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Post image for Fiancée Petition Approved for Petitioner from Florida and Filipina Beneficiary

CASE: I-129F Fiancée Petition and Fiancée Visa
PETITIONER: US Citizen in Gainesville, FL
BENEFICIARY: Filipina
PETITION FILED: March 20, 2013
PETITION APPROVED: July 25, 2013

Our client, a US Citizen Petitioner, met his Filipina fiancée who was living in Taiwan online. Their relationship grew and he met her in person in Taiwan in December 2012. During his visit, he proposed to her. Months after his proposal, he retained our firm to file a fiancée petition.

After retention, we informed our client of the necessary supporting documents to demonstrate the bona fide nature of their relationship. Our client retained our office on February 12, 2013. We helped him and his fiancée draft letters in support of the fiancé petition, gathered supporting documents, and we filed the petition on March 20, 2013.

On July 25, 2013, the I-129F Fiancée petition was approved.

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In the advent of the new CIS standards in allowing marriage-based green card cases for same-sex couples, some of you (and I’m sure a lot more out there) have inquired on which “location” immigration looks to in adjudicating cases and determining the validity of the marriage – the place of marriage, or the couple’s residence.

This CIS memo answers that.

http://1.usa.gov/12EBc2v

This is a common concern because some couples live in states that do not recognize same sex marriages. And so the question is can these people get married in a state that recognizes same sex marriages, continue residing in their usual residence (for example a state that does not administer same sex marriages), and eventually file for immigration benefits on the way towards a green card.

This memo says yes.

You can get married at a different state, one that allows for same sex marriages, go back and reside in your usual state, then apply for the green card.

Hope this clarifies and helps some of you who have this concern. Feel free to email or call me if you have further questions. (216) 573-3712. jp@sarmientoimmigration.com. Thanks!

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Family F2A I-130 Petitions Current for August 2013

by JP Sarmiento on July 16, 2013

Just wanted to let you know that Family F2A I-130 Petitions are current for August 2014.

IF:

  1. You are a permanent resident and have a spouse who is not yet a permanent resident and is in status in the U.S.
  2. You are a permanent resident and your spouse is back home.
  3. You are a permanent resident and have minor children who are not yet permanent residents and are in the U.S. in status. OR
  4. You are a permanent resident and have minor children back home.

… this major development should help in a big way.

This is great news for permanent residents who wish to petition (or have petitioned) a spouse and or minor children. Being able to file for adjustment of status (green card) because priority dates are current is very important news because applicants, even if priority dates retrogress, would be able to file for a WORK PERMIT (and keep extending them) while waiting for their permanent residency. This obviously gives the applicant / beneficiary the ability to work legally, have a valid state ID, and driver’s license.

So what are Family F2A Petitions.

2 TYPES

One, those filed by a green card holder (lawful permanent resident)  to a spouse.

Two, those filed by a green card holder to a minor child.

What does being “current” mean?

Typically, for Family  F2A Petitions, you first file the I-130 petition, then you wait, depending on which country you are from, for priority dates (based on the visa bulletin) to be available. There was a time it was a four year wait, then eventually a two year wait, until now when it just became current. After priority dates become “current”, that’s when immigrant visa processing starts, or, if the beneficiary is here and is eligible (245i or maintained status), someone can apply for adjustment of status (green card).

If priority dates become “current”, then the wait time is over. For those eligible, the petition and adjustment of status application could be filed simultaneously. For those whose beneficiaries are abroad (spouse or minor children), let’s say the “current status” of the F2A category lasts several months, then your spouse or children could immigrate within the next few months hopefully, compared to having to wait 2 years (or even 4 years as it was way back).

So I hope this gives great news to some of you.  I know some beneficiaries have been waiting for their priority dates to be current, or waiting for their spouse to be a US Citizen, so that they may get a work permit, or apply for adjustment of status, or come to the United States, depending on the case. I hope this provides some actionable news, and help some of you to reunite with certain family members sooner.

Feel free to email me back, or call me at (216) 573-3712, if I may be of any help.

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Post image for Stokes Interview: Marriage Immigration Process and Questions

What is a Stokes Interview?

A stokes interview is an interview process for I-130 marriage-based green card petitions where the US citizen spouse and the foreign beneficiary are separately interviewed. In this case the US citizen is usually interviewed first, asked a bunch of questions, then the foreign beneficiary is called next to be asked mostly the same questions, in which the officer would match the answers, and check for discrepancies.

Reasons for Stokes

There is no objective basis why an officer would conduct a Stokes interview as opposed to a simultaneous interview. It’s very subjective.

