Important Precedent Decisions Pertaining to Marriage Based Visa Petition Cases

October 3rd, 2013 No comments
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The case law on marriage based green card cases is substantial and helps inform some of the key issues involved in the process. Here is a list of some of the important cases that still have influence on how USCIS and other immigration related government agencies interpret the laws:

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Matter of B- : The Board of Immigration Appeals held that a proxy marriage must be consummated to be valid under federal immigration laws.

Matter of Agoudemos: A marriage which is voidable but not void without any action to void the marriage is valid under immigration laws.

Matter of H- : A polygamous marriage, even if valid in the place where it was contracted, is against public policy and does not qualify under US immigration laws.

Matter of M- : Where no bona fide husband-wife relationship was intended, a marriage is deemed invalid for immigration purposes regardless of whether it would be considered valid under the domestic law of the jurisdiction where it was contracted.

Matter of Pearson: The marriage following a divorce can only qualify under US immigration laws if the prior divorce is considered valid under the laws of the place where the marriage occurred.

Matter of Weaver: The validity of a divorce should be governed by the law of the state where the parties were domiciled at the time of the divorce.

Matter of W- : A Mexican “mail order” divorce, not ordinarily recognized as valid by California Courts, was not valid under immigration law, thus the applicant was not legally free to marry.

Matter of Kurys: A visa petition filed under compulsion of a court order by a petitioner who stated that a bona fide marital relationship did not exist and she did not intend to live with her spouse is properly denied.

Matter of Arenas: In determining the validity of a marriage for immigration purposes, the law of the place of celebration of the marriage will generally govern.

Matter of DaSilva: A marriage between an uncle and his niece is valid for immigration purposes for a couple who reside in New York but who marry in Georgia where marriage between an uncle and niece are legal. Since the marriage was legally contracted in Georgia and is thus not regulated by New York law, the marriage is recognized as valid for immigration purposes.

Matter of Laureano: A marriage entered into for the primary purpose of circumventing immigration laws is not recognized as valid under US immigration laws.

Matter of Kumah: A Ghanaian court decree of divorce is accepted as evidence that a customary divorce was validly obtained, however, it is not deemed to be conclusive proof of the facts certified therein because of the potential for fraud or error in the issuance.

 

Form I-601A Provisional Unlawful Presence Waiver Approved by USCIS for Orange County Client

October 1st, 2013 No comments
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We just received an approval notice for the I-601A Provisional Unlawful Presence Waiver that we filed a few months ago. The client currently lives with his wife and two children in Costa Mesa, California. He hired us several years ago to handle the I-601 process; however, due to family complications and economic factors, they held off on moving forward with the I-601 for a long time. When the new I-601A process was announced, we decided that would be a better choice. The new I-601A process went int effect earlier this year, and a few months later we filed for our client’s I-601A provisional unlawful presence waiver.

At the time of filing, we knew this would be a strong case. The US citizen wife had a serious medical condition. The couple had two US citizen children together. The wife could not take care of the the two children without the support, emotional and financial, of the husband. Our client had never been in trouble with the law, and the facts of the case were sympathetic. Our goal was to accurately convey the seriousness of the wife’s situation and explain why she would experience extreme hardship if her husband was not allowed to live in the United States.

The I-601A process was implemented by President Obama to reduce the time that families are separated due to consular processing. With the I-601 process, the alien would travel to his home country to process at the consulate. The consular officer might take weeks or months to review the case, and the alien would remain out of the US during that time. If the case was denied, the alien would stay in the home country for ten years. Under the I-601A process, the alien can apply for the waiver while in the United States. If the I-601A is approved, the alien travels to the home country to process the immigrant visa and likely remains separated from his family for a week or so. Then, he comes back to the United States as a lawful permanent resident.

There are several differences between the I-601A process and the I-601 process, and it is important to fully understand the intricacies of each before deciding which path to pursue. With our client, he will now move forward with the visa application process and coordinating his trip to Ciudad Juarez for the consular interview. If you are considering the I-601A process and consular processing, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you during a confidential consultation so you can better understand the process and decide which options are best for you.

What Happens With Immigration Cases If There Is A Government Shutdown?

September 30th, 2013 No comments
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The short answer is it depends on which immigration-related branch is involved and what type of case it is. The various immigration related government entities (USCIS, ICE, Department of State, EOIR, Department of Labor, etc.) have not released much info regarding what will happen; however, a similar issue arose in 2011, and the contingency plans in place then may be instructive. The following is merely speculation and should not be relied upon as conclusive (but hopefully it helps).

