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

Sample Certificate of Translation

What is a certified translation?

Any foreign language birth certificate, marriage certificate other document of evidentiary value that is submitted to USCIS or an immigration court in connection with an application or petition, must be accompanied by a Certified English Translation.

The Certified English Translation is a full English language translation which the translator has certified as complete and accurate, and that he or she is competent to translate from the foreign language into English. 8 CFR 103.2(b)(3).

While a translation by a certified translation service or certified translator, the translation may also be done by anyone who is competent in both English and the foreign language in which the document is expressed.  The regulations do not require that the document be notarized.

Sample Certificate of Translation

An example of the certificate of translation follows.

CERTIFICATE OF TRANSLATION

I, [name of translator] declare that I am fluent in the English and [foreign e.g. Spanish] languages, and that the attached translation of [type of document e.g. birth certificate], related to [applicant’s or beneficiary’s full name], the original of which is in the [foreign] language, is a complete and correct translation from the [foreign] language to English to the best of my knowledge and ability.

………………………………………

Signature of translator

 

Vladimir Kotlya

(typed/printed name of translator)

75 East Harmon Avenue Las Vegas Nevada 89109 USA

(full street address of translator)

702-777-7777

(telephone number of translator)

If you have questions about the right evidence for an immigration application speak to an experienced immigration attorney. Call us at 702-423-2721 to schedule a free immigration consultation on your case.

 

Information for Marriage visa and K visa holders

Green card marriage issues

As Las Vegas immigration attorney who has handled many marriage immigration cases, I often see cases where the foreign nationals worry that their immigration status in the United States depends on someone else and the US citizens worry that the foreign national will divorce them after receiving a green card.

Abusive cases

One of the most shocking things to happen to potential immigrants to the United States is for them to suffer abuse or domestic violence at the hand of their US citizen or permanent resident spouse. Many people come to the United States for a better life but wind up living a nightmare of silent abuse and domestic violence because they “do not understand the system” and lack legal representation. One immigrant victim of spousal abuse was so embarrassed she could not mention her abuse to family and friends until things took a dramatic turn for the worst. Her US citizen spouse, who would not speak to her for weeks at a time, became violent and threatened to kill her.

There are protections in immigration law for abuse victims

The most important thing that immigrants who are victim of domestic violence need to know is that they do not have to live with an abusive spouse to remain legally in the United States. They should consult an immigration attorney as soon as possible. For those who cannot afford an attorney, free or law cost legal counsel is available. The immigration law protect victims of domestic abuse. The burden however is on the victim to prove the abuse (mental or physical) using documents such as medical records, testimony by social workers, the affidavits from persons with personal knowledge of the abuse and police reports.

Know your rights as a green card spouse or K1 visa holder.

VAWA petitions

The USCIS recently issued a pamphlet titled “Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa.” The brochure tells holders of marriage visas and k visas about their legal rights in the United States and where they can get help. It also informs them about US immigration options that are available without the sponsorship of an abusive spouse.

Get legal advice before you act.

Oftentimes trying to leave an abuser may provoke a violent reaction. For this reason it, is normally highly recommended that abuse victims consult an immigration attorney and a domestic violence counselor. The two will collaborate to devise a plan to help protect the immigration applicant. The immigration attorney will also help by gathering supporting evidence for a self-petition, interviewing the abuse victim and helping with preparation of the applicant’s declaration. Put the matter into the hands of a competent professional. If you have any questions call us at 702-423-2721 to schedule a consultation to find your immigration options.

Read the USCIS brochure here.

Goodin Law P.A. | Las Vegas Immigration Attorneys 702-423-2721.

Birth certificate not available for green card

No birth certificate for green card?

Sometimes clients do not have certain civil documents such as birth or marriage certificates, to prove that they are eligible for visas or green cards. These types of case need more care and skill. Here is a brief discussion of the issue using a birth certificate as an example.

A visa applicant is responsible for bringing the original or certified copies of required civil documents to a visa interview to prove his or her eligibility for a visa. The USCIS may need a petitioner or beneficiary to send photocopies of the original or certified copies with a petition or application. Sometimes however birth or marriage certificates or other required documents (e.g. court documents, police records) are non-existent or cannot be obtained from a government agency in certain countries.

Reasons for non-availability

Sometimes a marriage or a birth is never registered. Registration of births was voluntary in India before 1970. War and civil unrest may destroy government archives (e.g. Liberia). In countries such as Cambodia, some birth and marriage records for certain periods are simply unavailable.

Proving birth and marriage by certificate of non-availability and affidavits

The US Consulate or USCIS will presume that an applicant who fails to produce or send required documents is ineligible for a visa or other benefit (e.g. a green card). The good news however is that the applicant can still prove eligibility using secondary evidence.

