In this video attorney Jacob Sapochnick talks about your options, as a U.S. Citizen, if you have just discovered that your foreign spouse used you to obtain a green card.
When such a case arises, and we are representing the U.S. Citizen who has just discovered that they have been defrauded, we advise our client to seek outside counsel. We cannot advise our client on how to proceed if we have filed the case because providing such advise creates a conflict of interest.
If our office did not file the green card petition, then it is possible for us to assess the U.S. Citizens options by having a consultation and discussing the situation at hand.
Have you ever wondered what is bona fide marriage and what is the evidence required to establish bona fide marriage? In this video attorney Jacob Sapochnick will explain how you can go about proving bona fide marriage.
When applying for adjustment of status based on marriage, the foreign national must prove to USCIS that they have what is called a “bona fide” marriage, meaning that the couple has entered the marriage for love, and not solely to obtain an immigration benefit. USCIS requires the applicant to meet their burden of proof of bona fide marriage to prevent green card fraud.
There is certain documentation that must be provided to prove that the couple has a bona fide marriage. This documentation can be provided with the filing itself, or at the time of the green card interview.
What type of documents are required to show bona fide marriage?
Evidence of Cohabitation: to show bona fide marriage, the couple must show that they have been living together throughout the marriage. The types of documents that can establish cohabitation are lease agreements, property deeds, and secondarily utility bills (electricity bill, water bill etc.).
Evidence of Commingled Finances: in addition, the couple must provide evidence of commingled finances such as joint bank account statements showing activity on the account such as payments for rent, food, groceries, and regular household items.
Joint Ownership of Assets: if the couple has any assets held in both of their names such as real property, an automobile, ownership of stocks or bonds etc. they may provide evidence of such assets.
Other Joint Documents: The couple may also provide life insurance policy documents, health or auto insurance, or joint memberships in a club such as gym membership.
Photographs: The couple must present photographs of themselves with friends and family members throughout their relationship to show that they have a legitimate marriage.
Trips: the couple may choose to show evidence of trips or other activities they have undertaken throughout the marriage as proof of bona fide marriage.
In this video attorney Jacob Sapochnick discusses how to respond to a Notice of Intent to Deny (NOID) after a marriage fraud interview also known as the STOKES interview.
Overview:
As part of the I-130/485 application process to obtain a green card based on marriage, the couple must attend an in-person interview before USCIS to prove that they have a bona fide marriage.
During this interview the immigration officer must determine whether the marriage is in fact legitimate or whether the foreign national entered the marriage solely to obtain an immigration benefit.
If all goes well, the couple is approved following the initial interview.
If the immigration officer suspects fraud or is not convinced that the marriage is legitimate, the couple will be scheduled for a second interview or “STOKES” interview.
In this video attorney Jacob Sapochnick explains the differences between the K-1 fiancé visa and a marriage visa.
What is the K-1 Fiancé Visa?
The K-1 visa is available to foreign nationals who are engaged to U.S. Citizens only. K-1 visas are also reserved for foreign fiancées, who do not have any other means of coming to the United States. A K-1 visa holder must marry the U.S. Citizen fiancé/fiancée within ninety days of entry to the United States or else the alien must leave the country.
If the foreign fiancé does not intend to marry the U.S. Citizen within ninety days of arriving to the United States, then the K-1 fiancé visa is not a good option.
The K-1 fiancé visa is a good option for couples who want to spend time together in the United States before getting married.
The fiancé visa process is typically much faster than the marriage visa process.
Marriage Visa
Spouses Overseas: U.S. Citizens and Legal Permanent Residents may file Form I-130 on behalf of a foreign spouse residing abroad, so that the foreign spouse can apply for a marriage visa through the U.S. Consulate in their home country. Spouses of Legal Permanent Residents must wait for a visa to become available to them, before proceeding with the marriage visa application process.
Spouses within the U.S.: If the foreign spouse of a U.S. Citizen is residing inside of the United States on a valid visa type, then the foreign spouse can file Form I-130 and Form I-485 to adjust their status permanent residence at the same time.
The marriage visa application process is generally longer than the fiancé visa process, while adjustment of status for spouses residing within the United States is shorter than the fiancé visa process (typically 4-7 months processing time).
In this video, attorney Jacob Sapochnick discusses how you can obtain permanent residence if your U.S. Citizen spouse has passed away, and you are still in the process of applying for permanent residence.
Overview:
What happens if you and your spouse have filed the I-130/485, and your US Citizen spouse tragically passes away during the process?
SCENARIO ONE: If the couple married but did not have the opportunity to file the I-130/485 applications with USCIS, before the death of the US Citizen spouse, the surviving spouse can still obtain permanent residence by filing form I-360 as a widow(er), provided the couple had a bona fide marriage. Once the I-360 petition is approved by USCIS, the surviving spouse can proceed on their own in filing the I-485 application for permanent residence.
SCENARIO TWO: In cases where the I-130/485 applications have already been filed with USCIS, but the couple did not have the opportunity to go to their I-485 interview before the passing of the US Citizen, USCIS may still adjudicate the foreign national’s application for permanent residence, even if the US Citizen spouse is now deceased. At the interview, the surviving spouse must provide the US Citizen’s death certificate, as well as evidence of bona fide marriage.
