Articles Posted in Spouses and Fiancés

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marriageThe Immigration and Nationality Act (INA), the nation’s primary source of immigration law, allows noncitizens who marry U.S. citizens to obtain lawful permanent residence without numerical limitations. In order to address concerns about marriages whose sole intent is to facilitate immigration benefits, the INA sets restrictions on people who seek lawful permanent residence after less than two years of marriage. A violation of these restrictions can result in a finding of deportability, but the INA allows waivers in some situations. The Board of Immigration Appeals (BIA) recently ruled on a waiver claim in a case involving marriage fraud. Matter of Tima, 26 I&N Dec. 839 (BIA 2016). The ruling offers an extensive summary of this area of immigration law but resulted in the denial of the respondent’s claims.

An individual who obtains lawful permanent resident (LPR) status through marriage to a U.S. citizen is granted “conditional permanent resident” status if, at the time they obtain such status, they have been married for less than two years. 8 U.S.C. § 1186a. Within two years of obtaining conditional status, they must apply to have the conditions removed. The purpose of this two-year conditional period is to give the government time to investigate whether the marriage was solely entered into for immigration purposes.

If the parties are no longer married after two years, that is not automatic evidence of marriage fraud, but it will likely bring additional scrutiny from investigators. If the government concludes that the marriage was a sham, or if the immigrant fails to apply by the two-year deadline, conditional permanent residence is automatically revoked. The immigrant may then be subject to deportation. 8 U.S.C. § 1227(a)(1)(D)(i).

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By ISAF Headquarters Public Affairs Office from Kabul, Afghanistan (110329-A-5634G-004) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsThe U.S. Supreme Court, in an extremely divided opinion, ruled that the federal government did not violate a U.S. citizen’s constitutional rights by denying her husband an immigrant visa and refusing to tell her why. Kerry v. Din, 576 U.S. ___ (2015). Justice Scalia’s plurality opinion was only joined by two other Justices, Chief Justice Roberts and Justice Thomas. Justice Kennedy filed a concurring opinion with Justice Alito, and the remaining justices joined a dissenting opinion written by Justice Breyer. The court ruled that the plaintiff does not have a “constitutional right to live in the United States with her spouse,” Din, slip op. at 1, a conclusion the dissenting justices strongly disputed.

The plaintiff married her husband, an Afghan national, in 2006, and she filed a visa petition for him soon afterwards. U.S. Citizenship and Immigration Services (USCIS) approved the petition, but several months after her husband’s visa interview at the U.S. Embassy in Islamabad, Pakistan, she received notice that the State Department was denying the visa application. It merely cited “terrorist activities” as the reason, stating that it could not tell her anything further. 8 U.S.C. §§ 1182(a)(3)(B), (b)(2)-(3).

The husband worked as a payroll clerk for the government of Afghanistan from 1992 to 2003. The Taliban controlled most of Afghanistan from 1996 to 2001. This might have been the basis for the State Department’s “terrorism” conclusion, although the Taliban is not on the State Department’s list of Foreign Terrorist Organizations. The legal definition of “terrorism” is extremely vague, broad, and circular. Federal immigration law’s definition of “engaging in terrorist activity” includes acts that “afford[] material support” to terrorists. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). See also 18 U.S.C. §§ 2339A, 2339B.

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By Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe U.S. Supreme Court issued a historic ruling in June 2015 that effectively allows same-sex marriage in all 50 states. Obergefell v. Hodges, 576 U.S. ___ (2015). The court held that laws in 14 states banning the recognition of marriages between two people of the same sex violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Obergefell will not have much direct impact in New York and New Jersey, which have allowed same-sex marriage since 2011 and 2013, respectively. The federal government has also formally recognized same-sex marriage since the Supreme Court’s ruling in United States v. Windsor, 570 U.S. ___ (2013). It is not yet clear exactly how Obergefell will affect the U.S. immigration system, except that it will most likely remove the necessity of distinguishing among different states’ laws relating to marriage.

