Law Office of Tanya M. Lee 1.480.559.9529

Posts Tagged ‘immigration’

Often a U.S. Citizen or Legal Permanent Resident lives abroad and wants to sponsor a family member for an immigrant visa or green card. The question: does the sponsor have to live in the U.S. to file the petition for the relative? The answer: maybe.

Section 213A of the Immigration and Naturalization Act of the United States of America requires that in order to sponsor an alien for legal permanent resident status in the United States, the sponsor must be domiciled in the United States.

“Domicile” means the place where a sponsor has his of her principal residence, with the intention to maintain that residence for the foreseeable future.

To prove, establish or reestablish domicile, a sponsor must set up a principal residence in the United States.  This would entail obtaining a residence (house or apartment) and taking up physical residence.  There is no minimum time required to establish residence, but a credible demonstration of an actual residence in the United States is required.

A convincing combination of the following types of action might be considered as an indication of residence:

• Establishing an address in the United States
• Setting up and maintaining bank accounts in the United States
• Transferring funds to the United States
• Making and maintaining investments in the United States
• Seeking employment in the United States
• Applying for a social security number
• Voting in local, state, or federal elections
• Enrolling children in schools
• Paying U.S. income taxes
• Taking steps to relinquish residency in a foreign country

*The domiciliary requirement applies to the petitioner, sponsor and joint sponsor(s)

Domicile is a complex issue and is determined on a case-by-case basis.  The burden of proving domicile lies with the sponsor, who must offer evidence sufficient for the adjudicating officer to make a finding.  A finding regarding domicile is an evidentiary question that will be unique to each applicant, and it is within the delegated authority of the consular officer to make such a determination at his or her professional discretion.

US Citizenship and Immigration Services (USCIS) is highly suspicious of people who try to obtain permanent residence (green card) through marriage. In fact, USCIS has previously stated that in its opinion, over one-third of the marriage-based permanent resident petitions it receives are based on fraudulent marriages. As a result, the government will scrutinize the application and interview the couple with an eye towards rooting out fraudulent marriages, also known as sham marriages.

What is a “Bona Fide” Marriage for Immigration Purposes?

A bona fide marriage, according to the government, is one that was not entered into for the sole purpose of acquiring an immigration benefit. What’s the legal test the government uses to determine if a marriage is “bona fide”? Answer: the couple must show that at the time they got married, their goal was to create a real marital relationship and not to commit immigration fraud.

What happens if USCIS determines the couple committed marriage fraud? The couple risks severe penalties – including, for the foreign national spouse, a  lifetime bar on immigrating the U.S. through any kind of visa petition in the future; potential imprisonment (jail) for up to 5 years; and a possible fine of up to $250,000. The jail time and fine can apply to the U.S. citizen or Legal Permanent Resident spouse as well as the foreign national spouse.

Real Life Examples of Marriage Fraud Cases

Mexican actress Fernando Romero and her American husband  were arrested in April 2010 and charged with marriage fraud for allegedly trying to gain legal residency and a work permit for her by marrying each other. Federal authorities claim the couple never lived together and one month after the 2005 marriage the actress allegedly began dating, and eventually moved in with, a fashion photographer.

A federal grand jury in Norfolk recently indicted 17 individuals on charges connected with, what officials say, was a broad conspiracy scheme to recruit U.S. Navy sailors l to engage in fraudulent marriages to Russian women.

In 2008, Operation “Knot So Fast” resulted in the government’s arrest of more than 80 people alleged to be involved in various marriage fraud conspiracies throughout Florida. Some of the sham marriages were arranged by individuals who would “coach” those committing the fraud on how to make their marriage appear legitimate. They even had wedding dresses on hand, fake cakes, and preset staging for pictures.

One of the largest marriage-scam busts occurred one year after 9/11.  As a result of “Operation Broken Vows,”  in October 2002 107  American women in the Carolinas and an equal number of Middle Eastern men living illegally in the U.S. from Boston to North Carolina were charged with marriage fraud. Six organizers were also arrested, charged with facilitating the payment of $1,000 to $6,000 to the women for their cooperation. The couples often met just before walking into probate court to get married, and went their separate ways as soon as they walked out.

