Before intending family-based immigrants are issued their visa, or approved for adjustment of status, the petitioning U.S. family member or their joint co-sponsor will have to submit an I-864 Affidavit of Support (or acceptable I-864 variation) and most of the time, satisfy certain income requirements.  The most common exception is the option for a petitioner to prove their financial health by way of ownership of sizable liquid assets as evidenced by bank/brokerage account statements or real property appraisals.  The income requirement applicable to most petitioners is 125% of the poverty level as determined by the U.S. Department of Health and Human Services.  For sponsors residing in the lower 48 contiguous states in the U.S., applicable guidelines are set forth below:

2013 Poverty Guidelines for the 48 Contiguous States and the District of Columbia 

Size of family unit       Poverty guideline       125%

2                                      $15,510                    $19,388

3                                      $19,530                    $24,413

4                                      $23,550                    $29,438

5                                      $27,570                    $34,463

6                                      $31,590                    $39,488

7                                      $35,610                    $44,513

8                                      $39,630                    $49,538

For family units with more than 8 members, add $5,025.00 for each additional member to meet the required 125%.  Poverty Guideline level

PUBLISHED February 27, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

On March 30, 2012, US Department of Homeland Security/Citizenship and Immigration Services first announced its plan to implement a “stateside” I-601 Waiver program, an initiative for processing a “waiver of inadmissibility” for certain applicants for permanent residence who under current law, are ineligible to undergo final green card processing in the U.S.  Under the current system such individuals must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country.  With the new stateside waiver program, however, instead of facing a 3 month or so wait to receive a decision on their waiver application while outside the US, applicants will only need to wait as little as a few days or week outside the US, since the 3 months of processing will now take place before the applicant’s departure.  With the most recent announcement, this program is set to take effect starting March 4, 2013.

Who benefits from this new program?  With some exceptions, the vast majority of applicants are spouses of U.S. citizens who have been present unlawfully in the U.S. for an extended period after previously entering the U.S. without being inspected/without a visa.  Unless they are covered under INA Section 245(i) (another discussion), these applicants are unable to “adjust” their status and undergo all immigrant processing in the U.S.  This class of applicants is to be distinguished from those who merely overstayed their nonimmigrant visas (excluding crewman and K-1 entrants), and who continue to be eligible to adjust status in the U.S. if they marry a U.S. citizen, notwithstanding their having overstayed their visa status or engaged in unauthorized employment.

What exactly is being processed “stateside” vs. at a U.S. consular post outside the U.S.?  It’s an I-601 Waiver Application to excuse an applicant’s period of 6+ months of unlawful presence in the U.S., and the consequent 3 or 10 year bars to reentering the U.S.    An I-601 application is approved only if the applicant can demonstrate that his denied reentry will pose extreme and unusual hardship for his U.S. citizen or permanent resident spouse or parent. Of course, there’s no guarantee all applicants for a waiver will be approved under the program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 or 10 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country.  Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there truly is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived or excused.

What is the first step for those benefitting from this new program?   An I-130 visa petition on behalf of the foreign national in question must be filed and US DHS/CIS must approve the petition, a process that takes anywhere from 3 to 6 months.  And such a petition can be filed immediately, and with no need to wait for March 4, 2013 to submit the petition.  As stated, it’s mainly spouses of U.S. citizens that will be benefitting from the program although other classes of family based immigrants may also be helped by the program.  But for spouses of U.S. citizens, an immigrant visa becomes immediately available upon the approval of the petition, and the foreign national’s immigrant visa is immediately ripe for processing.  Within weeks after the I-130 petition is approved by US DHS/CIS, processing shifts to the U.S. Department of State’s National Visa Center and the parties are contacted to facilitate immigrant processing, and under the new program, the processing of the stateside waiver application.

Must the applicant appear for an interview on the waiver?  No.  Applicants will be directed to file their I-601 application and supporting documentation with DHS/CIS by mail.  As of this writing, DHS/CIS’ California Service Center will be making a decision on the application based on the documentation presented, and without conducting a face to face interview.  Such a protocol makes the preparation of a thorough and well documented waiver application all the more important, since its only by way of documents that applicants get a shot of being approved.

