are projecting current processing times onto future decision dates often many years off; processing times could obviously change at the local CIS office or consulates or NVC by that time. 

      Remember, though, it’s not just the fastest processing time that matters. Your spouse must also be able to stay in status unless s/he qualifies for 245(i) or will be willing to face the 10 year bar if there is a substantial overstay and the two of you must be willing to undergo the waiver process which could add many more months to total processing. 

      These are just some of the main factors to consider when applying for an immigrant visa for your spouse if you are a permanent resident. Always consult a competent immigration attorney in depth about your spouse's immigration history, goals, and timing needs. And make sure your spouse is in on the consultation as well. After all, you are planning your future together.

Challenges to Marrying an Immigrant for Those Facing Retirement

Must you choose between preserving your legacy and assets for your children over securing your immigrant spouse’s green card?  

Keeping Your Assets Private

The Affidavit of Support requires that if you are sponsoring your spouse for a green card, you must be willing to reimburse the federal government for any public assistance benefits made to your spouse 10 years after s/he obtains their green card, even if you get divorced.  Usually, this doesn’t scare one away since these payments would not be anticipated because the spouse chosen is unlikely to fall on public assistance considering their own assets and/or career and education level.  On the I-864, Affidavit of support, you do not have to disclose your assets if you made enough income according to the guidelines CIS follows for your household size.  This is one way to keep your assets private. But what about the green card interview? 

Keeping Your Assets & Income Separate 

CIS is not going to believe that the marriage is real (bona fide) as opposed to legal, if you don’t commingle your assets or share your finances with your spouse. CIS is stuck in the version of the 1950s couple who combine bank accounts, credit cards, have life insurance and health insurance for each other, and have access to each other’s money. In CIS’s view, it tends to show a real marriage if you are willing to give your spouse access to your money.  The modern marriage where all assets are separate and everything is divided equally between separate accounts without access from the other spouse is a much harder sell. Obtaining a greencard for a spouse creates a special problem for those in or approaching retirement age who are perhaps on their second or third marriage and have already placed their assets, including bank accounts, into a trust for the benefit of their children or other living heirs (a process most likely done before even meeting the immigrant).

Making Changes to Existing Trust & Will

It can be a nightmare taking assets out of the trust and commingling assets, changing the trust and the will, not to mention alerting the and alleviating the concerns of the heirs to any changes the US citizen spouse is now making. There is always the possibility that the heirs will not approve of the new marriage or will suspect the immigrant of marrying the US citizen spouse just to get a green card and “get their hands” on the money.  The US citizen faces the potential of their heirs challenging any asset move from the trust or any addition of the immigrant as a beneficiary to the trust even though the trust is revocable by the US citizen during his or her lifetime. The common way to challenge the change is to claim that the US citizen has been pressured by undue influence or lacks the mental capacity to make wise financial decision. If there is a power of attorney already signed for fiduciary decisions that grants a child or children the right to step in for their US citizen parent (which is quite common to be completed at the same time the trust is drafted), this potential becomes much more realistic. Unfortunately, I have seen this happen in practice. An adult child who is not involved in the life of the parent at all takes over the bank account based on an old fiduciary power of attorney when s/he did not agree to their parent’s addition of the immigrant as a beneficiary, even though their was no established legal incapacity. 

This scenario also places the immigrant in a defensive and difficult position, trying to convince the other spouse that they don’t want any of their money, are only in the marriage for love, but also must have some joint commingling of their lives to satisfy USCIS that it’s a real marriage or else green card issuance will not happen.  It’s important to talk to your potential heirs about this change, introduce them to your spouse if you believe your changes would be contested, to try to stave off such a scenario.

As for immigration, I have used revocable living trusts for elderly or retired couples in cases where it was a nightmare to change everything and where other assets that are not in the trust such as life insurance and health insurance and can be jointly held are in existence and the couple can still show that they pay bills together and each contributes a substantial amount towards those regular, recurring monthly expenses. 

