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Posts Tagged ‘good faith marriage’

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 Where a couple has filed a joint I-751 petition, but one of the parties has withdrawn support before adjudication, the joint petition shall be considered withdrawn and conditional resident status should be regarded as terminated.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.

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.

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.

Fiance Visa Petition Approved for Newport Beach Client’s Future Wife Living in Mexico

August 8th, 2013 No comments
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We just received an approval notice for an I-129F Petition for Fiance Visa that we filed a few months ago. The client lives in Newport Beach, and has been dating his fiancee, who lives in Mexico, for over a year. We provided USCIS with proof that the couple has visited several times, corresponded continuously, and met each other’s families.

The fiance visa petition is the first stage of a three step process. The K-1 visa is available to fiance/fiancees of US citizens that seek to enter the US solely to conclude a valid marriage with the petitioner within 90 days of arrival. Minor children of fiancees can accompany on a K-2 visa. The I-129F visa petition must be accompanied by proof of: the bona fide intent to marry within 90 days of entry, no legal impediments to marriage (such as prior unterminated marriages), and evidence that the couple has met in person within the last two years.

The approved I-129F petition is generally valid for four months, but it may be revalidated for additional periods of four months. Once the I-129F petition is approved by USCIS goes to the consul, where the consular officer will schedule an interview and determine whether the foreign-born fiancee is eligible for an immigrant visa (admissibility issues). The consulate will not issue a fiance visa if the marriage would not be legal (e.g. polygamy or minor child seeking to marry). If the petitioning US citizen has previously filed two or more fiance visa petitions, the consulate can deny the visa. K-1 visas are generally considered hybrid visas meaning they are not immigrant or non-immigrant visas. The K-1 visa holder cannot adjust or change status to permanent resident under any basis other than marriage to the K-1 visa petitioner. If the marriage between the K-1 visa holder and petitioner does not occur within 90 days of entry, the foreign-born individual must depart the US.

In this case, the approved visa petition will now be forwarded to the US consulate in Ciudad Juarez for scheduling of the visa application interview. This process can take several weeks, but we intend to start preparing the necessary documents, forms and evidence. Our client is currently collecting police clearances from the countries in which she has previously resided.

Once the fiance visa is approved by the consulate, she will travel to the US to get married in the first three months. Then, we will file the I-485 for adjustment of status based on marriage to a US citizen.

If you are considering the K-1 visa process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you and whether the fiance visa is a viable option.

Conditional Permanent Resident Status Approved for Wife of US Citizen in Newport Beach

July 20th, 2013 No comments
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One of my French clients living in Newport Beach was approved for lawful permanent resident status based on her marriage to her husband, a US citizen. The couple started dating four years ago. She often visited the US under the Visa Waiver Program to spend time with him. In October 2011, she visited and he proposed to her. They moved to Newport Beach, California together, and they married in December 2011. I began representing them with the adjustment process in late 2012. We filed the I-485 application for adjustment of status and I-130 visa petition a few months later.

The couple is young and the husband’s income was insufficient to qualify him as the sole sponsor. His father acted as the joint sponsor. Applicants for adjustment of status based on marriage must show that they have sufficient financial support and they are not likely to become a public financial charge. The sponsor, or in this case joint sponsor, must earn at least 125% of the federal poverty guidelines. The husband’s father easily met this requirement, and the USCIS officer did not view my client as likely to become a public charge. The officer reviewed the evidence of good faith marriage and asked many questions about how the couple met, started dating, and decided to get married. Then, he approved the case.

Because the couple has been married for less than two years, she will be a conditional permanent resident for the next two years. During the three month period prior to the expiration of her conditional permanent resident status, the couple will need to file the I-751 petition to remove conditions, so that she can remain a lawful permanent resident. I advised the couple that they will not receive a reminder from USCIS regarding the expiration date of the CPR status.

For now, the young couple is excited to have this step behind them. The wife looks forward to finding a job and they’ve mentioned possibly starting a family in the next year or two. Possibly, they’ll adopt a puppy they said.

If you are considering the adjustment of status process, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you during a confidential consultation and help you determine if adjustment of status is right for you.