More information about the program can be obtained by way of the US DHS/CIS website:  www.uscis.gov

In any case, before proceeding with such a filing, it is highly advisable for prospective applicants to first consult with a knowledgeable and trustworthy immigration attorney to confirm eligibility and provide a frank assessment of the risks at play and prospects for success.

PUBLISHED January 3, 2013 – “IMMIGRATION LAW FORUM” Copyright © 2013, By Law Offices of Richard Hanus, Chicago, Illinois

The battered spouse, whether a man or woman, is a protected class in the world of immigration law. Sensing that foreign nationals who marry U.S. citizens or residents can become vulnerable to the U.S. spouse’s physical or extreme mental abuse, Congress enacted a variety of laws aimed at protecting these foreign nationals. These laws create avenues for the foreign national to obtain U.S. resident status, no matter the cooperation or support of the abusive U.S. citizen. The avenues are available in the following contexts:

I-360, Battered Spouse Self Petition (for those not yet issued a green card):

Whether the foreign national is in lawful nonimmigrant (temporary) status, overstayed their nonimmigrant status, or entered without a visa in the first place, the I-360 Battered Spouse Self Petition can be a vehicle for a battered spouse to obtain U.S permanent residence, and again, without the assistance or support of their U.S. spouse. Battered spouse self-petitioners must be of “good moral character”, and document their petitions with one or more of the following types evidence: 1) their own detailed affidavits, as well as those of witnesses to the abuse, 2) hospital or police records, 3) order of protection, 4) records detailing any therapy or other mental health services sought by the abused spouse, 5) photographs of any physical injury, 6) affidavits from clergyman. With the approval of a Battered Spouse Self Petition, the foreign national has a direct path to proceed with an I-485, Application to Adjust Status to Permanent Resident.

I-751, Waiver of Joint Petition to Remove Conditional Basis on Permanent Residence (for those issued only a 2 year, conditional green card)

When a foreign national is first accorded resident (green card) status based on marriage, it’s usually for only a 2 year conditional period. At the end of this period, ideally the marriage is intact, and the husband and wife file a Joint, I-751 to confirm and document their cohabitation at time of filing and for the two years following conditional green card issuance. However, when the marriage does not work out, including when the foreign national has been the victim of the U.S. spouse’s physical or extreme mental abuse, a waiver, or an excusing, of the joint petition, is available, and where only the immigrant spouse’s signature is required. An I-751 waiver request will be granted when the foreign national can prove:

a) that the underlying marriage has been dissolved and that the relationship was entered into good faith and not just for the purpose of obtaining immigration benefits,
b) that the denial of the waiver request would result in extreme hardship to the applicant and their family, OR
c) the applicant is a battered spouse and was the victim of physical abuse or extreme mental cruelty at the hands of their U.S. petitioning spouse.

In support of the waiver request, the applicant should be ready to submit documentation, if available, reflecting that for at least some period of time the couple shared a residence, such as joint bank account statements, tax returns, insurance records, credit account statements, photos or other documentation reflecting a shared residence or cohabitation is helpful.

Even more important to waiver filings submitted on a battered spouse basis – as is the case with the self-petition discussed above, is the inclusion of detailed affidavits from the applicant, witnesses and sometimes even a mental health professional, attesting to the sincerity of the marriage and the abuse inflicted upon the foreign national by their US spouse. These affidavits are especially valuable when the joint residence documentation described above is not available – as is not uncommon when the marriage at issue is filled with turbulence or disharmony.

Cancellation of Removal for Battered Spouses: If the foreign national is placed in removal proceedings after, for example, the underlying marriage based application is withdrawn by the US spouse – leading to the denial of the green card application, the foreign national also has the option of applying for Cancellation of Removal as a Battered Spouse before the Immigration Court. This application, if approved, also leads to the foreign national being accorded resident status, with the decision on such an application resting with the Immigration Judge. This application involves many of the same requirements as the I-360 Battered Spouse Self Petition, although applicants for Battered Spouse Cancellation of Removal also must document their physical presence in the U.S. for a three year period leading up to their application AND that their removal from the U.S. would cause them, their child, or their parent, “extreme hardship.” Importantly, battered spouses awaiting a final court date for a hearing on their Battered Spouse Cancellation applications (sometimes up to 2 years), are eligible to receive an employment authorization document.