The government’s commitment to rooting out marriage fraud is grounded in security concerns. “Marriage fraud will not be tolerated. It is a direct attack to the national security of the United Sates,” said Kathy Redman, District Director of U.S. CIS in Tampa during Operation Knot so Fast. “The process of detection of marriage fraud begins the moment an application is submitted to our agency and later when a couple comes to our offices for a marriage interview. So beware. The job of our adjudicators is not just to grant or not an immigration benefit. It is also, and most definitely, keeping our country secure.”

In sum, besides being illegal, engaging in immigration marriage fraud is just simply a bad idea. It is difficult to be in a sham marriage and escape discovery from the government during the petition  and interview process.  The punishment includes jail time and hefty fines which usually far exceed any payment that may have been received for the transaction.  A later determination of permanent residence acquired through a prior fraudulent marriage will likely result in the government taking away the foreign national’s green card and/or denying a naturalization petition, which could land the foreign national in deportation proceedings if not jail. So just don’t do it. In upcoming posts, we will discuss what the government looks for as evidence of marriage fraud and what a couple can do to prove that the marriage is bona fide.

I was recently interviewed by Attorney Shimane Smith on his radio show, “Nothing But the Truth.” I fielded questions about the controversy surrounding President Barack Obama’s birth certificate, specifically why under the U.S. Constitution it matters whether he was born in Hawaii or Indonesia. This is a fascinating aspect of nationality law, and I explain the constitutional requirement that a U.S. President be a “natural-born citizen,” not a naturalized citizen or a U.S. citizen born “abroad.” I also discuss how this requirement has relevance to both John McCain and Arnold Schwarzenegger as well.

In the second part of the interview, I talk about options for immigration relief  for victims of domestic violence as well as some of the immigration consequences of criminal conduct, including removal (deportation) for even long-term Permanent Residents (green card holders) for seemingly minor violations or misdemeanors. Please click on the audio file below to hear the interview.

In an upcoming post I will share a second interview where I discuss marriage fraud and tips for a successful green card interview for foreign nationals married to U.S. citizens.

by Carolyn Mason, Contributor

The Diversity Immigrant Visa program is an annual lottery, conducted by the State Department, to distribute applications for 50,000 diversity visas (DV). Winners are randomly selected from on-line entries and there is no fee to enter. There are, however, strict eligibility requirements: entrants must be from countries with low immigration rates to the U.S. (see below), as this is the purpose of the program. Winning the lottery entitles the entrant to apply for an immigrant visa to enter the U.S., which is why the lottery is sometimes called the “Green Card Lottery.”

Entries are now being accepted, and the deadline for entering is November 30, 2009, at 12 noon Eastern Standard Time. Applicants must enter on-line at www.dvlottery.state.gov

Who may enter? Applicants must meet requirements in two categories:

Natives of the qualified countries may enter, as well as their spouses, as long as both native and spouse are on the same entry, are issued visas, and enter the U.S. at the same time. Alternatively, if you are a native of an ineligible country, but neither of your parents is a native of that country or lived there at the time of your birth, you may claim nativity in one of your parents’ countries of birth if that country is eligible.

(2) Entrants must either be a high school graduate or have successfully completed a 12-year course of study including elementary and secondary education, OR have two years of work experience within the past five years in an occupation requiring at least two years of training. GED certificates and correspondence courses will NOT satisfy this requirement. To find out if your job experience qualifies, visit the O*Net Online Database (http://online.onetcenter.org/), click on “Find Occupations,” and then choose a selection in the “Job Family” drop-down box and click on “GO.” The database will display a list of occupations. Click on an occupation title, and then click on the words “Job Zone” at the top of the page. Under the section titled “Job Zone,” look for a job zone number of 4 or 5, and an SVP range of 7.0 or higher.

What countries are eligible?

All countries EXCEPT: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, the United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Hong Kong SAR, Macau SAR, and Taiwan ARE eligible, as well as countries not included in the list above.

You may submit only one entry, and you may complete the process yourself or have someone submit the entry for you. Although no one can guarantee that your entry will be chosen, you can ensure that your forms are completed correctly. Contact The Law Office of Tanya M. Lee, PLLC at 480-559-9529 or 1-888-628-0644 ; tlee@aboutusvisas.com for assistance.

By Carolyn Mason, contributor and Tanya M. Lee, Esq.

By Carol Mason, Contributor