As for any marriage case, timing of when such accounts are opened, how active they are, and how long they remain active and open are all factors CIS will consider.  It’s not impossible to obtain a green card for your spouse without uprooting your entire financial and investment plan already in place but you must have some very convincing reasons to keep the status quo for CIS to be convinced.

Whichever immigration attorney you work with, be sure to inform him or her of the existence of a trust and what is covered within it and what you can and cannot due to mingle your assets and financial lives. Having a probate attorney who is willing to work with your immigration lawyer is even better. 

Warning! Filing Good faith marriage conditional green card waivers late increase odds of denial

“Help! My conditional green card expired over a year ago and I’ve been separated from my spouse and I don’t know what to do.”  I hear this a lot. 

If you are separated and you have a conditional green card, you can still file a waiver petition late (after the expiration of your two year card) even if you received a letter from CIS terminating your residency.  You can even file late from outside of the US (but it may be difficult to re-enter the US until you receive an approval). So how late is too late? I had one case that was 4 years late and we were still able to get it approved, but it was based on extreme cruelty – which arguably there are more extenuating circumstances to explain the drastic display (fear of spouse, in hiding, etc.).  There is no set time period that cuts off your ability to file a conditional green card waiver based on good faith marriage or on any I-751 waiver ground.

• The difficulty you will run into is finding all the documents needed to prove the initial marriage was bona fide from an immigration perspective; the longer you wait, the more outdated the financial records, pictures, and other documents become and usually the more difficult to track down. 

• You also need a reasonable, documentable excuse for the late filing – you can’t just file late and hope for the best and you must affirmatively request acceptance of the late filing with your excuse. The more documentation you can provide for that late filing, the better (did you lose your job, move multiple locations, outside the US for a relative’s illness, did you suffer a dramatic loss of a loved one, get injured? Incarcerated (hope not!)? 

Often, a good faith waiver or a I-751 joint petition has been denied and the immigrant never left the US after receiving the denial notice and despite being told that residency has been terminated and the immigrant is subject to removal and accrual of unlawful presence.  Even in this situation, it may be possible to file late – on the same or a different waiver ground or even with a new joint I-751 filing. If it’s on the same ground, be careful because CIS will compare your old filing against the new one – so get some new arguments or evidence that wasn't accessible before (and document that) to obtain a better chance of denial. 

The ultimate catch 22 is that the longer you wait after a denial to refile will give you potentially more time to document your case but also it also runs into the problems of being at risk for removal because you are out of status. Right now, there has only been one court case where the judge held that filing a subsequent waiver or joint petition after a denial does not actually place the immigrant back into valid immigration status for purposes of unlawful presence accrual if the petition is later denied again. Only the initial I-751 filing filed late can do this according to the court. Always consult an attorney about the latest policy on this before you go forward with a late filing where you have had a waiver or joint filing denied previously. 

Hedging your bets? Filing different family immigrant visas at the same time

It is possible to have more than one type of Immigrant Visa petition filed by a family member for the same person pending at the same time. Huh, you say? The filing of one immigrant visa petition does not invalidate or stop the other from being processed by USCIS assuming it's not the same type of immigrant visa petition filed by the same family member (i.e., you can't have one I-130 filed by your spouse and then file another one from the same spouse while the other is still pending or hasn't been terminated by USCIS or the National Visa Center (US Dept of State) due to failure to respond to NVC documentation requests). But you may be able to file an I-130 visa petition by a lawful permanent resident spouse while at the same time have an I-130 filed for the immigrant by their US citizen sister or brother. But why would someone do this? It’s double the fees, double the pain of assembling documentation and just more work.

It all comes down to processing times and that visa bulletin backlog of visa numbers that can fluctuate widely depending on what category your immigrant visa petition falls into.  For example:

As a US citizen, you may want to sponsor your parent for an Immigrant Visa. Five years ago, your uncle, also a US citizen, may have filed an Immigrant visa petition for your parent, your uncle’s sister.  Even if the uncle’s Immigrant Visa petition was approved, it may be faster to apply for your mom on a separate Immigrant Visa petition based on your parent-child relationship now that you are a US citizen, since parents of US citizens are not subject to the visa bulletin’s waiting periods for available visa numbers.