USCIS: Many USCIS functions will continue, because USCIS is primarily funded by filing fees rather than appropriations. E-Verify might shut down.

Department of Labor: The DOL is funded by appropriations; therefore, many tasks will be put on hold and some workers will be furloughed. DOL will not process labor condition applications, audit responses, prevailing wage determination applications, applications for temporary or permanent employment certification. The DOL iCert Visa Portal System would be inoperable as well.

Executive Office of Immigration Review: Other than the detained docket, most EOIR functions would likely cease due to a shutdown. This was the plan in 2011.

Immigration and Customs Enforcement: ICE attorneys will continue to work on detained docket cases; however, other cases will not be considered essential and will cease during the shutdown.

Department of State: Visa processing will not continue unless it is a “life or death” matter.

Customs and Border Protection: Borders will remain open during a shutdown; however, it is not clear if applications eligible to be processed at the border will be handled during a shutdown. Inspection and law enforcement are considered essential personnel and will continue to work.

 

Important Precedent Decisions Involving I-751 Petittions to Remove Conditions on Permanent Residence

September 30th, 2013 No comments
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There are several important decisions that have further established the rules pertaining to the Form I-751 Petition to Remove Conditions on Permanent Residence. Here are some of the more crucial opinions. (For more in depth information on the I-751 process, click here.)

Matter of Lemhammad. The Board of Immigration Appeals held that original jurisdiction to rule on an I-751 waiver case lay with USCIS, and the immigration judge could only review an I-751 case that had been denied by USCIS.

Matter of Anderson. A conditional resident can and should apply for any applicable waiver at the same time. For example, a conditional resident that would suffer extreme hardship if removed to her home country but also claims that her marriage was entered into in good faith, should check both boxes on the Form I-751. If an alien becomes eligible for an additional waiver under section 216(c)(4) of the Act due to changed circumstances, the proceedings may be continued in order to give the alien a reasonable opportunity to submit an application to the Service.

Matter of Nwokoma. USCIS retains authority to deny a joint petition I-751 notwithstanding the Service’s failure to adjudicate the joint petition within 90 days of the interview.

Matter of Tee. An alien becomes statutorily ineligible for approval of a joint I-751 where the marriage has been terminated prior to adjudication of the petition.

Matter of Mendes. Where a couple has filed a joint I-751 petition, but one of the parties has withdrawn support before adjudication, the joint petition shall be considered withdrawn and conditional resident status should be regarded as terminated. When the respondent conditional resident has not filed a waiver with USCIS while in immigration court proceedings, the immigration judge should continue the proceedings in order to give respondent adequate time to file such a waiver with USCIS.

If you are approaching the 90 day time period for filing I-751, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez has handled countless I-751 cases of all types and can help you better understand the process. For some of our recent I-751 cases, click here.

Deferred Action for Childhood Arrivals (DACA) Approved for Costa Mesa Client

September 28th, 2013 No comments
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One of our Costa Mesa clients was approved for Deferred Action for Childhood Arrivals. He approached me earlier this year inquiring about a marriage based green card; however, because he entered without inspection, adjustment of status was not a viable option.

The client, who has lived in Orange County since he was very young, attended and graduated from high school in Costa Mesa. He attended Orange Coast College and received an Associate’s Degree. Based on the June 15, 2012 announcement from the Department of Homeland Security, we filed the application for DACA, along with substantial evidence, with USCIS in April 2013. We included evidence to prove that our client qualified and met all the requirements of DACA deferred action including that our client entered the United States before his sixteenth birthday and was under the age of 31 on June 15, 2012. We showed that he has lived in the US for more than five years and has no criminal record of any kind.

Along with the I-765 (Application for Work Authorization) and I-821 (Deferred Action), we provided proof that our client was in the US on June 15, 2012 by providing employment records and a utility bill in his name. We proved that our client graduated from a US high school and Orange Coast College in Costa Mesa. We were happy to receive the approval notice without any request for additional evidence, as that could delay the processing of the case by many months.

Our client was happy with the result, but we still hope that comprehensive immigration reform will provide a more permanent solution for him. We have considered the I-601A provisional waiver route for him, but the standard for proving extreme hardship is high, and we are not convinced that his current circumstance will meet the burden of proof.

If you are considering the Deferred Action process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the process and whether you are a likely candidate for approval.

