REMOVING GREEN CARD CONDITIONS IF SPOUSE DOES NOT SIGN

By Reuben S. Seguritan

An alien, married to a US citizen or permanent resident may obtain a green card through marriage. If the marriage occurred less than two years at the time the green card is issued, the resident status is conditional.

The conditional green card expires on the second anniversary of the day when the conditional status was granted by the United States Citizenship and Immigration Services (USCIS).

Prior to its expiration and within ninety (90) days before the second year of issuance of the conditional green card, both husband and wife should file a joint petition (I-751) for the removal of the condition. If the petition is not filed, the resident status is automatically terminated as of the second anniversary of the green card issuance and the spouse may be removed from the U.S.

The I-751 must be signed by both spouses and submitted along with supporting documents establishing the validity of their marriage.

These supporting documents may include documents showing joint ownership or occupancy of property such as deeds, leases, mortgage contracts; birth certificates of children; financial records showing joint ownership of assets and joint responsibility for liabilities, such as joint savings and checking accounts, joint federal and state tax returns, insurance policies that show the other spouse as the beneficiary, joint utility bills, joint installments or other loans; photographs of family events; and/or affidavits of third parties who know the couple, photographs. These are submitted along with a copy of the front and back of the conditional green card of the beneficiary spouse and the filing fee.

If both spouses cannot file the I-751 jointly, a waiver of the joint filing requirement must be filed by the conditional resident.

A waiver may be obtained under three separate grounds: 1) termination of the good faith marriage due to divorce or death of petitioning spouse; 2) extreme hardship to the conditional resident spouse, and 3) extreme cruelty or battery by the U.S. citizen or lawful permanent resident spouse during the good faith marriage.

Under the first ground, the existence of good faith marriage entered by the parties is an essential requirement before the marriage was terminated either through death or divorce. The marriage must be terminated. Mere commencement of a divorce proceeding is not sufficient to waive joint filing. Privacy – Terms Under the second ground, the USCIS, in assessing extreme hardship, will look into several factors such as the alien’s age, family ties in the U.S. and abroad, length of residence in the U.S., health conditions, economic and political conditions in the alien’s home country, occupation and work skills, immigration history, position in the community, alien’s special assistance to the U.S. and alternate ways to adjust status.

The third ground of battery and/or extreme cruelty requires evidence of good faith marriage. While battery or extreme cruelty is not explicitly defined by immigration laws, regulations and case precedents are instructive in providing guidance in showing proofs of physical and spousal abuse. Evidence of physical abuse may include reports and expert testimony from police, judges, medical personnel, school officials, and social service agency personnel, among others.

Each ground for waiver is assessed on a case-by-case basis. The conditional resident has the burden of proving said grounds for the I-751 waiver.

CONSULATE REVIEW OF PETITIONS FOR POTENTIAL FRAUD

By Reuben Seguritan

A US Citizen can bring his Fiancé(e) to the US by filing an I-129F petition with the USCIS. He can also file an I-130 petition to bring his spouse to the US. In either case the USCIS will review the petition, and if approved, the case will be sent to the National Visa Center (NVC) for processing. The NVC will provide a case number and forward the case to the nearest US consulate where the foreigner spouse or Fiancé(e) resides. The US consulate will then contact the foreign spouse or Fiancé(e) and instruct her to get a medical exam and attend a visa interview at the consulate. After the interview and approval, the visa will be issued and the spouse or Fiancé(e) can then enter the US.

In some cases, the consulate might find or might think it has found fraud in the application and will therefore trigger a fraud review of the application. Some of the signs of fraud are: Age difference between petitioner and beneficiary; marriage fraud is common in beneficiary’s country; and petitioner has previously filed another petition based on marriage. The fraud review can also be triggered if the spouse or Fiancé(e) says something during the interview that contradicts documents submitted or is completely left out of the application and such information is required. An example of this would be a prior marriage which has been legally dissolved or annulled.