Obtaining approval of any of these types of immigration filings is never easy. However, half the battle for so many foreign nationals in most any immigration law quandary is getting straight information about their options, and simply knowing which options exist and which do not.

PUBLISHED November 3, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

As in years past, millions of people from all over world will submit entries to have a chance at one of 50,000 diversity immigrant visas and obtain “green card” status in the US. Excluded from eligibility are natives of Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and Vietnam. That is because these are considered to be “high admission” nations, and the basis of Congress establishing the visa lottery statute was to provide immigration opportunities for individuals from other, non-high-admission countries. The determination of which countries are “high admission” is made year to year.

The entry period for the 2014 visa lottery begins at noon (EDT) on Tuesday, October 2, 2012 and continues through noon (EDT) November 3, 2012. Individuals who are picked will ultimately be eligible to enter the US (or adjust their status, if they are already in the US and are otherwise eligible) during the 2014 fiscal year which runs from October 1, 2013 through September 30, 2014. There is no fee to enter the visa lottery, and entrants will be able to learn of the success or failure of their effort starting around May 1, 2013 via online case status check. (Be aware – the only time an applicant will be asked to submit a fee is after his entry has been chosen and it is requested by a U.S. Embassy or Consulate in the context of the processing of his immigrant visa.)

Importantly, chosen applicants will not be advised of the success of their applications via email or other direct communication from the Department of State or other government agency. Thus, applicants who receive such a congratulatory or “winning” email should know that it is a fraud and avoid getting caught up in such a predatory scam! Instead, all applicants will be directed to check the status of their entry online starting May 1, 2013 and through June 30, 2014, via Department of State website and through an individualized confirmation number provided entrants after the submission of their application.

Some features: (FYI, anything and everything you need to know about the visa lottery and entry instructions can be found at www.dvlottery.state.gov. Accordingly, beware of websites or companies charging exorbitant fees to “consult or offer special “inside” assistance with the process!)

All entries are electronic and like in years past, among other requirements, applicants must submit photos conforming to detailed specifications.

Other noteworthy features of the DV 2014 Green Card lottery:

• Winners are chosen randomly, and again, there is no initial application fee.

• Applicants must have either a high school education or its equivalent, OR two years of experience working in a “skilled” position within the past 5 years (details on what types of positions qualify are included on the visa lottery website noted above).

• There is a limitation on one application per individual. Qualifying individuals in the same household may submit individual applications.

• Applicants can be living in the U.S. or abroad.

• Those picked as winners are eligible to have their spouse and children under 21 years of age join in on receiving the same green card benefits. Siblings and parents of winners do not stand to derive immigration benefits.

For every detail featured in this column, there are at least 10 that I did not discuss. The application is not rocket science, and again, individuals should not be tricked into thinking they need to pay an exorbitant fee to have their application processed. Nor should anyone be tricked into thinking that payment of a fee to a “professional” increases their chances of being picked. As stated, complete details on the 2014 DV visa lottery program can be accessed at www.dvlottery.state.gov.

PUBLISHED September 25, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

The momentum is unmistakable. State by state, our country is taking a serious look at the issue of gay marriage, with the volume of the local and national discussion only getting higher. Whether you believe same sex marriage is right or wrong, or should or should not be legalized, the issue certainly raises a multitude of questions on the rights of our gay population and the fairness of our current laws as applied to them. One such question involves the fairness of our immigration laws for individuals involved in same sex relationships. Should a heterosexual in the U.S. have any greater right to live in peace and harmony with their significant other or spouse than a gay individual in the U.S. who seeks to live with their partner – and particularly when that partner is from another country?