Marriage is considered a state law matter in the U.S., although the federal government takes marital status into account in numerous programs, including immigration benefits. The U.S. Congress enacted the Defense of Marriage Act (DOMA) in 1996, which defined “marriage” exclusively as “a legal union between one man and one woman as husband and wife” for the purposes of federal laws and programs. 1 U.S.C. § 7, 28 U.S.C. § 1738C. The Supreme Court ruled in Windsor that DOMA violated the Due Process Clause of the Fifth Amendment.

After the Windsor decision, the White House directed federal agencies, such as U.S. Citizenship and Immigration Services (USCIS), to treat immigration petitions and applications filed for a same-sex spouse the same as those filed for opposite-sex spouses. This includes immigrant visa petitions filed by U.S. citizens and legal permanent residents on behalf of spouses, as well as derivative nonimmigrant visas, such as H-4 visas for spouses of H-1B specialty workers and F-2 visas for spouses of F-1 students.

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OpenClips [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration law allows U.S. citizens and permanent residents to petition for immigrant visas for family members. Certain family members of U.S. citizens, including spouses, are not subject to any numerical restriction. Relatives of permanent residents fall into various preference categories and may face substantially longer wait periods before obtaining a visa. Once a family member has an immigrant visa, they can begin the process of applying to adjust status to permanent residence. Since marriage to a U.S. citizen is one of the fastest routes to obtaining a green card, immigration authorities are wary of fraud, such as through “sham marriages” between a U.S. citizen and a prospective immigrant. Two recent cases from New Jersey and New York illustrate how federal and state officials investigate and handle these types of cases.

U.S. Citizenship and Immigration Services (USCIS) places a high priority on detecting marriage fraud in immigrant visa petitions and applications for adjustment of status. They may require a substantial amount of evidence establishing that a marriage is genuine, and USCIS inspectors have broad discretion to determine whether a marriage is genuine or not. If an immigrant was married for less than two years at the time their application for permanent residence is approved, they receive “conditional permanent residence.” They may petition to remove the conditions after two years by showing that they are still married, that they are divorced or widowed, or that they were subjected to domestic abuse or other extreme hardship. A “bad” marriage is not necessarily a fraudulent one. The key question is whether the couple entered into the marriage primarily for the immigration benefits.

The head of a New Jersey immigration consulting firm was sentenced to two years in prison in March 2015, after pleading guilty to three charges arising from various acts of immigration and marriage fraud. United States v. Poku, No. 1:14-cr-00492, judgment (D.N.J., Mar. 30, 2015). The defendant was accused of creating sham marriages for numerous individuals, mostly from Ghana, to help them obtain immigrant visas and green cards. According to the government, he hired people to pose as spouses in USCIS interviews, forged documents demonstrating cohabitation in the U.S., and forged Ghanaian government documents. He pleaded guilty to one count of illegally inducing people to come to the U.S. without legal documentation for commercial advantage. 8 U.S.C. §§ 1324(a)(1)(A)(iv), (a)(1)(B)(1). He also pleaded guilty to two counts of money laundering and wire fraud.

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linux-154544_640.pngU.S. Citizenship and Immigration Services (USCIS) issued a final rule in February 2015 extending employment authorization to dependent spouses of certain people who are in the U.S. on H-1B work visas. These dependent spouses are able to come to the U.S. with an H-4 nonimmigrant visa, but are excluded from employment. Completing this rule is part of President Obama’s immigration executive actions, which he announced in November 2014, with the goal of reducing financial burdens on guest workers and their families who are on a track to legal U.S. residence.

Federal immigration law provides H-1B nonimmigrant visas for workers in “speciality occupations” and fashion models. 8 U.S.C. § 1101(a)(15)(H)(i)(B). Spouses and dependent children of H-1B visa holders are permitted to come to the U.S. with an H-4 visa, which has the same duration as the H-1B visa. 8 C.F.R. § 214.2(h)(9)(iv). Prior to the new final rule from USCIS, they were not permitted to work unless they obtained their own nonimmigrant visa that included work authorization. This resulted in H-1B workers who brought their spouses and children to the U.S. being limited to one income.

