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.