For a good portion of our society, the debate is complicated and emotional. And of course, with religion being an integral part of the discussion for many – if not most, it is next to impossible to avoid the explosive land mines that come with any conversation about morals or how God wants us to behave. The Constitution was written and adopted to guarantee, within certain limits of course, liberty and fairness for our citizens. But then again, the framers of the Constitution made no secret that Judeo-Christian principles were heavy on their mind when they went about their business of drafting the document.

To this point, 6 states have legalized same sex marriage, although the federal government (with the passage of the Defense of Marriage Act, or “DOMA” in 2006) and the vast majority of the rest of our states have enacted measures to prohibit recognition of same sex marriage. On the other hand, according to Wikipedia, approximately half of the US population now supports or has no objection to same sex marriage, a significant shift from 1996 when only 25% of Americans held such positions.

The legislative measures above have sparked numerous state and federal lawsuits – from both sides of the debate – challenging the legality of the pro-legalization or anti-legalization law in question. The Obama administration has sort of stepped forward to support the legalization of gay marriage, but we certainly do not hear President Obama screaming his support from the roof tops, especially as we inch our way toward November. On the other hand, the Obama administration has taken the bold step of allowing Department of Homeland Security officials to factor in same sex relationships with U.S. citizens in prosecutorial discretion decision-making for non-citizens in removal proceedings. Additionally, among other supportive policies, the U.S. Department of State has implemented regulatory measures to allow same sex partners of certain temporary work visa holders to accompany their partners to live in the U.S. for the term of their visa.

Like immigration law and policy, the gay marriage debate has become a powerful political football for players on the national stage to kick around. Whether same sex marriage becomes legalized or not, given our society’s growing comfort with the notion of same sex relationships, or simply gay individuals living their lives in the open, it seems to be just a matter of time before U.S. citizens who are gay will have the same rights as heterosexuals to have their legally recognized foreign partner/spouse live with them in the U.S. And more likely than not it will be the U.S. Supreme Court that will decide when that time will be.

PUBLISHED June 1, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

The requirements to become a U.S. citizen by way of an N-400 Application for Naturalization are generally not complicated, although situations frequently arise where significant questions regarding an applicant’s eligibility are raised.

General Requirements for Naturalization:

1. The applicant must be at least 18 years of age and a lawful permanent resident for 5 years. For those who are married to a U.S. citizen, the requirement is only 3 years or residence, although the applicant must have been married to and living with that U.S. citizen spouse for at least 3 years to qualify for this shortened eligibility period.
2. The applicant must demonstrate “good moral character” during the qualifying 5 or 3 year period.
3. The applicant must not have been absent from the U.S. for 1 year or more during any single stay outside the U.S. over the course of the qualifying 5 or 3 year period AND the applicant must not have been absent from the U.S. an aggregate of more than half of the qualifying time. Absences of more than 6 months, but less than a year, during the qualifying period can be problematic, depending on the circumstances.
4. Applicants must demonstrate the ability to read, write and speak English along with a basic knowledge of U.S. government and history. Certain exceptions are made for various classes of older residents who have been residing in the U.S. for extended periods, as well as for individuals with physical and mental disabilities.

Naturalization Requirements Questions and Issues

Q: Can I submit my application prior to accumulating the requisite period of residence?

A: Yes. Applications can be filed during the 90 day window prior to accumulating the necessary years of residence.

Q: What if I was the subject of criminal charges during or even before the qualifying period?

A: Generally, criminal charges that are dismissed do not pose any eligibility problems, as long as the applicant discloses the fact that they were arrested (it will show up on the fingerprint report anyway, and even if the record gets expunged). Criminal charges that lead to a conviction will definitely affect eligibility, even convictions for driving under the influence and even some convictions taking place prior to the eligibility period. Given the complexity of the law in this area, as well as the potential deportation consequences, I would advise all applicants with criminal backgrounds to consult an attorney before submitting an Application for Naturalization.

Q: What if I no longer reside with my U.S. citizen spouse and the basis of my application was a 3 year qualifying residence period?

A: Unlike the 5 year qualifying period, applicants who apply based on a three year eligibility period carry the burden of demonstrating that they continue to reside with their U.S. citizen spouse up through the time of their interview and their oath ceremony.