Joint I-751 Approved Without Interview for Couple in Simi Valley

September 27th, 2013 No comments
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We recently received an approval for a joint I-751 we filed in late June 2013 – less than three months after filing. USCIS approved the case without requesting an interview. We handled this couple’s initial adjustment of status in 2011. The couple dated for several years during high school, and after graduation decided to marry. We prepared all the evidence and documentation including the I-485, I-130, G-325, etc. I attended the I-485 interview back in 2011 and everything went smoothly.

After the I-485 approval, I asked the couple to collect evidence of good faith marriage for the next two years in anticipation of the I-751 filing. (For more in depth information on the I-751 process, click here.) In March of 2013, we began preparing the I-751 and collected documents tending to prove the couple’s good faith marriage including among other things joint car insurance, letters from family members, life insurance policies and photos of the couple together. At the time of filing, we had collected between a hundred and two hundred pages of evidence. Because the couple is still young, does not have kids or a mortgage payment, we expected to receive an interview notice.

Instead we received the approval notice. The couple was excited that the wife is no a lawful permanent resident without conditions. She plans to naturalize in approximately one year when she becomes eligible, and we will help with that process as well. For many of our clients, we handle the I-485 adjustment of status, the I-751 removal of conditions, the naturalization, and any subsequent visa petition filings for family members in the United States and abroad.

If you are in some stage of the marriage-based green card process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez has handled countless I-751 and I-485 cases of all types, and he will help you better understand the process and potential dangers.

I-601A Extreme Hardship Waiver Approved for Santa Ana Client

September 26th, 2013 No comments
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We just received an approval notice for one of our Santa Ana clients. He has lived in the United States since he was a teenager, when his parents brought him from Mexico. He married his US citizen wife many years ago, and the couple had a child together. We previously considered filing the I-601 extreme hardship waiver, but we were reluctant to send him to Ciudad Juarez and risk a denial and subsequent ten year bar on returning to the US. When President Obama announced the new I-601A provisional waiver introduction, we decided it was time to file for the waiver. We filed an I-130 visa petition for the husband. While the I-130 was pending, we prepared the I-601A waiver packet. After the I-130 visa petition was approved, we filed the I-601A with USCIS.

The I-601A extreme hardship waiver process differs from the standard I-601 process in several crucial ways. First, under the I-601 process, an alien unlawfully present in the United States must apply for the waiver in his home country. This is risky. If the consular officer believes the hardship does not rise to the level of extreme hardship, they can deny the I-601, and the alien is stuck in his home country for many years. Under the I-601A process, an alien can apply for the waiver in the United States and receive a provisional approval. Although the alien must still travel to the home country to consular process, he leaves knowing that the case has already been provisionally approved by USCIS.

Second, an I-601A waiver applicant is allowed to file only once. If USCIS denies the I-601A, the alien cannot refile another I-601A. Under the standard I-601 process, an alien could refile an I-601 after denial. This means I-601A applicants must be diligent in presenting USCIS with the most persuasive case possible.

Third, the I-601A waiver only benefits aliens who are inadmissible due to unlawful presence. If the alien is also inadmissible due to prior criminal convictions, the I-601A process will not benefit him.

Wedding rings

In the present case, we showed that the US citizen spouse would suffer extreme hardship if the alien spouse was not permitted to live in the United States. It is important to remember that the examining USCIS officer will not meet or interview the couple before deciding to approve or deny. The officer probably handles several waiver cases each day; therefore, we need to present a persuasive case that clearly establishes why extreme hardship would result.

Unlike the I-601 process, I-601A applicants can only apply once. If the I-601A is denied, the applicant does not have another chance to apply for relief. We need to pull at the examining officer’s heart strings based solely on the paper evidence we provide.

The next step for our client is to move forward with the consular processing of the immigrant visa. Our client will travel to Ciudad Juarez to meet with a consular officer. We anticipate that the trip will take only a week or so, and he should be back in the United States living with his family.

If you are considering the I-601A process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will discuss your situation and whether we believe your case is viable. We will also analyze whether other options might be available.

 

House Republicans Say They’ll Move on Immigration Reform This Year But Offer Few Specifics

September 25th, 2013 No comments
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House Republicans intensified their outreach to Latino groups last week, offering renewed pledges that the House will deal with immigration reform this year. The effort has revived hope among advocates that a bipartisan deal can be reached to address the fate of the nation’s 11 million undocumented workers and students.

The chances of a comprehensive deal passing Congress remain doubtful, advocates cautioned, and they worry that the legislative process will spill into 2014, presenting new complications in a year when lawmakers face reelection battles.

