selected issues on citizenship and immigration law: winning a marriage case thursday january 20,...

Selected Issues on Citizenship and Immigration Law:

Winning a Marriage CaseThursday January 20, 20111:30 p.m. – 3:00 p.m. EST

Patricia WonderInstructor, CUNY School of Professional Studies

Partner, Johnson Wonder PLLC

Our Panel of Presenters

Victoria A. Donoghue, Esq.

Immigration Attorney, Nachman & Associates

Noemi Masliah, Esq.

Partner, Masliah & Soloway,

PC

www.sps.cuny.edu

www.cuny.edu/citizenshipnow

Immigration Law Studies Advanced Graduate Certificate Program

Courses

• Introduction to Immigration Law

• Business Immigration Law

• Family-Based Immigration Law

• Proceedings in Immigration Court

• Naturalization and Citizenship

The goal of Citizenship Now! events is to help eligible individuals prepare their forms N-400, Application for Naturalization. Most events are held on Saturdays.

CUNY Citizenship Now! Events

CUNY Citizenship Now! centers offer free immigration services to all members of the community- CUNY students and non-students.

CUNY Citizenship Now! Immigration Centers

The Corps consists of volunteers who provide free naturalization application

assistance at Citizenship Now! Events in New York City.

Volunteer with the CUNY/NYC Citizenship Now! Corps

Complete a registration form atwww.cuny.edu/citizenshipnow/volunteer

Victoria A. Donoghue, Esq.Immigration Attorney, Nachman & Associates

Marriage-Based Permanent Residence (Green Cards)

• Spouses of United State Citizens (USC’s) are immediately eligible to immigrate or adjust their status without retrogression

• Lawful Permanent Residents (LPR’s) can apply for spouses but these cases are subject to visa quota allocations and retrogression (backlog)

• Visa quota allocations are announced monthly by the US Department of State at http://travel.state.gov/visa/bulletin/bulletin

• For January 2011, the category for spouse of LPR’s, F2A, is currently backlogged to 01-08-2008; meaning an adjustment of status application can be filed for the spouse of an LPR whose I-130 was filed before that date

Victoria A. Donoghue, Esq.

Legal Standard in a Marriage Case

• Must be bona fide marriage entered into by the parties not solely for immigration purposes

• Must continue to be married for approval

• Approval possible even if parties living apart and marriage is no longer viable as long as entered into marriage not solely for immigration purposes

• Legal standards have been established by case law

Victoria A. Donoghue, Esq.

Poll Question

Natalie’s H-1B employment was terminated and she could not find another job. She had

no viable immigration options. Her U.S. citizen boyfriend had asked her to marry

him on previous occasions. She had declined in the past by now she agrees.

They get married at City Hall and move in together. Is this a bona fide marriage for

immigration purposes?

Partner, Masliah & Soloway, PC

Noemi Masliah, Esq.

Spousal Petition Form I-130

• Filed with the US Citizenship and Immigration Services (USCIS) by USC/LPR petitioner to classify spouse as an immigrant with:

– Copy of marriage certificate– Copy of proof of petitioner’s

USC or LPR status– Copy of termination of any

prior marriages– Petitioner’s and beneficiary’s

G-325A biographic information and photo

Noemi Masliah, Esq.

Spousal Petition Form I-130

• Approval of petition does not confer any benefit or status to beneficiary; to acquire status, must apply for adjustment of status or immigrate via consular processing

• Form I-130 can be found at www.uscis.gov. The filing fee is $420.

Noemi Masliah, Esq.

Application for Adjustment of Status Form I-485

• Filed with the USCIS by beneficiary to adjust status to lawful permanent resident

• Must be spouse of USC or of LPR with a current priority date

• Must be in the United States after having been inspected and admitted or paroled (INA Sec. 245(a)) or eligible under INA Sec. 245(i)

• If spouse of a USC, need not have maintained lawful status prior to filing I-485

• If spouse of a LPR, must have maintained lawful status prior to filing I-485; meaning having maintained valid non-immigrant status and not worked without authorization

Noemi Masliah, Esq.

• Form I-485 may be found at www.uscis.gov. The filing fee is $1070. which includes the biometric fee

• Filed with copies of– Proof of admission or parole (e.g.I-94)– Proof of maintenance of status– All passports– Birth certificate, with translation– G-325A biographic information– Medical report– Photos– Affidavit of Support (I-864) by

petitioner and, if necessary, by joint sponsor

– Federal tax returns, if available

Application for Adjustment of Status Form I-485

Noemi Masliah, Esq.

Affidavit of Support Form I-864

• Required in all marriage cases from petitioner

• Petitioning sponsor must show income of at least 125% of the poverty line as published by USCIS on Form I-864P

• Minimum income requirements based on household size assets can be considered if income alone is insufficient

Noemi Masliah, Esq.

Affidavit of Support Form I-864

Noemi Masliah, Esq.

• Joint sponsors permitted in order to meet income requirement (LPR or USC domiciled in United States and over 18)

• Must be supported with evidence of income:

– tax returns and W-2s– employment letter and recent

pay stubs– bank statements and proof of

assets• Form I-864 and Form I-864P may be

found at www.uscis.gov

Poll Question

Sam, a U.S. citizen is an artist. He married Sophia, a foreign national who is also an

artist. Last year, Sam earned $15,300 and Sophia earned $16,208. They have no

children. Sam’s wealthy parents recently gave Sam their NYC apartment (worth

$500,000). Is there a way to prepare an affidavit of support that will satisfy USCIS

requirements?