Not even a marriage that occurs after removal proceedings are initiated would automatically render a Stokes interview. That actually was what I thought before until some of my clients who got married after removal proceedings were initiated were still interviewed simultaneously.

But a few possible reasons that I noticed that resulted in a Stokes interview are as follows:

  1. Age Gap

A big age gap between theUSCitizen petitioner and foreign beneficiary is NOT an automatic cause for denial. No. There are no straightline restrictive rules like that.

But typically the bigger the gap, the more likely that a Stokes interview would be conducted. The more likely that the couple will be separated.

  1. Marital History

Next is marital history for BOTH theUSCitizen spouse and foreign beneficiary.

If the US Citizen spouse had divorced recently, the closer the divorce date is from the current marriage, the more likely a Stokes interview will be conducted.

If theUSCitizen spouse had several divorces in the past (two or more), then a Stokes interview also becomes likelier.

If theUSCitizen spouse had at least a divorce in the past and had a history of petitioning a foreigner (filed an I-130), Stokes is also likely.

If the beneficiary was previously married to a US Citizen and got divorced, especially if a previous I-130 filed for the beneficiary was withdrawn or denied (in which case you again have to prove the bona fide nature of that first marriage), Stokes is likely.

If the beneficiary had several marriages in the past, or if the divorce is very recent, Stokes is also likely.

  1. Living Arrangements

If the couple does not live together, again, this is NOT an automatic cause for denial. Cases can still get approved, depending on the bona fide marriage evidence presented and the reasons for living apart.

BUT, there is very high chance that a Stokes interview will be conducted.

Again, some couples have to live apart for various reasons. School and employment are some of them. These not only have to be explained at the interview upon interrogation, but also presented through evidence, whether through a job offer letter, pay stubs, or school transcripts.

  1. Removal Proceedings

As you know, there is a higher burden when a marriage occurs after removal proceedings are initiated. A bona fide exception letter is needed, plus proof of a bona fide relationship upon submission of the application, and more of those at the interview also.

Though some couples are still interviewed together despite being married after removal proceedings are initiated, there is a bigger chance of separation.

  1. Lack of Income (or Absence of Income) of the US Citizen Spouse

When theUSCitizen petitioner has little or no income, it is also more likely that the officer will interview you separately. It is what it is. Again, these are not clearcut rules, but merely observations we have based on the hundreds of interviews we’ve been too for marriage to US Citizen green card cases.

Conclusion

The preparation you should have for marriage-based green card interviews should always be as if you will be interviewed separately. As I mentioned, there is no clearcut rule on what would enable the officers to separately interview you. Who knows, it could be the officers’ personal preference.

So think of all possible questions that they may ask and discuss it with your spouse. Some details may be taken for granted, but officers vary, and it’s best to be prepared for anything.

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Post image for Marriage After Deportation Immigration Proceedings are Initiated

What is the difference between the I-130 Petition process in cases that are based on marriage to a US Citizen, between one where the marriage occurred before or without deportation proceedings being initiated and one where the marriage occurred after?

For both, there is a burden to show that the marriage is bona fide, but that burden is higher when the marriage occurred after deportation proceedings were initiated. Below is a list of some major differences.

  1. 485 filing

The first difference is on when you can file the I-485 green card application. If you entered legally and are not in removal proceedings, the I-130 and 485 could be filed simultaneously. Thus you can also file the I-765 work permit application together with it.

If you are placed in removal proceedings and the marriage occurred after, it is the I-130 that is filed first. Then you wait until that finally is approved, in the meantime seeking continuances with the Court while the I-130 is pending.

You cannot file a work permit 765 application while the I-130 is pending in a situation where the marriage occurred after deportation proceedings are initiated, because you still could not file the I-485. I-765s in these cases are approvable based on a pending I-485.

Once the I-130 is approved, you then can either seek termination of the case and then file the 485 green card application and 765 work permit application simultaneously with CIS once the case is terminated, or, should you seek adjustment with the Court, file the adjustment of status application with Court and file the work permit application with CIS.

  1. Bona Fide Marriage Exception Letter

As a primer, I-130s are not approvable when the marriage occurs after removal proceedings are initiated BUT they can be if a bona fide marriage exception letter is included plus proof of a bona fide marriage.

This is very important.

I have seen cases where couple would consult after an I-130 denial where an officer denied a seemingly bona fide marriage (some with kids even) simply because that one page letter was not included.