Judiciary Committee Chairman Bob Goodlatte (R-Va.) said Thursday that his panel is working on four new pieces of legislation dealing with border-control laws.

Speaker John A. Boehner (R-Ohio) told immigration advocates in a private conversation this month that the issue remains on the agenda despite a crowded calendar that also includes negotiations on the budget and the debt ceiling, according to a person familiar with the discussions.

Goodlatte, whose committee oversees immigration legislation, has said he is open to granting legal status to otherwise law-abiding undocumented immigrants. He and Majority Leader Eric Cantor (R-Va.) are reportedly working on a bill that would grant such status to young people who were brought to the country illegally by their parents.

However, Goodlatte has said he does not support a “special path” that would give immigrants who broke the law to enter the country preferential treatment over other foreigners in pursuing citizenship. Once granted legal status, those immigrants could apply for citizenship through existing channels, Goodlatte has said.

What is the Form I-751 Petition to Remove the Conditions on Residence . . .

September 23rd, 2013 No comments
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When an alien obtains permanent resident status based on a marriage that is less than two years old at the time of granting the immigrant status, the alien’s permanent resident status is classified as conditional. Two years after conditional resident status is granted, the green card will expire. The alien must file an I-751 petition to remove conditions on residence during the ninety days immediately preceding the expiration date. If the couple is still married at the time of filing, they should file the I-751 jointly with both spouses signing the form. The couple should include evidence of valid marriage marriage including but not limited to joint ownership of assets and property, lease showing joint tenancy, birth certificates of children born to marriage, mortgage documents, shared car insurance, health insurance, life insurance, commingling of finances, affidavits of third parties that can attest to the couple’s valid marriage, etc.

Conditional resident status came about due to the Immigration Marriage Fraud Amendments Act of 1986.

If a couple files jointly, they must file during the ninety day window or the conditional residence status could be terminated by USCIS. Once USCIS receives the joint I-751 petition to remove conditions, the case is assigned to an adjudicator, who will review the evidence and determine whether an interview is necessary. Unlike the marriage-based green card process, the I-751 process does not include a mandatory interview. USCIS has the discretion to approve the case without an interview. If the adjudicator deems an interview necessary, the case is sent to the Service Center’s adjudications unit, where it is assigned a fraud level of A, B, or C. Fraud level A being the most serious and C being the least suspicious. Fraud level A is assigned when there is insufficient evidence of good faith marriage, a large age disparity exists, the married couple does not live together, a prior I-751 was denied or the petition was filed untimely without a good reason.

If a foreign-born spouse cannot file the I-751 petition jointly, he can file the I-751 by himself. There are several bases for filing non-jointly including extreme hardship, good faith marriage but terminated, and victim of battery or extreme cruelty. When filing non-jointly, the applicant can check more than one box. Additionally, the applicant file before, during or after the 90 day period discussed above.

In extreme hardship cases, the applicant claims that termination of his/her residency status and removal from the US would result in extreme hardship. This is the only basis that does not require the applicant to prove that the marriage was entered into in good faith; however, evidence that the marriage was entered in bad faith may be considered as a matter of discretion. In extreme hardship cases, whether the alien has experienced hardship during or prior to her conditional residency status is irrelevant. The key time period is the future and whether the applicant would experience extreme hardship if removed to her home country. Hardship already experienced can have a bearing on hardship that could result in the future however.

Plenty of marriages do not last more than two years. Even if the couple has the best intentions, a bona fide marriage might fall apart in less than two years. The Immigration Marriage Fraud Amendments Act was not intended to punish unsuccessful marriages, it was meant to prevent marriage fraud. For this reason, the IMFA provides for a waiver if the alien can show that the marriage was entered in good faith and she/he was not at fault in failing to meet the IMFA requirements. There are some important things to consider when filing an I-751 to remove conditions based on a terminated but otherwise good faith marriage. First, USCIS should not consider who filed for the divorce. There are incorrect rumors circulating that if the alien does not file for divorce, the alien’s I-751 will be denied. In the original rules, there was language about the alien terminating the marriage for good cause; however, that set up a “race to the courthouse” situation, and the rules were changed. Second, it does not matter if the US citizen spouse entered the marriage in good faith, only the alien’s good faith intent is relevant. We have represented clients whose spouses seemed to have entered the marriage in order to hold power over the foreign-born spouse, or wanted help paying off debts, etc.; however, we were able to get the cases approved because we could show that our client was the victim of their US citizen spouse’s scheming. Third, USCIS can interview the former US citizen spouse if they feel it is necessary. This can be a problem for the conditional resident, because a vindictive spouse might make up stories in order to hurt the former spouse. Fourth, be careful with property settlement agreements. USCIS adjudicators look at property settlement agreements as a way to determine how much a couple commingled their assets. Finally, even if the divorce decree specifies that one spouse was “at fault” in the dissolution of the marriage or neither spouse was at fault, that determination is not binding on the USCIS adjudicator, who is specifically instructed to make his/her own decision regarding fault or no fault.