If you have any questions regarding this process, please email jacob@h1b.biz, or contact our office.
In this video attorney Jacob Sapochnick discusses how to complete Form I-130 Petition for Alien Relative. Please keep in mind that this video is not intended to be legal advice. The information provided is for educational purposes only and does not substitute the legal advice of your attorney. If you are filing the I-130 Petition for Alien Relative on your own, you must read the form instructions very carefully or seek the assistance of an attorney who will complete the forms according to your specific situation.
If you are filing for adjustment of status, or for an immigrant visa, based on a qualifying family relationship, your petitioner must sign and complete Form I-130 Petition for Alien Relative to establish that a valid family relationship exists. If the beneficiary of the petition is the spouse of the petitioner, then the beneficiary must complete Form I-130A Supplemental Information for Spouse Beneficiary.
Filing a Form I-130 is only the first step in helping a relative immigrate to the United States. Certain eligible family members must wait until there is a visa number available before they can apply to become a lawful permanent resident.
Who May File Form I-130
U.S. Citizens and lawful permanent residents may file the I-130 on behalf of qualifying relatives.
For more information about adjustment of status please click here.
In this video attorney Jacob Sapochnick discusses how to complete Form I-485 for adjustment of status to permanent resident. Please keep in mind that this video is not intended to be legal advice. The information provided is for educational purposes only and does not substitute the legal advice of an attorney. If you are filing the I-485 application on your own, you must read the form instructions very carefully or seek the assistance of an attorney who will complete the forms according to your specific situation.
You must make sure that all of the information on the I-485 application is correct, because the I-485 form is the form that USCIS is going to use to prepare your green card. Form I-485 must be signed and completed by the beneficiary (the person that is applying for the green card), not the petitioner of the I-130.
What is Adjustment of Status?
Adjustment of Status is the process by which an eligible foreign national already in the United States can apply for permanent residence without having to return to their home country to obtain a visa through consular processing. Adjustment of status refers to the change of the foreign national’s legal status from a non-immigrant (temporary) category to an immigrant (permanent) category.
Generally, to be eligible to file for adjustment of status within the United States, a foreign national must have an immigrant petition filed on their behalf either by a US citizen (USC) or Legal Permanent Resident (LPR) qualifying relative (USCIS Form I-130 Petition for Alien Relative) or employer (USCIS Form I-140 Immigrant Petition for Alien Worker). Exceptions exist for self-petitioning Amerasian, Widow(ers), special immigrant categories such as refugees or asylees, and humanitarian visas. In addition, the beneficiary of the green card application must have been inspected, admitted, or paroled into the United States to qualify for adjustment of status within the United States, except in cases of 245i.
For more information about adjustment of status please click here.
In this video, we discuss the difference between adjustment of status and consular processing.
What is adjustment of status?
Adjustment of Status is the process by which a foreign national applies for permanent residence, essentially their green card, within the United States. In order to apply for adjustment of status within the United States, the foreign national must have entered the United States lawfully (typically on a U.S. visa) and be married to a U.S. Citizen. The foreign national must not have entered the marriage within the first 90 days of entry to the United States. Doing so creates a presumption of fraud and the couple will be denied at the green card interview.
Example: The foreign national entered the U.S. on a student visa, and later met a U.S. Citizen. The couple then became engaged, and married in the U.S.
The process begins with the filing of the following forms typically at the same time:
I-130 petition for alien relative (signed by the U.S. citizen)
I-485 application for adjustment of status aka the green card application (signed by the foreign national)
I-765 application for employment authorization (signed by the foreign national)
I-131 application for travel document (signed by the foreign national)
G-325A biographical information (signed by both the U.S. Citizen spouse and foreign national)
I-864 Affidavit of Support (signed by the U.S. Citizen)
The process ends with a green card interview before a USCIS immigration officer at a field office near the couple’s place of residence. The purpose of the interview is to determine whether the couple has a bona fide marriage. Both the petitioner and foreign national must attend this interview.
Learn more about the new 90-day presumption of fraud rule in this video and how it affects the adjustment of status of foreign nationals living in the United States.
1:37 – Our advice or suggestions for this new rule
Overview:
WHO:
In September 2017 the Department of State released an amended version of the Foreign Affairs Manual (FAM), which is a manual used by governmental agencies and other federal agencies that directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”
WHAT:
The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.
According to the amended FAM: If a foreign national engages in any of the following activities, and applies for an immigration benefit, the FAM directs immigration officers to apply a presumption of fraud or material misrepresentation when the foreign national seeks adjustment of status:
Join attorney Jacob J. Sapochnick for a free online webinar hosted by SimpleCitizen this evening on Tuesday, February 27, 2018 from 6-7 p.m. (Pacific Standard Time) and 9-10 p.m. (Eastern Standard Time). Attorney Jacob Sapochnick will teach you how to apply for a marriage based green card and how your family members can obtain permanent residence.
In this free online webinar you will learn how to prepare, assemble, and submit an entire adjustment of status application. Throughout our practice we have filed thousands of adjustment of status petitions helping foreign nationals obtain permanent residence from all over the world.
Immigration Lawyer Blog
