Articles Posted in Good faith

27512994306_54f949109a_zDuring November 2015, a couple came to our office seeking legal assistance, after having filed the adjustment of status application on their own, and attending their initial green card interview without legal representation. The couple visited our office seeking legal representation for their second interview before USCIS, also known as the ‘STOKES’ interview. At the conclusion of their initial interview, the couple were given a request for evidence by the immigration officer.  The Request for Evidence asked the couple to prove that the Beneficiary entered the marriage in good faith, and not for the purposes of evading the immigration laws of the United States. The couple responded to the Request for Evidence, providing documents in support of their bona fide marriage, to establish that they did indeed enter the marriage in good faith. In their response, the couple provided 21 items of evidence including photographs together, lease agreements as proof of cohabitation, and other bona fides such as joint utility bills and affidavits from the Petitioner’s parents, attesting to the couple’s bona fide marriage.

Despite producing such evidence, the immigration officer found the documents provided as evidence of cohabitation and marital union unconvincing. Additionally, the immigration officer found that the testimony given during the initial interview was unconvincing. Due to this, the immigration officer scheduled the couple for a second interview to discuss their relationship in more detail. The couple came to our office seeking guidance and representation at this second interview. The second interview is commonly referred to as the ‘STOKES’ interview. At the time of the second interview or ‘STOKES’ interview, the couple is questioned separately by an immigration officer regarding the details surrounding their marriage and relationship. A ‘STOKES’ interview is typically scheduled when an immigration officer suspects that the marriage is a ‘sham marriage’ entered for the purpose of obtaining an immigration benefit. During the ‘STOKES’ interview the immigration officer probes the couple on the intimate details of their relationship. The ‘STOKES’ interview is very taxing on both the Petitioner and Beneficiary. Some ‘STOKES’ interviews have lasted anywhere form 8-10 hours depending on the complexity of the case. Due to this, it is strongly recommended for an attorney to be present with the couple during a ‘STOKES’ interview.

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What is Adjustment of Status?

Adjustment of Status is the process by which a foreign national can change their immigration status from a temporary nonimmigrant to an immigrant (permanent resident), while in the United States. There must be a basis under which a foreign national can apply for adjustment of status. In most cases the foreign national must have an immediate relative who is a U.S. Citizen or have an employer willing to file an immigrant petition on their behalf.

Generally, a foreign national can apply for adjustment of status, if they were inspected by a customs official at a United States port of entry and admitted or paroled into the United States, and meets all requirements to apply for a green card (permanent residence). The Immigration and Nationality Act (INA) allows an eligible foreign national already living in the United States with their U.S. Citizen spouse, to obtain permanent resident status without having to return to their home country to apply for an immigrant visa at a United States consulate abroad. Spouses of U.S. Citizens are eligible for adjustment of status to permanent residence once the US Citizen spouse files a petition on their behalf called the I-130 Petition for Alien Relative. The I-130 Petition for Alien Relative is typically filed at the same time (concurrently) as the I-485 Application to Register Permanent Residence or Adjust Status. For immigration purposes, the intending immigrant (or foreign national) is referred to as the ‘beneficiary’ of the application, while the U.S. Citizen spouse is referred to as the ‘petitioner’ of the I-130 application. The petitioner allows the beneficiary to apply for adjustment of status on the basis of their marital relationship (established with the filing of the I-130 Petition).

In general, most immigrants become eligible for permanent residence once an immigrant petition is filed on their behalf by either a qualifying family relative (I-130 Petition) or through an employer (I-140 Petition) although there are special categories of green card applicants that exist. Unlike distant relatives of U.S. Citizens and alien workers, spouses and immediate relatives of U.S. Citizens are not subject to any visa limitations. This means that they do not need to wait in line to receive permanent residence; an immigrant visa is immediately available to them and there are no quotas. The process of immigrating a foreign spouse through adjustment of status takes approximately 4-6 months depending upon the volume of adjustment of status application being processed by USCIS at the time of filing, and the amount of applications waiting in line for an interview at your local field office.

Spouses of U.S. Citizens residing abroad are not eligible for adjustment of status

For spouses of U.S. Citizens residing abroad, adjustment of status is not an option because the intending immigrant and U.S. Citizen spouse must be living together in the United States in order to apply. Instead, spouses of U.S. Citizens who are living abroad must resort to consular processing, in order to obtain an immigrant visa and permanent residency. Consular processing is also utilized to immigrate a foreign spouse who is ineligible to adjust status, for example in the case where the foreign spouse entered the United States illegally.

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8168034654_b59a79c5ba_bConditional Permanent Residence

If you have received a two-year conditional permanent resident card, based on your marriage to a United States citizen, you are required to remove the conditions on your green card before the expiration date, by filing the Form I-751 Application for Removal of Conditions jointly with your spouse. Many clients often ask, “how do I know if I am a conditional permanent resident?” You will know if you are a conditional permanent resident if your green card contains the abbreviations ‘CR’ under the immigrant ‘category.’ Foreign spouses of US Citizens will be able to locate the abbreviation ‘CR 6’ on their green cards. If this abbreviation applies to you, you must file the I-751 removal of conditions application jointly with your spouse, within the 90-day window immediately before your conditional green card expires. For example, if your two-year green card expires on August 7, 2016, the earliest day to file your removal of conditions application would be May 9, 2016 up to the date of expiration. If you are no longer married to the US Citizen spouse through which you gained conditional permanent residence, you may seek a waiver of the joint filing requirement and file the application alone.

Proper and Timely Filing of the I-751 Removal of Conditions Application

USCIS must receive your properly completed removal of conditions application along with the filing fee, during this 90-day window, otherwise your application will be rejected if you do not have a legitimate reason for filing your application outside the deadline. If you are unsure of the time period in which you must file your I-751 application, you should consult with a licensed immigration attorney early on in the process. If you have decided to file the I-751 application on your own, without the assistance of an attorney, you must read the I-751 Form Instructions VERY CAREFULLY and contact the USCIS National Customer Service Line with questions.

Why do I need to file the removal of conditions application?

USCIS grants two-year conditional green cards to foreign spouses of U.S. Citizens, if the foreign spouse has been married to the US Citizen spouse for less than two years (on the date that they are granted permanent residence). Foreign spouses who have been married to their US Citizen spouse for more than two years (on the date they are granted permanent residence), receive permanent ten-year green cards. Permanent residents, as opposed to conditional permanent residents, do not need to file the I-751 removal of conditions application, because they already have been granted the ten-year green card.

Clients typically ask us; why must I file the removal of conditions application if I have already gone through the rigorous green card process with my spouse?

USCIS requires you to jump yet another hurdle in order to ensure that you have entered your marriage in good faith, and not to gain an immigration benefit. The I-751 therefore, is a fraud prevention mechanism for newly married couples, requiring them to prove that they did not get married to evade the immigration laws of the United States. As part of the removal of conditions application process, the couple must provide documented evidence showing that they have been living together from the date of marriage to the present (joint lease agreement), that the couple has commingled their finances during their marriage (joint income tax returns, joint bank accounts, joint insurances, joint loans, etc.), that the couple shares joint responsibility of assets and liabilities within the household (joint utility bills, joint insurance policies, joint financial responsibilities), and that the couple spends time together on a regular basis (photographs of the couple from date of marriage to present, phone records, e-mails, text-messages, social media correspondence, hotel/flight reservations, evidence of joint trips taken together, affidavits from friends and family members, etc.)

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