The original IMFA did not contain a separate waiver for victims of battery or extreme cruelty. In 1990, the victim of domestic abuse waiver provision was added. Conditional residents filing a non-joint I-751 must prove two main requirements: that the marriage was entered into in good faith and the applicant was the victim of battery or extreme cruelty. Traditionally labeled VAWA (Violence Against Women Act) cases, these can be difficult and emotional cases to prepare. As is the case with any I-751 waiver case, the applicant should seek attorney representation when proceeding with an I-751 victim of domestic violence case. USCIS can call an interview, and having an experienced attorney that knows the law with you will ensure that you are treated with respect. Sometimes, it is a good idea to file a VAWA I-360 at the same time that you file an I-751. The Service Center handling the I-751 case might not have as much experience with domestic violence situations as the Vermont Service Center which routinely handles VAWA claims. We have handled many VAWA cases (both at the I-360 and I-751 level) and Vermont adjudicators regularly exhibit more training and a better understanding of a domestic abuse situation’s dynamics.

If USCIS denies the I-751, the case is referred to the immigration court. The conditional resident should understand that even though USCIS denied the case (and may even state in the denial that the applicant’s conditional resident status is terminated), the applicant remains a conditional resident until an immigration judge says otherwise. This is very important, because the immigration court proceedings could last several years, and the applicant is entitled to work and travel as a conditional permanent resident during that time.

In immigration court, the conditional resident can call witnesses and ask the judge to make an independent decision on the I-751 case. Keep in mind though that the immigration judge cannot make a decision on an I-751 unless USCIS has already denied the I-751. An example may be helpful to clarify. If a man and woman file an I-751 jointly, and the case is denied, the case will be referred to immigration court. If the couple divorces in the meantime, the foreign born spouse must file a new I-751 with USCIS asking for a waiver before having the judge adjudicate the case. The foreign born spouse cannot file the new I-751 directly with the judge. See Matter of Lemhammad.

The Nunez Firm handles all types of I-751 cases every year. Many of our marriage-based green card clients come back to us two years later and ask us to help them with the I-751, and over the last year or so, most of these cases have been approved without interviews. We also handle good faith marriage waivers, domestic violence waivers and extreme hardship waivers. If you are considering the I-751 process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you in our Irvine location and help you better understand the process.

Adjustment of Status Approved for Asylee Client in Fountain Valley

September 23rd, 2013 No comments
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We received an I-485 approval for a Fountain Valley client of ours. He was granted asylum in 2010 based on his fear of returning to his home country. In order for an asylee to adjust status to permanent residency, he must show that he has accumulated one year of continuous physical presence. There is no longer a cap on adjustment approvals for asylees and refugess. Asylees must 1) apply for adjustment; 2) be physically present in the US for at least one year after being granted asylum; 3) continue to be a refugee with the meaning of INA 101(a)(42); 4) not be firmly resettled in another country; and 5) be admissible to the US as an immigrant under the Act upon examination for adjustment.

Certain grounds of inadmissibility do not apply for asylees including public charge, labor certification and immigrant documentation requirements under INA 212(a)(7)(A). Drug trafficking, national security and terrorism grounds cannot be waived. Other grounds such as criminal convictions can be waived, and the asylee should apply for the waiver using Form I-602.

The spouse of an asylee and children under 21 years of age are eligible for derivative asylum status. They may adjust status to permanent residency independent of the principal asylum applicant provided the principal continues to qualify as a refugee and the spouses remain married.

If political conditions in the asylee’s home country during the pendency of the adjustment application so that the person no longer fears persecution, adjustment may be denied, and the denial is not appealable. However, the applicant can have the application renewed in subsequent removal proceedings.

During the pendency of an adjustment application, the asylee may travel abroad, however he should not travel back to his home country.

In this case, our client did not have any grounds of inadmissibility that applied, and the political conditions in his home country were still hostile. He feared returning to his home country. The case was approved without an interview, and our client is now a lawful permanent resident.

If you are contemplating an asylum application or adjustment of status, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the process.

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