Preparing for the Adjustment of Status Interview

Victoria A. Donoghue, Esq.

• Interview of the couple always required by the USCIS

• Scheduled by USCIS at local office based on state of residence, usually 4-6 months after filing

• Couple should meet with attorney to review case, to review what to expect at the interview and to prepare documentation to bring to interview

Preparing for the Adjustment of Status Interview

• Documents to bring to interview:

– All originals of copies previously submitted

– Evidence to establish bona fides of marriage

Victoria A. Donoghue, Esq.

Supporting Evidence of Bona Fides of Marriage

• Photos from courtship and wedding

• Lease or mortgage in both names and joint utility bills

• Medical benefit letter showing medical benefits for husband and wife

• Bank statements from joint accounts

• Evidence of joint credit cards• Cancelled checks showing shared

household expenses• Birth certificates of children born

of the marriage• Affidavits from persons knowing

the couple

Victoria A. Donoghue, Esq.

The Interview - What To Expect

• USCIS officer will place couple under oath to tell the truth

• Couple will be questioned together and asked to show documents

• Questions concerning basic eligibility for adjustment of status, criminal issues, prior marriages, and entry into the United States

Victoria A. Donoghue, Esq.

The Interview - What To Expect

• Questions involving deeper inspection into the couple’s relationship (e.g. Where was your first date? What is her mother’s name?)

• Specific questions about the documents submitted (Why didn’t you file taxes jointly?)

• Anything about the petitioner/beneficiary on a social networking site is fair game during the interview

Victoria A. Donoghue, Esq.

Stokes Interview

• If the USCIS officer is not satisfied with the responses or the documents submitted at the initial interview, a “Stokes” interview may be scheduled

• It is a recorded interview where the couple is separated and questioned

• An attorney is permitted to be present during the interview of both spouses

Victoria A. Donoghue, Esq.

Stokes Interview

• Questions tend to focus on history of the relationship, living arrangements and daily interactions (Do you have your house keys and may I see them?)

• USCIS officer may approve I-130 petition if satisfied with bona fides of the marriage; if not satisfied, may ask petitioner to withdraw petition or may deny the petition

Victoria A. Donoghue, Esq.

Poll QuestionMaria, a foreign national, and Paul, a U.S. citizen, are a married couple that filed an I-130 and I-485.

At the USCIS interview, the officer asked if they had any evidence to establish the bona fides of the

marriage. The couple hadn’t brought anything with them. The officer asked Paul to provide the names

of Maria’s parents; he couldn’t remember. She asked Maria about the date of the marriage; Maria gave a date that did not match the petition. What is the officer likely to do in these circumstances?

Type of Permanent Residence If Case Is Approved

• Type of Permanent Residence - based on length of marriage at time of approval

– Conditional Residence if married < 2 yrs– Permanent Residence if married >2 yrs

• If conditional residence, residence is valid for only two years and must file an I-751 petition to remove the condition within a 90 day window before expiration

Noemi Masliah, Esq.

I-751 Petition to Remove Conditions

• Filed jointly with spouse• May seek waiver of joint

filing requirement due to:– Death of spouse, or– Termination of marriage

through divorce/annulment (will have to show that the marriage was bona fide when entered), or

– Battered or subjected to extreme cruelty, or

– Extreme hardship to foreign national

Noemi Masliah, Esq.

I-751 Petition to Remove Conditions• Couple should start saving

documents evidencing the bona fides of the marriage after the case is initially approved (bank statements, photos, contract for jointly purchased car)

• Once the I-751 and supporting documents are received, USCIS will send a receipt notice extending the conditional residence for an additional year

• May or may not have an interview

• Upon approval, condition is removed and FN is deemed to be a legal permanent resident as of date of initial grant

Noemi Masliah, Esq.

Questions and Answers

Q&A: Our Panel of Presenters

Patricia WonderInstructor,

CUNY School of Professional Studies

andPartner, Johnson

Wonder PLLC

Victoria A. Donoghue, Esq.

Immigration Attorney, Nachman & Associates

Noemi Masliah, Esq .

Partner, Masliah & Soloway,

PC

Acknowledgements

• Paul RussoDirector of Online Programs CUNY School of Professional Studies

• Kelley KawanoInstructional Technology FellowCUNY School of Professional Studies

• Antonia LevyInstructional Technology FellowCUNY School of Professional Studies

• Allan WernickDirectorCUNY Citizenship Now!

• A. Sofia CarreñoCommunications Coordinator CUNY Citizenship Now!

• David SturnioloCommunications AssistantCUNY Citizenship Now!

• Gabriel Espinal Communications AssistantCUNY Citizenship Now!

For further questions regarding the information presented during this

webinar please contact

Patricia Wonder

patriciawonder@johnsonwonder.com

Selected Issues on Citizenship and Immigration Law:

Adjustment of StatusThursday February 17, 20111:30 p.m. – 3:00 p.m. EST