The fraud review can be avoided by thorough preparation before the application is submitted and before the interview at the consulate. The spouse or foreigner Fiancé(e) must always have a copy of what he submitted to the USCIS. It must be made clear to the USCIS and the consulate that the relationship of the US citizen and the foreigner spouse or Fiancé(e) is genuine and not entered into for immigration benefits. Some signs that it might be a sham marriage or relationship are: statement by one of the parties, proof of money exchanging hands, factual evidence found by the officer or there was a marriage broker.

There must also be supporting evidence of the genuine relationship of the couple. Examples of proof for the US citizen and the Fiancé(e) are: affidavit with the narrative of the relationship and a statement of intent to marry the foreigner Fiancé(e); evidence to establish the relationship and how many times the couple have met personally, (i.e., photographs together, letter or messages sent to each other, plane tickets, receipt of the engagement ring, etc.) a signed statement of the foreigner Fiancé(e) certifying that she intends to marry the US citizen within 90 days of entering the US on a valid K-1 visa. Additionally, if the Fiancé(e) is from the Philippines, he must also submit a Certificate of No Marriage (CENOMAR) which shows he has the capacity to marry the US citizen. For the US citizen and his foreigner spouse, the following evidence can be presented: affidavit stating the timeline of the couple’s relationship; statement on prior marriages of the spouses, if any; birth certificates of minor children if any; marriage certificate of the couple and supporting evidence to show the marriage and relationship such as pictures before and during the wedding, messages or letters sent to each other and plane tickets or receipts showing travel together.

The foreigner spouse or Fiancé(e) must also have practiced answering questions before the interview. Even if the relationship is completely legitimate, the nervousness of the applicant can contribute to incorrect responses or blanking on important details when asked by the interviewer. It would be good to ask someone to help the applicant speak in English and memorize important dates such as the birthday of the US citizen and the anniversary of when they became a couple. At the interview itself, the foreigner spouse or Fiancé(e) must take note of the name of the officer who interviews her, the date and time of the interview and which window or room number she was interviewed in.

But despite extensive preparation, it is still possible for the application to be denied. If this happens, the US citizen and the foreigner spouse or Fiancé(e) should ask why the consulate decided that way. However, the officers are required to suspend actions on applications when a petitioner requests it, when they believe there is fraud, when there is a change in circumstances even if there is no fraud, if the officer has reason to believe the applicant is not entitled to the status and if the officer believes the marriage, is a sham.

If the application is denied the applicant and the US citizen are not entitled to judicial review of the consulate’s decision. The only two options after denial are filing a motion for reconsideration or requesting for an advisory opinion.

SELF-PETITION FOR BATTERED SPOUSE

By Reuben S. Seguritan

An alien generally needs to be petitioned by a family member who is either a US citizen or lawful permanent resident in order to immigrate to the US. One exception to this general rule refers to a battered spouse.

An alien who is battered or abused by his/her US citizen or lawful permanent resident spouse may self-petition under the Violence Against Women Act (VAWA). The law does not define the term “battered spouse” but the abuse suffered by the alien can range from actual physical abuse to extreme mental cruelty.

To be eligible to self-petition under the VAWA, the alien must meet certain requirements. First, the alien must have entered into the marriage in good faith. Second, the alien or his/her child must have been battered or abused by the US citizen or lawful permanent resident spouse Third, the battered spouse and the US citizen or lawful permanent resident are living or must have lived together in the past.

Fourth, the alien is currently residing in the US or if residing abroad, the abusive spouse is either a US government employee or subjected the alien to abuse in the US. Fifth, the alien is a person of good moral character. Lastly, the abusive spouse is a US citizen or lawful permanent resident both at the time the petition is filed and when it is approved, or the abusive spouse lost his US citizenship or lawful permanent resident status because of domestic violence.

The unmarried children of the abused spouse who are under 21 may be included as derivative beneficiaries.

