Presumptive immigration marriage fraud

Presumptive immigration marriage fraud – from green card by marriage to immigration petition for a new spouse in less than 5 years

When a permanent resident obtained a green card by marriage which later ends in divorce, an immigration petition for a new spouse cannot be approved if filed within 5 years of obtaining permanent residence unless the permanent resident can prove that the earlier marriage by which he obtained a green card was in good faith. But the standard of proof of the earlier marriage is raised beyond that required when the permanent resident was issued a green card by that marriage.

If the permanent resident by marriage files an immigration petition for a new spouse within 5 years of receiving permanent residence by law (The Marriage Fraud Amendments of 1986) the former marriage by which he obtained permanent resident is presumed to have been entered into for immigration purposes without the intent to live together as husband and wife.

In this type of special circumstances marriage fraud is presumed based upon the earlier marriage by which the permanent resident obtained a green card, not the current marriage. The presumption of fraud based on the earlier marriage arises even if there was no finding of marriage fraud and the permanent established that the earlier marriage was in good faith, passed the immigration marriage interview and the joint petition for removal of conditions upon resident (I-751) was approved by USCIS.

What is presumptive immigration marriage fraud?

The Bureau of Administrative Appeals defines immigration marriage fraud as a marriage which may comply with all the formal requirements of the law but which the parties entered into with no intent, or “good faith”, to live together and which is designed solely to get around the immigrations laws. There is no requirement that the person be convicted of fraud. Presumptive immigration marriage fraud is a presumption of law applied to all cases where a permanent resident by marriage petitions for a new spouse in less than 5 years after obtaining permanent residence.

Presumptive fraud is about the earlier marriage

Immigration Marriage FraudBut with presumptive fraud a spousal petition for a new spouse within 5 years of obtaining permanent residence by marriage is enough for the adjudicator to presume that the first marriage was a fraud. The presumption however can be successfully challenged. The USCIS will issue a Notice of Intent to Deny giving the petitioner the opportunity to send evidence to show by clear and convincing evidence that the earlier marriage was in good faith. The rebuttal evidence is directed towards the earlier marriage.

A petition for a new spouse within less than 5 years alone is not unequivocal evidence of a sham marriage. Therefore the petitioner can give evidence that adequately explain the rapid sequences of events. A denied petition does not affect the permanent resident’s ability to re-file the petition for the new spouse after the 5 year period.

Evidence used to rebut presumptive marriage fraud

The evidence used to challenge a finding of presumptive marriage fraud is evidence to prove the good faith of the earlier marriage by which the permanent resident gained his status (not the current marriage to the new spouse). Some examples of the type of evidence that can be used to challenge a finding of presumptive marriage fraud are:

1.            Affidavit from Petitioner

2.            Affidavit from former spouse and former in-laws – don’t burn your bridges

3.            Affidavit from friends – who he knew the couple, how often they saw each other

4.            Affidavit from professionals – e.g. life insurance salesman, doctors that interacted with the couple and observed them during the marriage

5.            Greeting cards from family (dated) – showing family is aware of the marriage

6.            Birth Certificate of children born to the marriage

7.            Photographs of the couple together with family and friends (identified and dated)

8.            Financial statements in both names

9.            Joint Tax returns

10.          Statements in both names

11.          Divorce decree – showing property settlement and other terms of divorce (reason for termination of the marriage)

12.          Evidence showing the length of time the earlier couple lived together

Conclusion

There are lots of factors involved in successfully rebutting presumptive immigration marriage fraud. A lot depends upon the facts of the particular earlier marriage. When entering an immigration marriage it is important to have proper legal advice every step of the way. Even if you former marriage and present marriage were in good faith, your petition for your new spouse could be denied if you cannot successfully rebut the presumption that the earlier marriage was a fraud and do so using the correct legal standard.

Presumptive marriage fraud does not prevent the filing of an immigration petition for a new spouse but it makes it more difficult by requiring the permanent resident to prove the good faith of a former marriage using a higher standard.

Presumptive marriage fraud does not apply to naturalized United States citizens or to permanent residence by marriage that has held permanent resident status for over 5 years. It also does not apply to a permanent resident whose marriage end by death of the US citizen or permanent resident through which permanent resident status was received. Despite this, your prior marriage may be relevant if your present relationship began during your prior marriage existed.

Immigration laws can be very unforgiving. Seek legal representation before your act or refrain from taking action on your immigration issue. If you have any questions feel free to contact Goodin Law at (702) 423-2721 or via the Contact Us form for a confidential  immigration consultation.

Gary Goodin, Immigration Attorney Las Vegas NV

Form i751 and divorce

I751 and the conditional permanent resident

Form I751 applies to conditional permanent residents. Conditional permanent resident (CPR) status is the immigration status that you get upon entering the United States with an immigrant visa or adjusting status to permanent resident unless the marriage is more than two years old. You can be granted conditional resident status as an original immigrant spouse of a US citizen or permanent resident. The immigrant spouse’s children may also obtain CPR status when the qualifying marriage of their parent is under two years old.

