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Immigration: Love, Marriage and the GreenCard by Shah Peerally, Esq.
Marriage is a very important concept and institution in the United States, and thus Congress has determined that a foreign national who marries a US citizen spouse has an immediate opportunity to apply for permanent residence under the first category preference. It is good to know that permanent residents (‘green card’ holders) can also file for marriage, but the waiting time for the priority date is long and therefore does not give the beneficiary an immediate chance to get a green card.
The first consideration in matrimonial cases is that the marriage must be bona fide (literally “in good faith”), or a marriage that is not just for immigration benefits. A bona fide marriage is based on the intention of the bride and groom to have a life together while they were married. United States Citizenship and Immigration Services (USCIS), formerly INS (“Immigration”), has different criteria for determining whether a marriage is entered into in good faith. These include, but are not limited to, asset commingling, joint tenancy, shared financial responsibilities and images. It is generally accepted that the couple knows each other’s most intimate things. Therefore, it is very important to document your marriage to prove your bona fide relationship. It is imperative that a person does not enter into a fraudulent marriage. Both the petitioner (the US citizen spouse) and the beneficiary (the person receiving the benefits) will be penalized for a fraudulent marriage and may even result in criminal charges, including prison terms. Although immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it is entered into in good faith.
There must be a valid marriage to file a marriage petition. A valid marriage is a marriage that is recognized in the country where it takes place. For example, if Ram marries Anita in Nevada and moves to California, that marriage will be recognized by immigration. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and thus Immigration will not recognize the marriage. This is very important because you may not know this fact until you have submitted your petitions to the Immigration Service. Also if the marriage takes place in Fiji for example, Immigration will recognize the marriage as long as the marriage is recognized in Fiji. Note that arranged marriages will not be recognized. A proxy marriage is a marriage where the bride and groom do not meet on the wedding day. The exception to this rule is if the marriage was concluded after a marriage of convenience.
Once you are married, the documents can be processed in the United States if the beneficiary (the one who gets the green card) is in the United States, or they can be processed abroad through US consulates. In case of processing cases abroad, a K3 visa can be chosen to reduce the waiting time. Even if the marriage has not yet taken place, you can also bring your fiance with a K1 visa. Such visas are available only to petitioners who are US citizens. On the other hand, in order for a marriage case to be heard in the United States (a process called adjustment of status), the recipient must be in the United States legally, even if only for a day. This means that the person must have entered the US with a valid visa. Those who entered by crossing the border are out of luck unless they benefit from INA § 245(i). This provision will be necessary if any petition in favor of the beneficiary has been filed on or before April 30, 2001. There are many requirements to prove that you benefit from this provision of the law. You should speak to an experienced attorney about your specific case. Also, if you have overstayed your visa, you should definitely talk to an immigration attorney before starting any kind of case.
You should not leave the United States during the adjustment of status process unless you have applied for and received an approved re-entry/parole permit. You should know that parole or re-entry authorization does not guarantee entry into the United States. It only allows you to board a plane and arrive at a US port of entry, where an immigration officer will determine whether or not to allow you into the US. If you have stayed on your visa for more than 180 days before applying for a green card, you should definitely not leave the US. Indeed, you will be subject to a 3-year bar. This bar will prevent a person not only from returning to the US, but also from obtaining permanent residency. At that point, only giving up can help you. It is important to know that exemptions are not easy to obtain. If you have overstayed for more than 365 days before applying, you should not leave, as this time you will be subject to a 10-year limit. The same rules will apply as for the 3 year restriction, except that the restriction is for 10 years and the exemption is much more difficult to obtain.
Once you file your marriage petition, you will be called for fingerprinting and an interview within 3-8 months if the documents are properly submitted. You must attend this interview with your spouse and prove that your marriage is bona fide. At this point, it is highly desirable to have an attorney with you during such interviews. Indeed, a licensed attorney will be allowed to sit with you during the interview. If the referee is satisfied with the interview and the security check is completed; he or she will tell you that he or she will give you an answer soon. In the following week, you should receive a response that your case has been approved and a letter welcoming you to the United States as a permanent resident.
On the other hand, if immigration receives evidence or an admission that the case is fraudulent, you can be arrested on the spot. At this point, you are strongly advised to remain silent until your attorney is present. Otherwise, if the officer is not satisfied, you may be called for another interview or they may reject your case. Technically, if denied, they will give you one month before taking your case to an Immigration Judge. This will allow your attorney to possibly file a motion to reopen the case. If that fails, the case will be heard in immigration court. The immigration judge will hear the case de novo (again) and make a decision. This means that you have to prove your case or the government has to prove that your marriage was not bona fide. Again, it is highly recommended that you hire an experienced attorney to move forward in these cases.
If the case is approved, the beneficiary will be granted conditional residency if the marriage was less than two years old at the time the green card was issued. You should check that you have a fixed residence. Generally, the conditional residence green card is valid for 2 years from the date of issue. You will need to remove this conditional resident status beginning 90 days after the second anniversary of your green card issuance by filing Form I-751. It is mandatory to submit a removal or your status will be terminated. Generally, if you are still married to your US citizen spouse, you will file a joint petition to remove such conditions. If you can prove that your marriage was bona fide, you will be issued a permanent resident card for 10 years approximately 6 months after you file Form I-751. If the Immigration Service has reason to suspect wrongdoing, they will open an investigation and may even call you and your spouse to cancel the conditional interview. If they are satisfied, they will grant you unconditional permanent residence. If not, they will refer the case to an immigration judge.
The question is what happens if the divorce or separation occurs before or within 90 days of the conditional green card expiration anniversary. Below are some possible scenarios.
The divorce was finalized before the application to revoke the conditional residence was filed.
In this case, a conditional relinquishment of residence (Form I-751) must be filed, even if the marriage has not reached two years. You will have to prove that your marriage was entered into in good faith and that it was not your fault that the marriage ended. The process is generally the same as when you file with your wife;
The two-year anniversary of the conditional green card has arrived, and the divorce is not complete. In this case, you will need to finalize your divorce as soon as possible before you can file Form I-751; and
You were able to file your joint petition to revoke conditional residence, and at this time your marriage is in trouble, you are divorcing, and you are planning to separate from your spouse. You must notify USCIS and wait for the final divorce decree and resubmit Form I-751.
There are many other situations that involve revoking conditional residency, such as abusive spouses of a US citizen or hardship. You should speak to your attorney about your specific case.
There are other provisions in the law to protect beneficiaries, namely abuse by the spouse of a US citizen. If someone is abused by their citizen spouse, they will have the right to file for VAWA (Violence Against Women Act) protection. Note that VAWA can also be used to benefit a person. There are also situations where the US citizen spouse dies before the case is approved.
Because VAWA and other exceptions are very unique cases. We will try to cover them in our next article.
And remember, it is highly recommended that you speak with an experienced licensed attorney before filing any type of immigration case.
The information contained in this article is for informational purposes only and should not be construed as legal advice on any subject. No recipient, customer or otherwise of the content of this article should act or refrain from acting based on any content contained in the article without seeking appropriate legal or other professional advice on the particular facts and circumstances from an attorney licensed in the recipient state. Shah Peerally is the principal of the Law Offices of Shah Peerally, located in Fremont, California. The law firm focuses on Immigration Law.
http://www.peerallylaw.com Tel: 510 742 5887 Email: [email protected]
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