Q: How will absences of longer than 180 days – but less than a year, affect my eligibility?

A: Applicants with such absences during the qualifying period will have the burden of demonstrating to the CIS adjudicating officer they did not abandon their residence during this period, and therefore the extended departure should not constitute a break in the qualifying residency period. Factors considered by the CIS in assessing the nature of the departure include: did the applicant take work overseas? Did the applicant maintain a place of residence, bank account, business affiliation, employment ties, etc. in the U.S. during their departure? What was the intention of the applicant at the time they departed?

As far as processing times are concerned, applicants in Illinois are generally scheduled for their interview within 3 to 4 months from the date of application. Approved applicants are generally scheduled to appear for their oath ceremony within a week or two following the interview. Certain applicants with criminal backgrounds or other complicating factors may still qualify to be approved, but may face delays – like 90-120 days, in receiving notification of approval since these types of cases must undergo supervisory review before an approval is issued.

PUBLISHED May 15, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

On March 30, 2012, US CIS published a proposed rule for the implementation of the “stateside” I-601 Waiver program. That does not mean the program is now in effect, just that the government has commenced the beginning steps toward implementation of the program, with some commentators expecting the rule to be implemented by the end of the calendar year.

As previously discussed here, the proposed program would serve to streamline processing of certain applicants for permanent residence who under current law, must leave the US for an extended period for their final green card/ interview, and appear before a US consular officer in their home country. Instead of facing a 3 months or so wait to receive a decision on their waiver application while outside the US, the new proposal will allow for a wait as little as a few days outside the US, since the 3 months of processing is now being proposed to take place before the applicant’s departure. And what is being decided in this period is an “I-601 waiver” application to excuse, or “waive”, the individual’s previous period of unlawful presence in the U.S. and consequent 3 or 10 year bars to reentry, where cases are approved only if the applicant can demonstrate that his denied reentry will pose extreme hardship for his U.S. citizen or permanent resident spouse or parent.

Of course, there’s no guarantee all applicants for a waiver will be approved under this proposed program, but this new procedure will no doubt be of great comfort to families by letting them know ahead of time if the main obstacle (3 year bar) to their loved one’s reentry has been removed – and repeat, before the applicant leaves the US for their interview in their home country. Thus, if the applicant’s waiver application is denied, that decision will be known before any trip outside the US takes place. The applicant will then know there is no reason for the applicant to appear for their interview before a US consular officer in their home country, since he will know he will indeed be subject to a bar to reentry that has NOT been waived.

Developments toward actual implementation of this program will continue to be reported on here.

PUBLISHED April 1, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Everyone wants things done yesterday. When it comes to processing of a green card, U.S. citizenship, work permit, work visa, student visa, or any other immigration benefit, the same holds true. And when people hear that a “Premium Processing” unit is in place at U.S. Department of Homeland Security/Citizenship and Immigration Services here in the U.S. to provide expedited service (as quick as 1-15 days) on immigration related filings for an additional fee, lots of folks want in.

Firstly, not all immigration filings can be submitted for Premium Processing. Most notably, for example, Premium Processing is not available for family based immigration filings, such as green card filings based on marriage or other family relationships.

However, for the vast majority of employment-based immigration filings, Premium Processing guarantees 15 calendar day processing, and if that time frame is not met, the employer will received a refund of the Premium Processing fee – which is at $1225.00 currently. If the fee is refunded, the case will continue to receive expedited processing.

What’s Guaranteed in 15 days – The petitioning party will receive one of the following within a 15 calendar day period of filing: an approval notice, a denial notice, a notice of intent to deny, a request for evidence or a notice advising of an investigation for fraud or misrepresentation. If additional evidence is requested, a new 15 calendar day period will begin once the response is received by CIS.