Conditional residents have the same rights, privileges, and responsibilities as lawful permanent residents. They have the right to file petitions on behalf of qualifying relatives and the privilege of residing permanently in the United States in agreement with the immigration laws. CPRs have a duty to register with the Selective Service System when required, and to comply with all laws and regulations of the United States including an obligation to file taxes on  income inside and outside the United States. See 8 C.F.R. 216.1.

Removal of Conditions by Joint Petition

To preserve permanent resident status a conditional resident must fulfill his obligation to file i751 conditions form for removing conditions on residence under INA section 216(c)(1). The filing is due within 90 days of the second anniversary of residence. The petition must be filed jointly with the petitioner who filed an immigration petition or fiance visa petition for you.

However, in certain cases, it is possible to file i751 alone without the petitioner in when the petitioner is dead, abusive or the qualifying marriage is legally terminated.

How are the conditions on residence removed using form i-751?

A conditional permanent resident (CPR) must file an i-751 removal of conditions form with supporting evidence and the correct filing fee within the 90-day period before the two-year green card expires. USCIS may allow late filing of form I751 under certain exceptional circumstances.

The conditional resident and the person who filed the original immigrant visa petition or fiancé(é) petition will file the I-751 form with USCIS. Both parties must sign the form.

The CPR will get an appointment notice with a specific time, date and place to capture his fingerprints, photo and  signature at a local USCIS Application Support Center. In practice a conditional resident will not have to surrender the 2-year Conditional Resident Card previously issued by the USCIS.

The conditional resident must establish that:

  1. The marriage was legal where it took place;
  2. The marriage has not been terminated;
  3. The marriage was not for the purpose of obtaining residency, and
  4. No fee (other than an attorney’s fee to assist filing) was paid.

If the USCIS Service Center Director finds that the marriage was in good faith and not to get around U.S. immigration laws, he may waive an interview. If not, the Director may ask for a marriage immigration interview or start a marriage fraud investigation. With some form i-751 petitions the USCIS may interview couples more than once. If the director approves the joint petition he or she will give written notice of the decision (I-797C, Notice of Action).

conditions i-751 - file forms i-751

Conditional permanent resident divorce

What if my petitioner refuses to sign the i751 petition?

When the marriage relationship is dysfunctional i-751 petitions may need extra care. A divorced or legally separated CPR may ask for a waiver of the joint filing requirement. To do so, the CPR must establish any one or more of the following:

  1. She entered the marriage in good faith, but the marriage was terminated (other than through death);
  2. She entered the marriage in good faith, but she or her child was battered and or suffered extreme mental cruelty;
  3. Termination of status and removal from the United States would cause  extreme hardship.

A conditional  resident who is unable to file a joint petition because divorce or annulment proceedings have started, may not apply for a waiver under the good faith marriage exception until the marriage is legally terminated.

If the couple is separated and has started divorce or annulment proceedings, the USCIS may still approve an I751 petition. The USCIS Service Director may not deny your I751 petition just because you are separated or have started divorce proceedings. However separation or the start of divorce proceedings may suggest that you entered into the marriage to get a green card.

Can I get a waiver if I am separated but not divorced?

There is no waiver of the joint filing requirement if you entered into a good faith marriage but are separated or in divorce proceedings. However, if you are in divorce proceedings and cannot get your U.S. citizen or lawful permanent resident spouse to file jointly, you may still ask for the waiver based on termination of the marriage.

A conditional resident who does this will get a USCIS Request for Evidence (RFE) for a decree with a response time of 87 days. The conditional resident gets the opportunity to prove eligibility for the waiver by submitting a copy of a final divorce decree or annulment.

It is a good idea to seek legal advice during the breakdown of the marriage before pursuing a waiver based upon divorce. You should also consider that obtaining a final divorce decree may take longer than the RFE response time.

What if divorce proceedings start after we filed the joint I751 petition? Do I have to re-file?

If the CPR filed an I-751 petition jointly but later become separated or have a pending divorce the USCIS will issue the CPR a Request for Evidence (RFE) with an 87-day response period. In the RFE, the USCIS will ask the CPR to send a copy of the final divorce decree. It will also request a written statement from the CPR that the jointly filed petition be treated as a waiver petition.

Avoiding-i-751-interview – Bona fide marriage evidence

To avoid an I-751 interview, you must demonstrate to the USCIS that your marriage was in good faith marriage and not just for a green card. You can prove a good faith marriage by showing that you lived together and mixed your finances by having joint assets and liabilities.

Bona fide marriage evidence may include tax returns showing that you filed taxes as married even if one of you made no income. You must show shared experiences – you vacationed together, were together at social outings and spent time together with family and friends.  Evidence of bona fide marriage may also include birth certificate of children together, proof of pregnancy, fertility treatment or even medical records related to a miscarriage.

Conclusion

As each person has a different immigration and marriage situation you should seek specific legal advice on how to file forms i-751 from an experienced immigration attorney. If you have any questions about removing conditions on residency or other immigration through marriage concerns contact us at 702-423-2721 to book an initial consultation. We also offer consultations for complex marriage immigration interview matters.