  1. Higher chance of Separation at Interview

There is also a higher chance that the couple would be separated at the interview. InNew York they undergo what’s called the Stokes interview. More questions are typically asked, and the interviews generally are longer. They would ask one person questions in private first, then ask the spouse separately, before checking if the answers match.

  1. More (evidence, time)

There is also “more” of a bunch of stuff.

More evidence is needed, so I ask for more joint documents, a lease, more affidavits, more pictures, more joint bank statements etc.

More interview questions are usually asked. More time is involved because the I-130 and I-485 are not filed simultaneously.

Ultimately though, if the marriage is bona fide, there should not be any reason why these I-130s can’t be approved. But again, it depends on how you prepare for the filing, and on how you prepare for the interview.

That said, it’s very important to have as much evidence as possible, and to be as prepared as possible to answer questions about your relationship.

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If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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Post image for Evidence, Proof, and Bona Fide Marriage Documents for I-130 IR Petitions and Stokes Interviews, Three Unique Pointers

After representing several clients in marriage-based green card cases, we have learned more and more about the various interviewing techniques  and questions from officers all over the country as well as the common evidence documents they request. They are varied, and NOTHING is certain. Interviews could be for over 2 hours, some could last just 10 minutes. They can separate you, or interview you together.

In this post I would like to explain some important aspects about THREE of the common requested documents as it relates to marriage-based I-130 petitions, mostly misconceptions on some of the common evidence.

  1. ID (address)

Some may think an ID is shown simply for identification. But it’s not just for that.

Right of the bat, what most officers ask for are the IDs of the parties, typically the passport of the beneficiary and the driver’s license or state ID of the petitioner.

What do they look for in the driver’s license?

Other than obviously the identity of the petitioner, they look at the address written on the DL. When was the DL issued? Was it issued after the marriage? Is the address then consistent with the address you purport to be living together?

If it was issued before you lived together, is the address consistent with what you have on the G-325A during those months?

  1. Bank Statements (activity)

Some people say once you open a joint bank statement, you should be good in terms of showing bona fide evidence.

That’s wrong.

What is important is MONTHLY ACTIVITY.

What is important also are the dates.

A bank statement opened a week before the interview with $100 on it and no activity at all (no debits no credits) is actually an indication of potential fraud. That may even hurt the case. They want to see not just proof of a joint bank account, they often want to see joint bank statements for as many months as possible, WITH ACTIVITY.

If there is suspicion about the bank statement, the officers usually also ask if each have their own individual bank statements.

Again, there is never an automatic approval or denial with each evidence. Some get approved without a joint bank statement (let’s say one could not be opened due to a lack of social security by the beneficiary… or because the petitioner simply does not have a bank account for some valid reason). But they often ask about this.

Again, some cases get approved even without a joint bank statement if there are other evidence of commingling of finances etc. But a joint bank account with no activity on it is actually worse.

Joint bank statements for multiple months with activity on it – good evidence.

  1. Pictures (variety / people)

What officers look for in pictures are friends, family, and variety. What they often ask the applicants are questions about the event in which the particular picture was taken, and they would ask the petitioner and or the beneficiary the names of the other people in the pictures.

So pictures of only you and your spouse with the same clothing on one event with nobody else in it, even if you have ten pictures, is also a no no. Let’s say you have 15 pictures of you and your spouse at the same park with the same clothes with different poses with nobody else. Not good.

Again, these are just some pointers on certain misconceptions about three of the common requested documents for marriage-based green card interviews. In the end the interview is very subjective. Some officers are more thorough than others, but as to the above common documents, it is important to note these pointers.

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If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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Post image for Terminating Removal Proceedings After I130, 360, and other Petition Approvals for CIS Adjustment

Let’s say you are in removal proceedings due to an overstay. Maybe you have an asylum application with the immigration court, or a cancellation of removal application, and during proceedings you got married to a US Citizen, or are the beneficiary of another I-130 petition, or even an I-360 self-petition.

And let’s say you are not otherwise inadmissible – no criminal record that would disqualify you from permanent residency, never had a false claim to US Citizenship (such as checking that you are a US Citizen on the I-9 form). And if not for removal proceedings (245i may have to apply in certain circumstances), would have been eligible for adjustment of status.

For those that get married in good faith after removal proceedings were initiated, it’s possible for you to be the beneficiary of an I-130 immigrant petition filed by your US Citizen spouse. You have to take note that the burden is higher when the marriage occurred after removal proceedings were commenced, and I-130s in this route are only approved if that higher burden is met.  A bona fide marriage exception letter must be included as well as evidence of your bona fide relationship. It is common for the husband and wife to be separated at I-130 interviews in these cases. Some undergo what’s called the Stokes interview also, which is an intensive interview session where both parties are separated.