If the alien sufficiently establishes that s/he had obtained a divorce as a result of the abuse by the US citizen or lawful permanent resident spouse, s//he may still self-petition even if s/he is already divorced at the time the petition is filed. However, if the alien spouse remarries before the petition is filed or approved, the petition will be denied. Remarriage after approval of the petition has no effect on the approval.

A battered child may self-petition if s/he meets certain conditions. First, the alien must be unmarried and less than 21 or qualify as a child under certain provisions when the petition is filed and approved; second, the abusive parent is a US citizen or lawful permanent resident when the petition is filed and approved; third, the abusive parent is currently living in the US or if abroad, the abusive parent is a US government employee or subjected the child to abuse in the US; fourth, the child lived with the US citizen or lawful permanent resident parent and was abused at that time; fourth, the alien is of good moral character.

A battered parent may also self-petition if he/she was abused by his/her US Citizen child.

To self-petition, the alien must fill in Form I-360 and file it with the Vermont Service Center. Supporting documents may include police records, 911 transcript, medical/hospital records, shelter records, psychological records and reports, school records, photographs, and a statement from police

VISA REFUSAL MAY BE OVERCOME

By Reuben S. Seguritan

Consular officers do not always issue a decision on a visa application right after the interview. In many cases, they issue a visa refusal under Section 221(g) of the Immigration and Nationality Act. A Section 221(g) refusal means that the officer did not have all the information required to determine the applicant’s eligibility for a visa.

Although technically a visa denial, a 221(g) refusal means that the case is pending further action, which could be because additional documents are needed or administrative processing is required.

The consular officer issuing the 221(g)-visa refusal should explain to the applicant what documents or other evidence are lacking or what procedural steps need to be completed.

Examples of additional supporting documents include police certificates; proof of local employment, particularly for nonimmigrant visa applicants; additional affidavits of support; court records about arrests or criminal convictions; job offers; and tax documents.

Processing resumes after the applicant submit the missing documents or information. The rules allow one year for documents to be submitted. If the applicant takes longer than that, he will need to reapply for the visa and pay the application fee again because the application will have been cancelled.

In cases where the reason for a 221(g) refusal is administrative processing, the consular officer needs to make further investigation or review in order to determine the applicant’s eligibility. Processing of an application that is suspended due to administrative processing may take months, possibly longer.

The additional processing may entail verification of the authenticity of civil documents; sending an investigator to the applicant’s home to look into the legitimacy of a marriage; calling a company to verify the applicant’s employment; checking with a school or university if a diploma was indeed issued to the applicant, and calling the sponsor who signed the affidavit of support on the applicant’s behalf.

In cases where there is already an approved petition such as in H-1B visa applications, if the consular officer discovers in the course of an investigation that fraudulent documents were submitted or the beneficiary is not qualified, the officer is not limited to refusing the visa but also recommending to the USCIS that the earlier approved petition be revoked.

A 221(g) refusal is also invoked when an applicant presents security issues. This may be because the applicant resided in certain countries, previously worked for the military, or has the same name as a terrorist. In these situations, the consular officer will put the application on hold until a security clearance or approval is received.

Section 221(g) refusals are actually very common. It can be overcome when the consular official receives the requested documents or is satisfied with the applicant’s eligibility for the visa. In some cases, it is possible to seek reconsideration of the visa refusal.

Note that although a refusal under Section 221(g) is a “soft” or temporary refusal, it is still a visa refusal that must be disclosed in subsequent visa applications. Even if a visa applicant was able to overcome a 221(g) refusal, he must still disclose it the next time he applies for a visa.

BIDEN ROLLS OUT SWEEPING IMMIGRATION BILL

By Reuben Seguritan

President Biden has submitted to Congress a sweeping immigration bill known as the US Citizenship Act of 2021. It was introduced in the House by Representative Linda Sanchez and in the Senate by Senator Bob Menendez.