Green Card Approved for VAWA client in Orange County After Two Years

May 25th, 2013 No comments
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One of our VAWA clients was approved for lawful permanent resident status in Orange County, California. I attended the adjustment of status interview in the Santa Ana office of USCIS along with my client. She entered the United States in 2002 from the Philippines. She visited friends for several months and met a man. The couple began dating and he proposed to her. After the couple married, her husband became more controlling and, eventually, violent.

She escaped from the house with the help of her friend, and she moved away from him. After several years living apart from him, she learned about VAWA and called our office. I remember meeting with her over two years ago. Although the facts of her case sounded strong, I was worried that we would not be able to document the abuse. It had been such a long time since the abuse occurred and the couple had lived together, she did not have much documentation to support her claims of abuse and good faith marriage. I advised her that I was not confident in her case, but we would do our best. The client understood the challenges but decided to move forward with the case.

We spent several months preparing the case – helping the client prepare her written statement, collecting statements from friends that witnessed the relationship and collecting IRS documents to corroborate the bona fides of the marriage. We filed the I-360 VAWA application in June 2011.

In August 2012, we received a request for evidence asking for further evidence to prove good faith marriage and joint residence. The RFE did not ask for further proof of domestic violence, which was a pleasant surprise because it meant USCIS was satisfied that our client was the victim of abuse. We collected additional written statements from family members and friends attesting that they had visited our client and her husband in their home and know that the couple lived together.

Three months after our response, we received an approval notice for the I-360. USCIS advises that the case would be transferred to USCIS Santa Ana for an interview. The interview went smoothly. The officer verified admissibility information and my client’s address. He did not ask any questions about the abuse, because the issue had already been decided at the I-360 phase. (Once the I-360 has been approved, the USCIS officer interviewing for the I-485 should not revisit questions pertaining to abuse and good faith marriage. Sometimes, officers forget this though.)

The client was excited about the result. I informed her that she would be eligible to naturalize in three years, and she said she would like me to help her with that process. If you are the victim of domestic violence, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will help you better understand the options available to you during a confidential meeting.

 

I-751 Petition Based on Good Faith Marriage Approved After Three Years

May 23rd, 2013 No comments
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One of our Los Angeles clients’ had his I-751 approved and the conditions removed from his permanent resident status. We filed his I-751 in May 2010 after his previous attorney failed to file on time. When we were hired, our client was already in immigration court in Los Angeles and he was trying to avoid deportation.

We advised the judge that we would be filing the I-751 late, but that the untimeliness did not make my client ineligible for retaining his permanent resident status. We filed the I-751 arguing that although my client was divorced from his ex-wife (a US citizen), their marriage was entered into in good faith. We provided hundreds of pages of documents evidencing the bona fides of their marriage including written statements from friends, bills, apartment leases and even a written statement from the ex-wife explaining why she believed the marriage did not last.

In December 2010, we received a Request for Evidence asking for further documentation. We provided that as well. Then we waited. In 2011, we were interviewed by a USCIS officer in Los Angeles. The interview went well, but the officer was not willing to approve the case on the spot. She said she needed more time to review the case. Since then, I have followed up with USCIS every few months, often driving to Los Angeles to speak with an infopass officer in person about the status. Additionally, my client and I have attended immigration court hearings every few months for status reports to the judge.

Finally, after three years of waiting, we just found out that my client’s case was approved and he received his green card. He will be eligible for naturalization immediately because he as been a permanent resident for over five years. Our next court hearing is in early June, and we intend to inform the court that the I-751 was approved and the case should be terminated.

If you are in removal proceedings or filing an I-751, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

I-751 Joint Petition Approved for Husband of Orange County Woman – No Interview

May 17th, 2013 No comments
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We just received an approval notice for a joint I-751 petition for our clients in Irvine. The case was approved without an interview.

Unlike the marriage-based green card process which requires an interview with an USCIS officer, the interview in the I-751 process is discretionary. If the USCIS officer is satisfied that enough evidence exists to prove good faith marriage, the officer can approve the case without an interview. In years past it seemed that USCIS would call for an interview in most cases, but I’ve noticed recently that USCIS has been approving our cases without interviews.