But another consideration is your parent’s immigration history and visa entries. If your mother has been in the US on an expired visitor’s visa for any period of time, she is ineligible to apply for a green card in the US based on your uncle’s petition because she is not an immediate relative (a parent, child, or spouse of a US citizen) for purposes of that petition, the only type of relative where unlawful presence is forgiven. For example, if your uncle’s Immigrant Visa petition for your mom’s case was now current and she even has a consulate interview scheduled to interview for her green card, it may be better to instead file a separate Immigrant visa case based on your sponsorship, thereby classifying her as an immediate relative so she can apply for adjustment of status in the US and not leave the US.

This is especially crucial if she has overstayed her visitor’s visa I-94 authorized stay by 1 year or longer and then leaves the US; by leaving the US, she would trigger the 10 year bar and may be stuck outside the US without a qualifying relative for the waiver (US citizen children are not qualifying relatives for the 10 year bar waiver!).  This example shows that processing speed is not always the most important priority in assessing which Immigrant Visa petition is the right one in any particular circumstances. 

Tips for Surviving Your Marriage Green Card Interview

The marriage green card interview can be extremely intimidating process. You have a lot on the line, your future together, the ongoing ability of your spouse to work and stay in the US, and you can have little notice from CIS to prepare for it (averaging 7-30 days depending on the work load of the CIS office where you live and where your case is assigned). Remember throughout this process that you have rights and options:

•      You can reschedule your interview at least once if you cannot make it for work, health or other unavoidable obligations and can document that. You must obviously inform immigration by at least sending back the interview notice via certified mail before your interview with the rescheduling request to prove the request.

•       You have the right to have an attorney present at your green card interview. This is not required, but always advisable if you can afford it. Remember thought that not all immigration attorneys are the same; thoroughly interview and vet your attorney to make sure they understand the amount of documentation your have, can help you counter any challenges your case may have, and prepare you for what’s to come.

      If you are one of those couples that get invited back for a second interview (which can happen more if you appeared without an experienced attorney the first time since you likely did not know what documentation to provide the first time around), again it is wise to bring an experienced immigration attorney with you and it can be truly critical to do so at this stage. Usually couples are separated on the second interview, and asked a series of questions and the officer compares the couple’s answers. This interview is referred to as a “Stokes” interview and is usually conducted for suspected marriage fraud. Having an attorney present helps because this person, first and foremost, acts as a witness to what is happening so it’s not just your word against the officer’s. 

And, if you have a second interview, the officer is already questioning the bona fide nature of your relationship and is skeptical of your marriage. 

      This could be your last chance to refute any derogatory or questionable documentation or answers, especially if a notice of intent to deny is not issued, a step that CIS can skip altogether.  A competent attorney can also ask for a supervisor or cut off an interview if inappropriate questioning occurs, which is so hard to tell when a couple goes into an interview alone, worried about where that line is. Is it ok to ask about the couple’s sex life? How much personal information can the officer ask about? How long should the interview, itself, be before a supervisor is brought in? How are officers allowed to talk to you? 

An experienced attorney can also help clarify any legal issues or counter the officer if the officer is asking for documentation that is not required for an approval or may be particularly singling out one type of evidence and discounting all others. 

•             If CIS claims that your session is being videotaped and later issues a denial relying on your testimony during the interview, you have a right to see that video tape.

•      You do not have to submit all joint documentation of financial accounts you may have together; this is up to you. If the officer asks for a particular piece of information or documentation such as health insurance, which you wish to keep private or do not have, you have a right to not offer it.