The bill would provide a path to citizenship to an estimated 11 million undocumented individuals who were physically present in the US on or before January 01, 2021. They will first apply for temporary legal status and after five years they will be able to apply for green card if they pass security background checks.

Under this bill, Dreamers, Temporary Protected Status holders and Farm workers will be eligible for green card immediately after meeting certain requirements. Dreamers refer to children who were under 18 when they entered the US and have a High School diploma or High School Equivalency.

Those who were deported on or after January 20, 2017 but were physically present in the US for at least 3 years prior to their removal may also be eligible to apply.

Green card holders will be eligible to apply for citizenship after 3 years provided, they pass additional background checks and are able to demonstrate knowledge of English civics and US history.

Also included in the bill are provisions aimed at keeping families together such as recapturing unused visas, clearing visa backlogs and increasing per country quotas. The 3- and 10-year bars will also be eliminated. The bill also provides protections for Filipino World War II Veterans, LGBTQ’s, widows, orphans, and certain aged out children. Immigrants with approved family-based petitions will be allowed to join families in the US on a temporary basis while waiting for visa availability.

Other provisions provide for growing the US economy such as eliminating restrictive requirements for employment based green cards, increasing the number of green cards and giving work permits to H1B dependents. Employment visas will increase to 170,000.

Diversity visas will go up from 55,000 to 80,000. Visas for victims of certain crimes will jump from 10,000 to 30,000.

According to a Politico/Morning Consult tracking poll 31% of registered voters think the bill passage should be a top priority of Congress. In a poll conducted by Emerson Colleges last month 55% favor granting a path to citizenship to undocumented individuals who are currently in the U.S.

CONSULAR PROCESSING OF IMMIGRANT VISA

By Reuben S. Seguritan

Beneficiaries of immigrant visa petitions who are abroad process their immigrant visa at the U.S. consulate of their home country.  It is important that they familiarize themselves with the rules and procedures of that particular consulate.

Visa applications must be pursued within one year from the date applicants are given notice to apply.  Failure to act within that period will terminate the visa petition.

Petitioners and beneficiaries should periodically monitor the Visa Bulletin in case information relevant to their petitions becomes available.  They must ensure that their mailing information is accurate so that correspondence is not delayed.

Applicants should also inform the National Visa Center or the Immigrant Visa Branch of any changes in the status of the petitioner or the beneficiary such as the relocation or death of the petitioner or the marriage or aging out of the beneficiary.  Such changes may disqualify the applicant or delay the processing.

If the petitioner has become a citizen the petition filed on behalf of an unmarried son or daughter is converted to first preference (F-1) which means a longer wait in the case of a Filipino applicant.  But this can be avoided by applying to opt-out of the F-1 conversion and retain the F2B classification.

If the petitioner has moved out of the U.S. the visa application will be denied because of the requirement that the petitioner who is required to submit an Affidavit of Support must be domiciled in the U.S.

The death of the petitioner revokes the petition but it may be reinstated for humanitarian reasons.  A law that was passed last October which allows surviving relatives to continue their green card applications does not apply to those who did not reside in the U.S. at the time of the death of the petitioner and did not continue to reside in the U.S. thereafter.

The marriage of the beneficiary of an F-1 petition converts the petition to F-3 which translates to a longer wait.  The marriage of an F2B beneficiary cancels the petition.

The applicant should be careful in preparing all relevant documents before he/she is given an appointment by the consulate or risk refusal of a visa.  The most common reasons for denial are incomplete or improperly completed Affidavit of Support; insufficient secondary evidence to prove relationship or identity; and outdated police or medical clearance.

An applicant should be truthful and not conceal relevant facts in the visa application and at the interview.  Fraud or misrepresentation may result in the visa denial and may permanently bar the applicant from entering the U.S.

If the applicant follows all directions, submits all the requirements, and provides all the necessary documents the likelihood of visa denial is minimal.  So it is in the applicant’s best interest to be prepared.