In this case, we included a great deal of evidence to show that the couple was living together and conducting themselves as a married couple. We represented the couple with the initial green card application, so we were familiar with their family history. We included over 150 pages of evidence with our packet. The client was excited to hear the news. He was happy that he would not have to attend an interview, because, although his marriage is legitimate and was entered into in good faith, any interview with USCIS is bound to cause stress even if the couple has nothing to hide.

If you are preparing to file the I-751 joint petition with USCIS, contact The Nunez Firm to schedule a consultation. We help countless couples each year with the I-751 process, many of whom we represented in the I-485 process and wanted us to represent them again.

VAWA Approved for Victim of Domestic Violence in Westminster

April 1st, 2013 No comments
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We recently received an approval notice for the Form I-360 for an Orange County client living in Westminster. We filed the case one year ago with the Vermont Service Center of USCIS. In order to be approved under the Violence Against Women Act (“VAWA”), the self-petitioner must show that 1) she entered into a good faith marriage to a US citizen or lawful permanent resident; 2) she resided with the spouse in the US; 3) she is of good moral character; and 4) she has been battered by or subjected to extreme cruelty by the spouse during marriage.

In this case, our client married her US citizen husband over a decade ago. The couple had two children together and we provided USCIS with the children’s birth certificates. We provided joint tax returns and joint bank account statements to proved shared residence. We sent the results of a criminal background check to USCIS to show that our client had good moral character and no criminal convictions or arrests. We provided arrest reports for the husband showing he was arrested by the police for attacking his wife. We provided conviction documents to show that he was convicted of domestic violence battery as well.

We believed from the very start that this was a strong VAWA case. We had our client draft a written statement describing how she met her husband, started dating and got married. We asked her to describe the violence and when it began. We helped her develop the written statement by telling her what to focus on and helping her draw out the details that USCIS would find relevant. As always, the drafting of the written statement is an ongoing and cooperative process that can be emotionally intense for the client. She is asked to recall memories and incidents she would likely want to leave in the past. Our client did a great job, and the case was approved without the issuance of a Request for Evidence.

The client was very happy when she learned of the approval. Now, we will wait for USCIS to process the I-485 application to adjust status to permanent resident. If you are the victim of domestic violence and would like to better understand the immigration options available to you, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you confidentially and help you understand the process.

Form I-751 Approved for Married Couple in Irvine

January 2nd, 2013 No comments
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We received great news that an I-751 joint petition to remove conditions on permanent residency was approved by USCIS. We originally handled the couple’s adjustment of status and waiver applications in 2010. Everything was approved, and the wife, who was originally from Mexico, was approved for a conditional green card. Because at the time of the adjustment of status, the couple had been married less than two years, the wife was approved for conditional status for a two year period. The conditional permanent resident status is a way for USCIS to prevent against marriage fraud. The thinking is that a newly married couple can still obtain a green card for the alien spouse for a two year period. After two years, the couple must provide more evidence to show that they couple has lived in a good faith marriage for the last two years. This allows USCIS to review the case again and make certain they are convinced of the bona fides of the relationship.

In early 2012, the couple contacted The Nunez Firm to ask us for help in applying for the removal of conditions. We met with the couple and reviewed the evidence they brought. We asked them to look for other evidence they had not considered. A few months later, we prepared a comprehensive packet of evidence to show that the couple was still living together and carrying on their lives as a married couple would be expected to do. Per 8 CFR 216.4(a)(1), we filed the joint I-751 petition within 90 days before the second anniversary of the grant of permanent resident status. We provided insurance policies showing both husband and wife as covered individuals. We provided joint bank accounts and photos of the couple.

With an I-751, USCIS wants to see that the qualifying marriage was entered into in good faith. They generally want to see evidence such as joint ownership of property, a lease showing joint tenancy, commingling of finances, birth certificates of children, affidavits of third parties attesting to the relationship and photos of the couple/family among other documents.

The I-751 for this Irvine couple was approved without an interview. The couple was happy that they would not need to attend another interview, because the interview process can be stressful. If you are a conditional resident and your two year expiration date is approaching, contact The Nunez Firm to schedule a consultation. Although you cannot file the joint I-751 before the 90 day window, it is best to start preparing the case a few months in advance. This gives us ample time to prepare as convincing of a case as possible in the hopes that we can obtain an approval without the need for an interview.

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