But what if the I-130 is approved? Or if there are other petitions approved, which are current, and which makes you eligible for adjustment but for removal proceedings.

Of course there are many factors involved, and the results depend on whether the DHS agrees and of course whether the Immigration Judge agrees too. Usually when the DHS agrees or does not oppose termination, the Immigration Judge will grant termination, but it’s never a certainty. Some Judges would still want the adjustment of status adjudicated in Court, which is fine. Some though would actually be happy to terminate it, as it lightens their docket.

Our firm has done a couple termination cases recently on situations similar to the above (case for asylum or other relief pending, legal entry overstay, married a US Citizen or beneficiary of other types of petition, family or otherwise).

So one thing that could be done is the filing of a Request to Join in a Motion to Terminate with the DHS, in which after they agree, the Joint Motion would then be filed with the Immigration Judge. Proceedings will then be likely terminated for you to apply for adjustment of status with the CIS. Procedurally that is the proper way to do it.

A Motion to Terminate filed with the Immigration Judge with service to the DHS will still yield on the DHS’s response on whether they oppose or not.

And in both instances above, not just the I-130 approval should be attached, but also as much of the I-485 supporting documents (and the 485s itself) to show the applicant’s eligibility.

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If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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Immigrants with Right Skills Ride U.S. Hiring Wave

by JP Sarmiento on February 24, 2013

Post image for Immigrants with Right Skills Ride U.S. Hiring Wave

According to the Labor Department data released to Bloomberg, things are looking good for working immigrants in the U.S. in terms of opportunity. But the same thing can’t be said for those U.S.-born workers due to the growing demand at the low and high ends of the pay scale.

This shows that the lack of a high school diploma or an advance degree seems to be favoring immigrants due to increased demand for jobs with above and below-average wages. Immigrants with the right skills are taking advantage of the increasing demand for workers with specific skills.

More immigrant-related trends and changes in the US will gain more publicity as Congress debates over immigration reforms.

Source: LexNexis.Com

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On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the posting of the final rule for provisional waivers, effective March 4, 2013. This establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States for immigrant visa interviews.

Prior to this announcement, immediate relatives of U.S. Citizens  who were not eligible to adjust status in the United States must leave the U.S. and OBTAIN A WAIVER ABROAD AFTER their immigrant visa interviews,  when they are found inadmissible due to previous unlawful presence in the U.S.

But with this new provision, these applicants can apply for the waiver IN THE UNITED STATES, obtain an approval, and leave for only a short time to get the immigrant visa abroad.

To obtain an approval of the provisional unlawful presence waiver, the applicant must be inadmissible ONLY ON ACCOUNT OF UNLAWFUL PRESENCE, and demonstrate that the denial of the waiver would result in EXTREME HARDSHIP to his or her U.S. Citizen spouse or parent. The USCIS will publish a new form, Form I-601A, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

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20130201_161145Immigrant Intent

Having immigrant intent when you came to the United States on a non-immigrant visa can be a basis for inadmissibility or denial of your green card application. Even if the I-130 petition filed by your husband is approved, meaning the USCIS finds that your marriage and relationship was real and not done for immigration purposes, the I-485 or green card application (adjustment of status) can be denied due to this immigrant intent.

So what are the bases for immigration officers to find immigrant intent?

Actually there are a lot of factors that come into play. Some applicants even say outright at the interview that when they last came to the United States on a specific non-immigrant visa, let’s say a tourist or H-1B visa, or even a visa waiver, that they came with the intent of marrying their spouse and immigrating to the United States. Some applicants had that intention when they came in, get married immediately upon entry, and would thus raise suspicion with the officers.

Some people though may “seem” to have immigrant intent, but actually have none.

Let’s say you came to the U.S. on a non-immigrant visa intending to only visit, study, or work (depending on which type of visa), have a girlfriend or boyfriend, and while here, you and your special friend decide on getting married and you decide to apply for a green card, then that clearly is not immigrant intent. The decision came only while you were here, not before or while entering the United States.

Sample Fact Patterns

Sample 1

  • A and B have known each other over the internet for 1 year.
  • A is from a foreign country and B is from the US.
  • They eventually intend to get married, and A intends to come to the US to get married and immigrate.
  • A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
  • A’s tourist visa gets approved.
  • A goes to the US.
  • A gets married and applies for a green card.
  • Immigrant Intent: Yes.
  • What Should Have Been Done: B could have visited A, got married, came to the US, and filed petition for him on the way to consular processing for the immigrant visa. Or B could have visited A at an point over the past year (the rule is 2, but the fact pattern here says they’ve known for a year), came back to the US, and did a fiance petition on the way to the fiancé visa processing.

