Overstay Rules for Visa Waiver Countries Are Changing!
Visa waiver entrants benefit from a program that Congress created allowing citizens of certain countries to come to the U.S. as tourists for 90 days or less without visitor's visas. To get the government waiver of the usual visa requirement, the tourist has to sign a wiaver of his or her own right to contest removal other than on the basis of asylum. Visa waiver countries include Germany, the United Kingdom, Spain, Belgium, Australia, France, and others. A total of 27 countries currently have this designation.
In a recent 9th Circuit decision (Momeni v. Chertoff, March 31, 2008), the court held that a visa waiver entrant from Germany could not benefit from adjustment of status (green card application) from inside the US despite it being based on marriage to a U.S. citizen, due to overstay after the entrant was placed in removal proceedings before filing for adjustment. Under those facts, the visa waiver entrant would have to consular process and could be subject to an unlawful presence bar (3 or 10 years depending on the amount of time overstayed) which would require a lengthy waiver process to be able to re-enter the U.S. as well as grant from the Attorney General to let him come back despite a recent deportation.
What this case means at least in the 9th Circuit, is that it is riskier for a visa waiver entrant to apply for adjustment after the 90 day alloted stay expires.
CIS local offices may interpret this case to apply to visa waiver entrants who overstay their 90 days and then file a green card case (adjustment) whether or not a person is ever placed in removal, leading to a denial of the green card case. It's a catch in a way, because applying for an adjustment right after entry can lead to CIS concluding that the visa waiver entrant committed visa fraud at entry by really intending to move to the US on their visa waiver (which is the equivalent of a visitor's visa), which could result in denial of the adjustment application and eventual removal. Caselaw in other circuits may also affect visa entrants' ability to apply for permanent residency in the U.S.
Tuesday, May 20, 2008
Monday, May 05, 2008
Abused Spouses Who Enter Illegally Now Able to Obtain Green Card
CIS recently released a memo confirming a nationwide policy to allow battered spouses who have received an approved Violence Against Women Act (VAWA) petition to apply for a green card while in the U.S., despite an illegal entry. Prior to this memo's release, there was no nationwide interpretation of the statute on this issue and various CIS district offices were granting VAWA green cards for those who entered illegally and many other CIS offices were not.
This is a huge victory for battered spouses who entered illegally, many of which could face unlawful presence bars, the permanent bar, or be at risk if had to leave the U.S. to process their green card petitions abroad at a consulate.
This memo was very narrowly tailored, however, to apply to those who entered without inspection, not necessarily pertaining to those who entered by other means, i.e., with a fiance visa and did not marry the USC sponsor but married someone else who turned abusive, or those who entered with J-1s who are having adjustment problems (or other such situations).
This is a huge victory for battered spouses who entered illegally, many of which could face unlawful presence bars, the permanent bar, or be at risk if had to leave the U.S. to process their green card petitions abroad at a consulate.
This memo was very narrowly tailored, however, to apply to those who entered without inspection, not necessarily pertaining to those who entered by other means, i.e., with a fiance visa and did not marry the USC sponsor but married someone else who turned abusive, or those who entered with J-1s who are having adjustment problems (or other such situations).
9th Circuit Finds Adjustment (Green Card) Unavailable to Persons Who Enter the U.S. by Using False Documents or by Fraud; Must Consular Process!
summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)
Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)
On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.
The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.
summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)
Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)
On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.
The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.
Saturday, September 15, 2007
Must the marriage be consummated?
Whether a marriage is considered a sham("fake", i.e., entered into for immigration purposes only, not for love), can hinge on whether the marriage was consummated (the couple had sex). If the immigrant refuses to consummate the marriage, then it can imply that the marriage was a sham. If the US citizen resfuses to consummate the marriage, then fraud on behalf of the immigrant is NOT implicated.
In Matter of M, 7 I & N Dec. 601 (BIA Nov 1957)(in deportation proceedings, the immigrant was found to not have commited marriage fraud even though the marriage was never consummated because he had tried to consummate the marriage and his wife refused and she testified that the immigrant did seek to have sexual intercourse with her more than once but that she refused because she had become interested in another man).
Special rule for proxy marriages: If spouses not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35);
Before filing for any immigrant visa petition based ona marriage that has not been consummated, an immigrant should always speak to at least one competent immigration attorney about the specific facts of their case, especially since this is a complicated area that can turn on the facts.
In Matter of M, 7 I & N Dec. 601 (BIA Nov 1957)(in deportation proceedings, the immigrant was found to not have commited marriage fraud even though the marriage was never consummated because he had tried to consummate the marriage and his wife refused and she testified that the immigrant did seek to have sexual intercourse with her more than once but that she refused because she had become interested in another man).
Special rule for proxy marriages: If spouses not in each other’s presence at marriage ceremony there must be proof of consummation. INA §101(a)(35), 8 U.S.C. §1101(a)(35);
Before filing for any immigrant visa petition based ona marriage that has not been consummated, an immigrant should always speak to at least one competent immigration attorney about the specific facts of their case, especially since this is a complicated area that can turn on the facts.
Conditional LPR marriage breaking up
Yes, the shorter the marriage is, the worse it looks on paper for a conditional green card holder. The whole point of having a conditional green card was congress was worried about sham marriages so there will be skepticism as to whether a short marriage was real to begin with if it breaks up especially in the first 6 months following the initial green card issuance. There's no safe time or date to break up the marriage to protect the immigrant's green card. Documentation and supportable facts can explain a short marriage and an immigrant may be eligible for a "good faith" marriage waiver (which requires a final divorce decree TO FILE the waiver in the first place). This requires that the marriage ws entered into in good faith by both parties, but due to reasons not due to the fault of the immigrant, the marriage split. It requires a lot of joint documentation of commingled assets and proof that the couple lived together for a significant amount of time. The problem arises due to the divorce decree which in some states can take 6 months to get at minimum! (CA, for instance).
If the divorce is not final or even filed at the time of 2 year green card's impending expiration, the immigrant may be eligible for an extreme hardship waiver as well, where the amount of documentation proving a bona fide or good faith marriage is not crucial but can be much more difficult case to prove depending on numerous factors including the (1) the age of the immigrant, (2) length of stay in the US, (3) their home country, and other factors. Again, an immigrant in such a situation should always consult at least one competnent immigration attorney with experience in multiple kinds of waivers to see what option(s) are best.
If the divorce is not final or even filed at the time of 2 year green card's impending expiration, the immigrant may be eligible for an extreme hardship waiver as well, where the amount of documentation proving a bona fide or good faith marriage is not crucial but can be much more difficult case to prove depending on numerous factors including the (1) the age of the immigrant, (2) length of stay in the US, (3) their home country, and other factors. Again, an immigrant in such a situation should always consult at least one competnent immigration attorney with experience in multiple kinds of waivers to see what option(s) are best.
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