•      You have the right to remain silent! Do not spill your guts. The officer may seem friendly and talkative. Many are great people. Don’t let down your guard. Ever heard of a person fishing for information? The officers are looking for signs of fraud and even if you think your case is easy and clean, you never know how an officer will interpret your comments. The more relaxed you feel, the likely more talkative you will become in your interview. Remember to listen exactly for what is being asked of you. Do not elaborate or go off on a tangent that you may not be prepared to answer questions that lead from that tangent. A competent attorney’s goal is to get you in an out of that interview as soon as possible with just the necessary information the officer needs. Green card interviews should generally not last more than 20 minutes.    

Your Spouse Withdrew Your I-130 but Now You're Back Together: What Now?

Sometimes a spouse can get angry or make a rash decision such as withdrawing the I-130, Immigrant Visa petition based on marriage, for the immigrant spouse. So what happens when to your immigration case if all is forgiven and you're back together? 

Once an Immigrant visa is withdrawn, it is denied and there is no way to “reinstate” it. A new Immigrant visa petition or I-130 application with fee must be filed with USCIS. You do not get to skip ahead of other couples in the processing time with the Service Center either because you had an I-130 before.  If you do file a new I-130, remember, this petition remains active at the whim of the petitioning US citizen or LPR spouse; the immigrant can’t stop a withdrawal from happening by their spouse.

Also, your interview will be tougher at any new green card interview based on the new I-130 filing, CIS now curious why the first marriage did not last and whether this one is viable, although legally viability is not a ground for a denial of the petition. But in reality, CIS officers will be skeptical of the couple and will review your joint documentation and reasons for separation closely. Adjustment of Status, the green card application that is usually attached to the I-130, is a discretionary petition, that can be denied by an officer if the officer believes that the immigrant’s actions led to the first withdrawal (cheating on the other spouse, for instance) and unless you can show rehabilitation, the I-130 may still be approved but the immigrant may have to consular process (instead of benefit from adjustment in the US) if the adjustment application is denied based on discretion. Be careful when you re-file an I-130 that you can trust what your spouse is going to say at that subsequent green card interview as to why the case was withdrawn the first time around and whether you can trust your spouse through the process.

Similarly, if you get divorced while your I-130 is pending with USCIS, your I-130 will be denied when CIS discovers the divorce or at the green card interview when CIS is made aware of the divorce when it is disclosed. The I-485  (green card application) and I-765 (work permit) applications will also be denied. CIS won’t grant a marriage-based immigrant visa petition if the parties are divorced.

If you successfully submitted our I-130, paid the Immigration Visa fee, and submitted original documents to NVC including the Affidavit of Support for purposes of consular processing,  but have yet to submit the DS-230 with former spouse information and you were divorced during some part of your immigrant visa processing stage before the consulate interview to decide the Immigrant Visa based on the marriage instead of applying for adjustment of status, your only hope of saving the I-130 is proving that the divorce you obtained was invalid under the state law where you obtained it.

This may be a much more viable argument if you obtained a quickie divorce abroad in a foreign country where you no longer reside and where your spouse no longer resides or have done the same in another state that may not have jurisdiction over your divorce based on residency requirements that may be imposed in that state or your home state that may require you to submit to the jurisdiction of its family code. This is obviously as complicated as it sounds; talk to an experienced divorce attorney in the state or country where you obtained your divorce as well as an experienced divorce attorney in the US state where you regularly reside to determine if you can find a way to invalidate the divorce or provide CIS proof with the state’s non-recognition of the divorce for immigration purposes. Otherwise, you will have to start over with a new I-130 immigrant visa petition, start over with processing times (often up a year once the process is started) at CIS and NVC, and re-pay CIS and Department of State NVC fees.

Is it Possible to Live in Separate States, Be Sponsored by a Spouse, and Get a Green Card

I often come across couples who are not living together but want to obtain a green card for the immigrant spouse based on the marriage. Even the Immigrant Visa form for family sponsorships request to know how long one has been living with their spouse; there's really no way around it, no way to hide it from immigration. So how do you face this head on and still prove it's a real marriage?