The immigration executive action announced by the White House in November includes directives to USCIS and other agencies to “modernize, improve and clarify immigrant and nonimmigrant programs,” with the goal of “grow[ing] our economy and creat[ing] jobs.” One of the directives, according to a summary provided by USCIS, is to issue a final rule extending work authorization to H-4 visa holders whose H-1B visa holder spouses “are on the path to lawful permanent resident status.”
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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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US_Embassy_in_Kabul_on_July_4th_2010.jpgConsular officers, who work for the U.S. Department of State (DOS), have a considerable amount of discretion regarding issuance of immigrant visas to relatives of U.S. citizens. If a consular officer refuses to issue a visa, the doctrine of “consular nonreviewability” has generally held that neither the immigrant nor the relative may challenge that decision in court. The U.S. Supreme Court has agreed to hear a case in which a U.S. citizen is challenging a consular officer’s decision, claiming that the officer infringed on her constitutional rights. Kerry v. Din, No. 13-1402.

The Supreme Court has held that immigration to the United States is not a right but a “privilege granted by the sovereign United States Government.” United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Consular officers interview prospective immigrants prior to issuing a visa, in part to determine whether they are inadmissible to the United States under 8 U.S.C. § 1182. One of the questions presented to the Supreme Court in Din is whether a petitioner may compel the government to present specific statutory and evidentiary support for a consular officer’s decision.

In the Din case, a U.S. citizen petitioned for an immigrant visa for her husband, a national of Afghanistan. He had worked for the Afghan Ministry of Social Welfare as a payroll clerk from about 1992 to 2003. This included the time period from 1996 to 2001 when the Taliban controlled most of the country. USCIS approved the petition, and DOS scheduled the husband for an interview at the U.S. Embassy in Islamabad, Pakistan. The interview took place on September 9, 2008. After about nine months, the petitioner received a notice from DOS that the visa had been denied, and that the husband was not subject to a waiver of ineligibility. The Embassy informed them that the visa was denied due to “terrorist activities,” 8 U.S.C. § 1182(a)(3)(B), and that it could not provide any additional information, id. at §§ 1182(b)(2) – (3).
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file1001282444781.jpgCongress first enacted the controversial Defense of Marriage Act, or “DOMA,” in 1996. The law stated, in part, that the federal government would only recognize marriages between a man and a woman. While state law governs most aspects of family law, DOMA has had a profound effect on a wide range of federal rights and benefits, including the right of a U.S. citizen or permanent resident to petition on behalf of a spouse for an immigrant visa. Even if a marriage was legal at the state level, DOMA prevented the federal government from approving immigrant visa petitions for same-sex couples. A U.S. Supreme Court decision in June 2013, however, struck down the relevant section of DOMA, opening the doors to as many as 25,000 binational same-sex couples who previously had no access to immigration benefits. For one couple in New York City, the impact was immediate and profound, stopping a deportation proceeding in its tracks.

Section 3 of DOMA changed the definitions of “marriage” and “spouse” in all federal statutes and regulations to specifically refer to opposite-sex marriage. Pub. L. No. 104-199 § 3, 110 Stat. 2419, codified at 1 U.S.C. § 7. This affected countless federal programs, including immigrant visa petitions for spouses of U.S. citizens. Federal immigration law does not limit the number of immigrant visas issued to U.S. citizens’ spouses annually, but DOMA excluded people who were legally married, under state law, to U.S. citizens of the same sex. This left some same-sex spouses facing deportation because of a lack of legal options.
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Wedding cake of a same sex marriageAn immigration judge in Houston, Texas granted a reprieve to a Costa Rican man facing deportation based on the man’s marriage to a United States citizen. What makes this case unusual is that the man, David Gonzalez, is in a same-sex marriage. The judge’s decision is reportedly the first of its kind in Texas, and is part of a growing trend nationwide of immigration judges dismissing or deferring deportations based on same-sex marriage to a U.S. citizen. Despite the peace of mind Gonzalez must feel knowing he will not be deported, he still does not qualify for any particular immigration benefits, since federal law does not officially recognize same-sex marriages. This puts him in a sort of “twilight zone,” unable even to obtain employment authorization.