Premium Processing is available for practically all types of temporary work visa filings, except that religious worker petitions must have already been the subject of a previous on-site inspection (relating to a prior filing) to qualify. As to petitions to accord permanent status (I-140), the same is true – and like for temporary worker petitions, there are some exceptions, e.g. petitions based on “National Interest Waiver”, international executives and managers and a few others are not eligible for Premium Processing. Further, for workers seeking to “adjust” their status in the US and undergo all permanent residence processing in the US and without appearing at a US consular post abroad, only the I-140 (immigrant worker petition) stage of the process is eligible for Premium Processing. The I-485 (adjustment of status) application – the second stage – is not eligible for Premium Processing.

Additionally, the Premium Processing service only plays out with regard to CIS processing in the U.S., and it does not include the additional time it may take such as for the U.S. Department of State, through a U.S. embassy or consular post, to process a visa to allow a foreign worker abroad to ultimately gain entry into the U.S.

It should also be noted that under certain extraordinary and/or humanitarian circumstances, practically any type of immigration filing, whether family based or employment based, might be eligible for expedited processing and without paying a premium processing fee – as long as the extraordinary or humanitarian circumstances at play can be documented.

PUBLISHED March 20, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

U.S. Department of Homeland Security/Citizenship and Immigration Services continues to do its job with efficiency and speed when it comes to processing Applications for Naturalization (N-400) and Applications for Adjustment of Status (green card – I-485) based on marriage to a U.S. citizen, or other family or employment immigrant category with current visa availability. Immigration interviews, at least through CIS Chicago, are being scheduled with lightning speed, and card production for approvable permanent resident applicants, and oath ceremonies for approvable U.S. citizenship applicants follow within just a week or two of the interview. In my 20+ years of practicing immigration law, I can say that the logistics of these aspects of the immigration benefits system have never worked better.

Here is the current timeline for family based, I-485 adjustment of status applicants — assuming the paperwork and all supporting documentation is prepared and filed correctly:

1. Dept. of Homeland Security/Citizenship and Immigration Services issues receipts within approximately 5 to 10 days of filing date,
2. Biometrics (fingerprint) appointment scheduled within approximately 10-15 days of filing date,
3. Employment Authorization Document (and for those eligible, Advance Parole Travel Document) issued within 45 to 90 days of filing date, and
4. Interview (at least at CIS Chicago) scheduled within 90 -120 days of filing.

Please note that interviews will be scheduled for all marriage-based applications, but not necessarily for other types of family-based cases. Applicants with arrest records or other significant immigration-related irregularities will always be interviewed.

The timeline for N-400 applicants for naturalization — assuming prepared and filed correctly — is pretty much the same as for I-485 applicants, except that interviews are scheduled within 3-5 months of the filing date, and oath ceremonies scheduled approximately 1-2 weeks following the interview.

What can impact this timeline? If the application and all supporting documentation, such as the Affidavit of Support, are not prepared correctly, additional weeks or months can be added to Employment Authorization Document and/or I-485 processing times. Also, if questions surrounding the applicant’s legal eligibility for permanent residence or U.S. citizenship comes into play — especially at the time of interview — weeks, months, and even years can be added on to this processing timeline. But when the case is prepared properly, and clear legal eligibility for the immigration benefit is established, applicants can pretty much expect smooth and speedy sailing.

PUBLISHED March 9, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois

Question: Which travels quicker – good news or bad news? Bad news, of course. “Train Wrecks” are exciting, interesting, sensational and sometimes, satisfying – especially when it concerns the failure… of others. To confirm this notion, all one has to do is visit the grocery line and review the covers of those grocery line magazines, or tune in to TMZ, Access Hollywood, Entertainment Tonight or another similarly sophisticated television program. For instance – in the U.S. government realm, when was the last time you heard about how great the U.S. postal system, or any government agency, was working? And those green card interview stories, where marriage to a U.S. citizen is involved! Everyone has heard about them – either from their friends or acquaintances, the movie “Green Card”, or simply by surfing the internet and having the good (mis)fortune of reviewing this or that immigration blog. “I heard that they separate the couple and berate each party individually”, “I heard the immigration officer calls the parents of each party and ask lots of questions”, “I heard they send big and tough immigration agents to the home to visit to make sure the couple really lives together.” Certainly, those types of accounts are enough to stir up anxiety in anyone thinking about starting this process.