In this economy, more and more people are taking jobs anywhere they can find them, even when it means living apart from their spouse. A special consideration is the arranged marriage. Many times, family members are the ones barring the couple from living together - only allowing it after one gets a job that the family approves of or until the formal religious wedding occurs, regardless of the legal wedding happening months earlier. Traditionally, CIS has seen cases where students get married and one has graduated and the other hasn't and the one still in school can't leave the program or their financial aid package to follow the other spouse who has obtained a job in another state. CIS is more likely to understand this at the initial interview for adjustment of status (green card application in the US), and this gets much harder to prove a real marriage if the couple is still separated two years later when the conditional green card is expiring.

Showing ongoing communication between the couple, frequent visits to see each other, and documenting the underlying reasons for the separation can help the interview go more smoothly. Affidavits from family members are not so convincing usually to document those visits and that interaction as family are seen as biased by immigration, willing to say anything for their son or daughter (the spouse).  Providing a lot of financial commingling and other evidence of bona fide marriage can be crucial in these cases; the more you have the better.

Provisional Waivers May Be Impossible for Those with Even a Minor Crime

In an April 14, 2013 meeting with USCIS Headquarters, the American Immigration Lawyers Association asked USCIS to clarify when a provisional waiver applicant's criminal past will automatically exclude the applicant from the provisional waiver process. The current standard under the regulation requires CIS to deny any case filed under the provisional waiver program if USCIS has "reason to believe" that an applicant's criminal conduct could lead to a finding of inadmissability besides unlawful presence by a consulate officer when the applicant travels abroad.  USCIS failed to describe how a "reason to believe" is measured but more importantly, explained that USCIS officers will not analyze a crime or even the documentation that an attorney provides to counter such a finding that is filed at the same time with the provisional waiver filing.

Although USCIS has explained that immigration officers deciding these waiver cases will be trained, it is too early to know how strict this "reason to believe" standard with no clear definition is going to be applied. From a worse case scenario, someone with even a misdemeanor DUI with no jail time could be excluded. The officers are only located in one state and are not considered experts on state law so many immigration attorneys fear the worst at this point, that any criminal act will lead to a denial of eligibility for a provisional waiver. The recent minutes from the AILA meeting with CIS lean towards the accuracy of this interpretation. To view the original minutes, view AILA Infonet Doc 13041143 at aila.org.

Green Card Holders Wanting to Sponsor Spouse Need to Watch Out for Abandonment Issues of their Own

Obtaining a green card is a dream come true for many immigrants and the last thing any green card holder would want is to loss his or her permanent resident status. Many people apply to become citizens through naturalization as soon as they are eligible to avoid the possibility of ever being stripped of their residency and having to worry about how long they’ve been outside of the US while a permanent resident. 

Abandonment
A green card holder may lose permanent residency if they commit a certain criminal act or acts after becoming a green card holder, lied to obtain their green card, or have taken certain actions that show CIS or CBP that they no longer want their green card. These acts of abandonment can include if the green card holder:

1) Moves to another country intending to live there permanently

2) Remains outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether a green card holder’s status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year (and . . . a re-entry permit is only one factor CBP looks at in determining whether you’ve abandoned your status – it doesn’t guarantee you’ll be let back in);

3) Remains outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. Remember, though, in determining whether a green card holder’s status has been abandoned any length of absence from the United States may be considered, even if less than 1 year;

4) Fails to file income tax returns while living outside of the United States for any period';

5) Declares his or herself a “nonimmigrant” for purposes of U.S. tax returns (to avoid paying US taxes);
Customs and Border Patrol (CBP) will look at the totality of the circumstances when a permanent resident is leaving or entering the U.S. They will inquire into how long they have stayed outside the country, for what purpose, and will weigh the green card holder’s answers against the elements listed above as well as any documentation you have proving that you still have significant family ties in the US, a life here (such as bank accounts that are actively used, property, work obligations, etc.)

