Our client obtained lawful permanent resident status through his marriage to his US citizen wife in 2008. In 2010, the couple filed the I-751 petition to remove conditions on residency and USCIS approved it.

In 2011, he filed the N-400 naturalization application after three years of permanent residency and marriage to his US citizen wife. USCIS interviewed him as part of the naturalization process. After 18 months of waiting, USCIS denied his N-400 stating that he had not been living in marital union for the requisite 3 years. USCIS stated that according to site visits and investigations, they had determined that he had been living with the mother of his children rather than his wife since before the filing of the I-751. USCIS also denied his N-336 Hearing on Denied Naturalization on similar grounds.

We were hired to handle the federal district court litigation.

In court, the government OIL (Office of Immigration Litigation) attorney argued that because our client did not live with his wife under the same roof during the three years prior to filing naturalization, he was ineligible. Additionally, he questioned whether our client committed fraud by filing the I-751 jointly with his wife when our client was not living with her. The OIL attorney argued that our client was not in a marital union during the requisite three years because the couple did not live together the whole time.

The judge disagreed. He found that although our client was not living physically together during the whole time, they continued to live in a marital union because they were still legitimately married and were trying to work on their marital differences. He stated that the couple may have been informally separated but more factual development is necessary to determine if the separation signified a clear end to the marital union. Read the court’s decision here.   

We recently received an approval for an O-1 visa for one of our ballroom dance instructors. He’s originally from Australia and has competed professionally for many years. He hired another immigration attorney to file his O-1. That attorney filed under the O-1B classification, but USCIS denied the case. USCIS issued a Request for Evidence (“RFE”) stating that it did not regard ballroom dance instructors as artists, but instead classified them as athletes.

We re-filed the case as an O-1A and it was approved within three weeks without an RFE being issued.

Our client, whose record includes multiple national and international titles and headline performances in well-known dance productions, was very pleased with the result. As I write this, he is attending his consular interview in Australia so he can obtain his visa to enter the United States.

We just received approvals for two of our clients. They arrived in the United States in 1992 and crossed illegally. They have lived in the US ever since and have three children – two US citizens and one DACA-approved. In 1997, the husband’s brother, a US citizen, filed a fourth preference petition for the sibling of a US citizen. The wife was a derivative beneficiary under that petition.

Because the couple is from Mexico, the wait time for fourth preference processing was almost 20 years. Once the priority date became current, we filed the application for adjustment of status.

The couple had no prior deportations or criminal issues. Because the brother filed the petition prior to 1998, the couple was eligible to adjust status based on INA 245i. As a general rule, an alien must have entered the United States legally in order to adjust status to lawful permanent resident. Additionally, the alien must have maintained lawful status while in the US and not worked without authorization. However, INA 245i created an exception to the general rule if the alien is the beneficiary of a family based petition or employment based labor certification filed before April 30, 2001. The alien must pay an additional $1000 penalty to apply via INA 245i.

The interview went smoothly. Our clients were well-prepared and, of course, I was present to make sure they were treated fairly and felt comfortable. At the conclusion of the interview, they received their approval notices.

Now that they are permanent residents, they plan to file a petition for their non-US citizen son. His case will take several years to process, but he will benefit from 245i as well.