Friday, April 26, 2013

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.

Saturday, April 13, 2013

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