And in some circumstances, these stories may be true – but are they representative or typical? In fact, most immigration interviews dealing with marriage applications are conducted in a civil manner and do not involve extraordinary immigration officer action, whether conducted in the U.S. at a local Citizenship and Immigration Services office, or at a U.S. consular post abroad. That is, the governmental official conducting the interview has a duty to be respectful and dignified when doing their job – no matter the issues or suspicions involved. The outcome should, and usually is, dictated by the sincerity of the couple presenting themselves. When the wrong outcome results, there is indeed legal recourse available, although the wheels of justice to undo such a wrong in this arena tend to move very slowly.

In marriage based interviews, the bona fides, or sincerity, of the marriage is usually what is at issue, and immigration officers have a duty to make an assessment. In these times – with much of the rest of the world’s economies crumbling and so many foreign nationals seeking to make a better life here in the U.S., immigration fraud and “marriages of convenience” are rampant. It is indeed the immigration officer’s job to scrutinize, and send a statement that applicants for U.S. residence will only be issued an approval after the immigration institution is satisfied that the marriage is “for real”. Again, scrutiny and review can and should be conducted in a civil manner – however, as with any group of individuals who hold immense power – such as immigration officers, there is bound to be a certain percentage who abuse their power. This sad reality is particularly troublesome when the application being reviewed is a “clean case”, with parties who have nothing but the sincerest of intentions and there being no indication of “monkey business”.

What factors typically give rise to marriage fraud suspicions? (Some of these may not apply for applicants being interviewed overseas). Big age difference between the parties. Significant difference in their cultural and/or religious backgrounds. The foreign national applicant’s immigration law violations e.g. out of status, no status, history of unauthorized employment, etc. Prior immigration applications, especially prior marriage based filings. Quickie marriage based on a relationship of short duration.

Public Record Searches and Online Investigation: Immigration authorities are also known these days to engage in extensive public records searches and online investigations. It is not uncommon for immigration officers to conduct credit checks and address searches based on social security numbers the parties provide. A person with awful credit may be perceived as being inclined to marry a foreign national for a fee, and not love. Also, suspicions may arise if the addresses that come up in a credit check do not match up with information in the immigration filing. Further, information connected to an applicant’s online identity on a social networking site may conflict with information including in their immigration filing. Yes, the beauty of the information age is that there is so much of it out there. But, as most internet users know, there exists the danger that not all of the information “out there” is accurate, and that applies to the information authorities may jump on to reach conclusions about an applicant’s eligibility for a green card. Under the law though, the parties should be given an opportunity to address or clarify any derogatory or conflicting information that may arise during the process.

As we know that marriages come in all sizes, shapes, colors and flavors, no single factor will necessarily doom a case or cause irresolvable difficulties. It is just that the immigration officer will have a good reason to ask more questions, and perhaps refer the file for a formal investigation.

How important is it to obtain documentation reflecting joint or commingled assets, and shared residence? Documentation, such as bank statements, bills, photographs, leases, etc., to substantiate a claim that a couple lives together is certainly important, but it is no way the end of the story. The bottom line is that anyone, including individuals that do not actually reside together, can obtain a joint bank account, a lease, a bill or whatever, indicating a common address.

In my many years representing applicants for residence during their interview, I have found that the couples’ body language what tells the story, and is more compelling than any joint asset/obligation document. An experienced officer can tell a lot from watching how a couple interacts during an interview. Yes, it is quite ok and normal for an applicant to exhibit some level of nervousness. Beyond normal nervousness, however, either or both of the parties might display certain suspicious idiosyncrasies that prompt concern. What are those idiosyncrasies? Too hard to describe in words, and but in the spirit of the legendary U.S. Supreme Court Justice Hugo Black’s approach to defining “pornography”, an immigration officer might say, “I know it when I see it”.

PUBLISHED February 4, 2012 – “IMMIGRATION LAW FORUM”
Copyright © 2012, By Law Offices of Richard Hanus, Chicago, Illinois