Green Card Holders Wanting to Sponsor a Spouse
A green card holder may sponsor his or her foreign spouse in obtaining some type of legal status to enter the U.S. The motivation for such sponsorship is apparent, green card holders want to be with their spouses and build lives together in the U.S. However, the risk for abandonment arises frequently in these situations due to the fact that the green card holder spouse all too often leave the U.S. to be abroad with their spouses during the processing of the sponsorship application.

This can come up easily for newlyweds, especially if immigration bars or the lengthy waiting periods on the visa bulletin for some countries mean that that the immigrant spouse can’t come to the US for 8-10 years. The permanent resident spouse wants to be with their spouse and lives with them abroad – but this could bring down the whole application if CBP sees how long the green card holder has been out – the catch 22 (it’s a real marriage so you want to stay with your spouse, but you can’t stay out long without jeopardizing your own green card).

For example, a permanent resident woman married to a Mexican man may find it convenient and almost irresistible to cross into Mexico to wait with her spouse to obtain status. As stated in the first element above, moving to another country permanently is grounds for abandoning a green card. Here, let us assume that the green card holder spouse spent more time in Mexico than in the U.S. in order to be with her husband. With those facts, for all intents and purposes she would be living in Mexico and making a life there. This goes against a very important policy consideration that the U.S. government has in allowing for permanent residence in the first place: the U.S. wants immigrants to live, work, pay taxes, and make their lives in the U.S. Thus, even though the hypothetical green card holder woman might have a legitimate reason to want to be in Mexico to wait for her Mexican husband to obtain status, this is not a sufficient reason for the U.S. government. She would still be at risk for abandoning her green card, thus negating the sponsorship application altogether. 

There may be alternatives to just waiting out the green card eligibility in the foreign country. Perhaps the immigrant has a college degree or job offer in the US? Trying for a long-term non-immigrant visa (which would have the benefit of the immigrant being able to visit their spouse in the US) may be possible. Consult an attorney regarding your options.

Special Immigrant Juvenile Status May Be Faster Route to Green Card for Kids Instead of Adoption

 In 1990, the U.S. Congress established Special Immigrant Juvenile status (SIJS). SIJS is designed for non-U.S. citizen children who do not have permanent residence and have been abused, neglected or abandoned by one or both parents and need a green card. It is an alternative to an otherwise, potentially lengthy and sometimes, impossible, adoption process.

For a child to obtain SIJS, a U.S. state juvenile court or State court (such as a probate court that awards guardianship) must:

1. Make the child dependent on the court (or place the child under the legal custody of a state agency or other individual appointed by the state or individual appointed by the state); and
2. Declare that the child cannot be reunited with one or both of his or her parents due to abuse, abandonment or neglect; and
3. Find that it is not in the best interests of the child to be returned to his country of citizenship.

SIJS allows a child to apply for a green card while remaining in the United States, despite how the child entered (even if entered illegally) and is a much faster process than traditional adoption in most circumstances. Adoption can take much longer if the home country must first approve of the adoption or if the adoption is subject to the Hague Convention. In determining if guardianship should be granted or the child is a dependent of the state, the court will weigh the totality of the circumstances in determining the child’s s a care and custody, but CIS has the final say in determining SIJs eligibility and a potential green card for the child.

From a timing standpoint, the SIJS application with USCIS can be filled concurrently with the green card application, granting the child a work permit (a way to a state ID and social security card) within 3 months on average while the case is pending with CIS. 

Immigration based on adoption would take much longer and in some cases would require the adopting U.S. citizen(s) to travel to the foreign country and stay there for some time and finalize an adoption abroad. There is also a physical custody requirement of two years with the adopting parents to formalize the adoption for immigration purposes. Another difficult issue has been when to permit the biological mother of a child born out of wedlock to release her child for foreign adoption without the consent of the biological father, if the mother cannot provide proper care. This is difficult because the father could be out of the child’s life or worse, be unwilling to consent.

Another benefit of SIJS is that the court can retain jurisdiction over the child even past the age of 18 whereas if a couple adopts a child for immigration purposes, the adoption must be legally final by the age of 16. For SIJS to be successful, it is advisable to work with both a probate or juvenile court attorney and an immigration attorney who can work together on the case.

