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

The American Fiance Visa Petition

K1 visa requirements

The K1 visa process begins when a US citizen files form I-129F with the United States Citizenship and Immigration Services (USCIS) for a foreign fiance. The petition must be filed and approved before a Consulate can issue a K1 visa to the alien fiance.

Under Section 214(d)(1) of the Immigration and Nationality Act, for the Department of Homeland Security to accept the request, the citizen fiance must prove that the parties:
1. have previously met in person within two years before the date of filing the petition,
2. have a genuine intention to marry, and
3. are legally able and willing to conclude a valid marriage in the United States within a period of ninety days of the admission to the United States of the foreign national fiance in K1 status.

If the petitioner has a conviction or had a restraining order issued against him concerning certain specified crimes, he must obtain a waiver from the Secretary of Homeland Security the K1 petition can be approved.

 

K1-Visas-family-green-card

What are the specified crimes – K1 visa petition?

The specified crimes are following:
(i) Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking, or an attempt to commit any such crime.
(ii) Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of the crimes described in this clause.
(iii) At least three convictions for offenses related to a controlled substance or alcohol not arising from a single act.

A waiver is unlikely to be approved if the petitioner has a record of violent criminal offenses against a person.

Supporting documents for the K1 visa petition

You should submit the completed I-129F petition should with proof of your US citizenship, certified copies of all court and police records if you have a conviction for certain crimes, the marital history of you and your fiance the I-129F filing fee and other required documentation. You may need to request a waiver if you have convictions for certain crimes or you made multiple filings. A petitioner who is not in the United States may execute the petition before the United States consular or an immigration officer for forwarding to the Stateside Service office having jurisdiction for adjudication.

Remember that k1 petition is just the first step in the k1 visa process. An approved petition is not a visa. However, if the request is approved, your fiancé will then apply for a k1 visa and attend an interview at a US embassy or consulate. The interview must take place while the petition is still valid. The petition is valid for four months but may be re-validated for extra four-month periods for a good cause, if you still intend to marry. When your fiancé comes to the United States, and you get married within the ninety days period following her admission your fiance will then apply for adjustment of status (a green card) and work authorization.

Consult a K1 visa lawyer for best results

The K1 visa process can get complicated and confusing. To understand k-1 visas and to protect your interests, consult an experienced K1 visa lawyer. If you have any questions about k1 visa requirements, family green cards or more, call us at 702-423-2721 to schedule a consultation with our Las Vegas attorney.