Certificate of non-availability

If a birth or marriage certificate is unavailable, an applicant must offer proof by obtaining a certificate of unavailability from the government agency where such documents originate unless the State Department recognizes that documents of that type are generally unavailable. The State Department Country Reciprocity Schedule indicates what type of required country documents are unavailable for particular countries. 

 

Non availability of birth certificate
Baptismal Record – Unavailable Birth Certificate
Secondary evidence of birth when birth certificate unavailable for green card

In addition to obtaining a certificate of non-availability (also called certificate of unavailability) the applicant must also bring or send secondary evidence of the event such as;

  • a passport ,
  • church records,
  • baptismal records,
  • adoption decrees,
  • hospital records,
  • school records, and
  • affidavits.

The applicant should offer two separate affidavits to prove a birth or marriage.  The affiant should be a person who was alive at the time of the birth or marriage and has personal knowledge of the event. The affiant may also be someone who can testify to family history.

The contents of affidavit of birth

The affidavit of birth or marriage should state

  1.  The full name of the affiant
  2. The date and place of birth of the affiant
  3. The affiant’s relationship to the applicant
  4. Full information about the event – when and where it took place
  5. How the affiant is familiar with the event (e.g. birth or marriage).

Additionally the affiant must sign the affidavit before a notary. For foreign language documents submitted to USCIS a certified translation into English must also be submitted.

Conclusion

In some family based cases involving non availability of birth certificates, the USCIS or the State Department may require a blood test to prove the claimed relationship. If you have any questions please speak to a qualified immigration attorney. If you need help with an immigration application call us at (702) 423-2721 to schedule a lawyer immigration consultation to discuss your individual needs.

What is K3 Visa?

The K3 Visa

As a Las Vegas immigration lawyer I often see cases where a US citizen is petitioning for a spouse living abroad and become concerned about the time it will take to bring the spouse to the United States. The k3 visa might be one option that the US citizen might consider. K3 visa waiting times can be shorter than waiting times for I-130 Petitions. However in practice K3 waiting times can be shorter or longer than posted USCIS processing times; and there is no guarantee. The processing times for some I-130 Petitions can also be shorter than posted processing times. Tactically though a K3 visa petition is something to consider if a married couple is very concerned about long waiting times.

Las Vegas Immigration LawyerPurpose of K3 visa

The LIFE Act of 2000, allows an alien who

  1. has a valid marriage to a U.S. citizen (husband or wife) and who is
  2. the beneficiary on Form I-130, Petition for Alien Relative, and
  3. the beneficiary of an approved petition on Form I-129F, Petition for Alien Fiancé(e),

admission into the United States as a K3 non-immigrant to adjust to immigrant status (get a green card) while inside the United States. The K3 visa is different from the K1 visa in that the K1 alien is merely engaged to marry a U.S. Citizen and is seeking admission as a non-immigrant K1 to get married in the United States and adjust to immigrant status (green card).

Benefit of K3 Visa

  •  Avoids long wait abroad. Prior to the passage of the LIFE Act the spouse of a U.S. citizen who resides abroad had to wait for the length of time it took to process an immigrant visa which could be a year or more in some cases.
  • Derivative  K 4 status for children. The dependent children of the spouse of a U.S. citizen with an approved I-129F petition, who are accompanying or following to join their K 3 parent get admission on K 4 derivative status.
  • Admission for 2 years.  K 3 non-immigrants are initially admitted for a 2 year period. Extensions of stay are available for K3’s whose adjustment of status is not complete.
  • Employment in the United States. K-3/K-4 aliens must apply to USCIS for a document evidencing employment authorization using Form I-765.

End of K3 visa status

Termination of K3/K4 status. K3/K4 status automatically terminates 30 days after

  1. The denial or revocation of the Form I-130 petition;
  2. The denial or revocation of the immigrant visa application (Forms DS-230) filed by the alien;
  3. The denial or revocation of the alien’s application for adjustment of status (Form I-485) to that of lawful permanent residence;
  4. The K-3 spouse’s divorce from the U.S. citizen (final judgment);
  5. The marriage of an alien in K-4 status.

The K-4 status also ends with the denial of any of these petitions or applications for a K-3 parent. Nevertheless, a denial or revocation of a petition or application is not effective unless you have exhausted the administrative appeal applicable to your application or petition.

Conclusion

K3 visa applications can take unexpected twists and turns. Put the matter into the hands of a knowledgeable and experienced immigration lawyer. If you have any questions call us at 702-423-2721 to schedule a consultation to determine potential eligibility for the K3 visa.

Gary Goodin, Las Vegas Immigration Lawyer at Goodin Law P.A. 702-423-2721.