The Good & the Bad of the New Provisional Waiver Program Rule for Unlawful Presence Waivers

The Federal Register will publish a final rule tomorrow announcing CIS's new regulation regarding the provisional waiver program. Since January 2012, many US citizens and their family members have been waiting for this to happen. Although the process is not expected to be available for applying for waivers until March 2013, this is a big step towards its implementation. Although this is a positive step, many of the changes immigration attorneys such as myself hoped would be in the final rule, have been left out.

In my review of the rule (and this is not legal advice that you should rely on! always consult a lawyer about your particular case) . . .

The negatives:

• No appeal of waiver denials. Options: Sua sponte appeal (CIS appeals it of its own volition - yeah, right - not likely), Refile the case, or proceed to your Immigrant Visa interview abroad and once the determination that you need a waiver is made by the consular officer, have your relative file the case with the Lockbox as all waiver filings are now done for those abroad.

• No concurrent filings of the I-212 and I-130. You have to wait until the I-130 is approved before a waiver case can be filed under this program. If you also require an I-212 due to a prior removal order, you cannot use the provisional waiver process and must file the waiver from abroad after the consulate officer makes a determination that you are eligible for the waiver. You file the I-212 at this point, too, and must wait abroad until both are approved and the consulate allows you to return.

• Active removal cases: If you are currently in removal proceedings, this must be administratively closed or case taken off of the calendar before you are eligible to file under the provisional waiver program.

• Only applies to hardship to US citizen parents or spouses. You cannot argue hardship to a permanent resident (LPR) spouse or parent even if your underlying I-130 is based on marriage to a US citizen (but have a weak hardship argument to the US citizen).

• Filing for a provisional waiver does not guarantee you from being picked up, detained, or deported. It does not provide any type of legal status, temporary work permit, or right to stay in the US.

• No notices of intent to deny are issued in cases when CIS is going to make a determination that you have another ground of inadmissability (i.e., misrepresentation) besides unlawful presence and are ineligible for the provisional waiver process. You basically get no warning except for an RFE (request for further evidence) which CIS expects to issue mostly on cases lacking evidence of extreme hardship.

• Those awaiting rescheduled or scheduled Immigrant Visa interviews at consulates abroad who have delayed are waiting for the provisional waiver process are not eligible to file a provisional waiver. If NVC already set up your interview appointment, you are not eligible to file for the provisional waiver and must wait for the consular officer to make the determination that you are eligible for a waiver and you must remain outside of the US until the waiver is approved and the consulate allows you to return. The only way around this if you are still in the US and have delayed your interview is if you have a new Immigrant Visa case filed and are seeking to file the provisional waiver based on that new case.

• Only unlawful presence can be waived through the provisional waiver process. If you also have to file a misrepresentation, smuggling, or criminal waiver, you cannot file a provisional waiver.

The good news:

• There is no limit on how many times you can file for a waiver under the provisional program. Realistically, though, a refile needs to have different or more persuasive arguments to avoid a different result and the refile, itself, does not guarantee that you won't be deported during that time as the filing does not guarantee any kind of legal status.

• A denial of a waiver case will not necessarily result in the issuance of a Notice to Appear (NTA), the charging document that lands you in removal proceedings, unless you are a person that falls within ICE's enforcement priorities who ICE would not grant prosecutorial discretion.

• DACA (Deferred action for childhood arrival) cases are eligible who are in removal proceedings or ICE has granted prosecutorial discretion to as long as you can convince ICE to administrative closure of your case.

It's important to remember that this program does not change how difficult it can be to establish extreme hardship and in no way lessens the standard of proof required. It does not change the law, itself, only the filing procedure. It would be extremely dangerous to your future to approach this process without mounds of proof and strong arguments, exposing yourself to immigration without a strong case.  Always, always consult with a competent attorney before going forward with any immigration case, especially one that outs you to ICE and CIS, to determine what options are best for you.