Sample 2

  • A and B have known each other over the internet for 1 year.
  • A is from a foreign country and B is from the US.
  • They eventually intend to get married, and A intends to come to the US to get married, but A and B intended to eventually live at A’s home country (foreign country and not the US). So there was an intent to get married, but not an intent for A d to immigrate to the US.
  • A applies for a non-immigrant visa such as a tourist and tells the consul that A’s intention is to just visit.
  • A’s tourist visa gets approved.
  • A buys a round trip ticket.
  • A goes to the US.
  • A gets married and does not apply for a green card immediately.
  • A few weeks later, A changed her mind, enjoys life in the US, and A and B decide to settle in the US. A decides while in theUS to apply for a green card.
  • Officer at interview goes through extensive questioning but A explains to officer that A’s mind changed while here in the U.S., and that A did not have any intent to immigrate when A entered.
  • Immigrant Intent: No

Sample 3

  • A and B have known each other over for over 5 years.
  • A is from a foreign country and B is from the US.
  • A has been to the US several times on a tourist visa and B has been to A’s home country several times.
  • A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
  • A visits B again in theUS with no intention of immigrating.
  • B proposes, and A says yes.
  • A gets married.
  • Officer at interview goes through extensive questioning but A explains to officer that A did not intend to get married, was proposed to while she was here, and A said yes.
  • Immigrant Intent: No.

Sample 4

  • A and B have known each other over for over 5 years.
  • A is from a foreign country and B is from the US.
  • A has been to theUSseveral times on a tourist visa and B has been to A’s home country several times.
  • A and B have a boyfriend / girlfriend relationship, but still did not intend to get married.
  • While B was in A’s home country, B proposes, and A says yes.
  • They get married in A’s home country (foreign country).
  • They intend to live in the US for good.
  • A has a 10 year tourist visa that is still valid.
  • A comes to the US and files for a green card.
  • Immigrant Intent: Yes (But note, if they got married abroad, but came to the US WITHOUT A intending to immigrate, meaning they are still not sure where to settle, but while here in the US they change their mind and decide to settle here, then there is no immigrant intent).
  • What Should Have Been Done: A should have stayed in A’s country while B, after going back to the US, files an I-130 immigrant petition for A, on the way to consular processing.

The 30/60/90 Rule

There is also this 30 / 60 / 90 day rule that the USCIS adopts in adjudicating green card applications based on marriage. This is found through the Department of State’s Foreign Affairs Manual (9 FAM 40.63 n4) when examining events that occur shortly after entry to the USA

30 Day Rule: If you file your green card application within 30 days of entry, there is a presumption of immigrant intent. It’s not an automatic finding and denial, it is just a presumption. It can be rebutted by you and your spouse depending on your real intent and answer to the questions. Let’s say you had no intention to immigrate, but got proposed to or thought of marrying a week after entry, and then you filed for a green card within the 30 day period, then there ultimately should not be a finding of immigrant intent, because there was none.

60 Day Rule: If you file your green card application within 31 to 60 days of entry, there is no presumption, but there is a reasonable suspicion of immigrant intent. Inquiries would still be made as to your intent upon entry, but it is not as strict as the 30 day rule.

90 Day Rule: If you file your green card application 61 days and beyond (not sure how the 90 came in, but that’s the memo), then there is a presumption that you acted in good faith. Officers may still ask though what your intention was upon entry, and if immigrant intent was found then the results could still be a finding of immigrant intent.

What Happens If Immigrant Intent Is Found

If immigrant intent is found, then the I-485 green card application will be denied. Some may issue a Notice of Intent to Deny and allow you file an I-601 waiver. It depends on the office’s policy.

If it is denied, you would then have to re-file the I-485 with an I-601 hardship waiver to waive the grounds for inadmissibility. I-601 hardship waivers are tough. You would have to show that there will be extreme hardship to your U.S. Citizen spouse if 1) you are to be abroad with your spouse in your home country; or if 2) you are to be separated with your spouse, meaning your spouse is in the US and you are abroad.

The I-130 petition will still be approved if you are able show a bona fide marriage, but  it won’t grant you a green card because of the immigrant intent and I-485 denial. An approved I-130 will also not allow you to get a work permit.

If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately. 

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