Gonzalez says that he arrived in the U.S. in 2000, coming from Costa Rica on a tourist visa in order to get away from an abusive former partner. He met Mario Ramirez, a U.S. citizen, about six years later. They got married in California in 2008 during the brief window when the state allowed same-sex marriage. They moved to the Houston area not long after that.

The government sought to deport Gonzalez for lacking legal immigration status, since he overstayed his tourist visa. The federal Defense of Marriage Act (DOMA), passed by Congress and signed by President Bill Clinton in 1996, prevented Gonzalez and Ramirez from obtaining an immigrant visa and green card for Gonzalez as the spouse of a U.S. citizen. DOMA prevents the federal government and its agencies from recognizing the validity of same-sex marriages. The decision by the Obama administration not to defend DOMA allows judges and other officials some leeway, but the law still prohibits nearly all benefits to same-sex couples that opposite-sex couples receive.

Now that Gonzalez has a reprieve, he still cannot obtain any affirmative immigration benefits. His marriage to Ramirez does not allow him to petition for an immigrant visa, and he cannot obtain a green card. In the case of opposite-sex couples, the spouse of a U.S. citizen can petition for an immigrant visa. U.S. citizen spouses are not subject to an annual numerical limit, so the waiting time is typically very short, as in weeks instead of years in many cases. While the immigrant spouse petitions for a visa, the citizen spouse can apply to adjust the immigrant’s status to that of a legal permanent resident, commonly known as a green card. Unless Gonzalez finds a different means of legal immigration, he may remain in the United States but cannot enjoy most of the benefits of legal immigration status. Perhaps most importantly, he has no way of obtaining work authorization.
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930216_48376490_03252012.jpgThe Violence Against Women Act (VAWA), the federal law that provides broad protections for abused spouses, children, and other family members, has been in the spotlight recently. Democrats in the United States Senate have brought the bill up for reauthorization in the midst of a series of debates over legal issues pertaining to women. The law provides important protections for immigrants who are the victims of domestic violence. It offers a procedure for obtaining legal status even without the help of a citizen or permanent resident relative, if that relative has been abusive.

VAWA was first enacted in 1994. The law was drafted by then-Senator Joseph Biden’s office in collaboration with multiple advocacy organizations. VAWA authorized $1.6 billion for efforts to investigate and prosecute violent crimes committed against women. It imposed an automatic obligation on people convicted of such violent crimes to pay restitution, and it allowed civil claims by domestic violence victims against perpetrators in situations where prosecutors did not pursue criminal cases. The bill requires reauthorization again in 2012.

Congress has reauthorized the law twice, in 2000 and 2005, each time with a wide margin of support. The 2000 reauthorization included a provision creating the Office on Violence Against Women within the U.S. Department of Justice. The Office assists in the development of policy regarding domestic violence, stalking, and sexual assault, and it administers grants provided by the government for programs related to these areas.

VAWA provides immigration benefits to spouses, children, and parents of U.S. citizens and legal permanent residents who are victims of domestic abuse committed by the citizen or permanent resident. Applying for an immigrant visa or green card normally requires the involvement of the citizen or permanent resident relative, so VAWA allows individuals to apply for immigration benefits without the abuser’s knowledge or consent. A spouse who has been the victim of domestic violence may apply for themselves and unmarried children under the age of 21. A parent of a child who has been the victim of abuse may apply for themselves and that child. An abused child under the age of 21, who has suffered abuse from a parent, may apply for themselves. The law does not specify the gender of an abused spouse or child.
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