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Immigration Marriage Fraud

Marriage Fraud is a big issue with USCIS. Last week I came across an article that surprised me. It said that U.S. immigration officers were ”snooping” on  social networking sites such as Facebook, MySpace Twitter and a host of others to check marriage fraud. While I am against marriage fraud I began to wonder if the same sources used by investigators could be equally useful in demonstrating bona fide martial relationships.

Social networking sites in so many ways have changed the way people meet in general. And these sites have even helped spark many a romantic relationship that has lead to marriage.

Marriage Fraud is Rare

While there are no doubt a few unscrupulous individuals they prey upon the lonely and desperate with immigration / marriage fraud as their goal, the fact is that many have found their true love and soul mate on the Internet. In fact, the overwhelming majority of immigration based marriages are bona fide marriages based on traditional values of love and affection.

So when it comes to marriages between foreign nationals and U.S. citizens (or permanent residents), it is becoming more and more common to find couples that have, at least initially, met and developed their relationships via social networking sites.

Do Not Engage In Marriage Fraud

According to immigration law there is absolutely nothing wrong with one marrying knowing that they will be obtaining an immigration benefit—so long as it is not the sole or primary purpose of the marriage.

With this in mind, prospective applicants for marriage based lawful permanent residency (i.e., green cards), should be aware that their record of communication between each other on Facebook and Twitter, etc. may actually present them with a new opportunity to better document and demonstrate how their relationship developed.

In fact, much of what is communicated between individuals on social networking sites is tantamount to public record and is available for nearly all to see–including DHS and U.S. Embassy interviewers and investigators. That is why it is such a great investigate tool. But it should also be used to aid in demonstrating a true, bona fide marriage and not only to uncover marriage fraud,

In cases where applicants have scant evidence of their valid relationship, they should take the time and effort to obtain additional documentary evidence  including offering evidence of their social network communications, emails, text messages, etc., in addition to the traditionally accepted evidence in order to avoid allegations of marriage fraud

Immigration Attorney Referral

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While it is true that there is a great deal of ambiguity surrounding the meaning of the term ‘Good Moral Character’ in the context of obtaining U.S. Citizenship by Naturalization, there are some crimes and bad acts that may prevent one from obtaining U.S. citizenship.

It is important to understand that there two areas of consideration that the agency takes into account when making a determination in granting/denying naturalization.

1)  Statutory bars the finding of good moral character where the applicant:

•  has committed and been convicted of one or more crimes involving moral turpitude

•  has committed and been convicted of 2 or more offenses for which the total sentence imposed was 5 years or more

•  has committed and been convicted of any controlled substance law, except for a single offense of simple possession of 30 grams or less of marijuana

•  has been confined to a penal institution during the statutory period, as a result of a conviction, for an aggregate period of 180 days or more

•  has committed and been convicted of two or more gambling offenses

•  is or has earned his or her principal income from illegal gambling

•  is or has been involved in prostitution or commercialized vice

•  is or has been involved in smuggling illegal aliens into the United States

•  is or has been a habitual drunkard

•  is practicing or has practiced polygamy

•  has willfully failed or refused to support dependents

•  has given false testimony, under oath, in order to receive a benefit under the Immigration and Nationality Act.

•  Also, persons convicted of murder at any time or convicted of aggravated felonies on or after Nov. 29, 1990, cannot establish good moral character and are thus permanently barred from naturalization.

Consult an Immigration Attorney

If you have committed crimes or acts that at may fall within the statutory bar category you should consult with an immigration attorney before filing. Certain offenses not only make you ineligible for naturalization but could actually trigger removal (deportation) proceedings against you.

Another reason you should consult an attorney is that some offenses may not be as damaging as they may seem to be. For example, a single DUI conviction is typically not considered to be a crime involving moral turpitude unless there are aggravating factors such as bodily injury and/or a DUI with a suspended driver license. –But each case is different and based on the particular charges and disposition so you must be certain before proceeding with your application.


2)  Catch All Provision:

In addition, there is a so called “catch all” provision that provides wide discretionary authority to the USCIS examiner in looking to other bad acts that may have been committed or admitted to during the “statutory period”.  And, in certain circumstances, USCIS may look into negative factors that occurred beyond the statutory period.

Warning: Owing to the potential serious consequences that may result from filing an application for naturalization, it is highly recommended that you consult with an immigration attorney before proceeding.

Immigration Attorney Referral

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When Marcus came to the United States from Brazil, he was 2 years old. His father was hired by an internationally known company which any American teenager would readily recognize, and his family had the opportunity to live and work in the United States.  During the years in which his father was employed in the United States, Marcus led a normal life growing up and attending school with the hopes of being a professional baseball player.

Unfortunately, all of this changed when he received a college baseball scholarship. After visiting the college and completing his application, he was notified he could not attend college or accept the scholarship without a social security number. It was then he learned his parents had simply never told him he was not in the United States legally.Due to legislation recently filed in both houses of Congress, Marcus may now be able to remain in the United States, and even realize his personal goal of being a baseball player. The DREAM Act, introduced by Senators Richard Durbin of Illinois and Richard Lugar of Indiana, and Representatives  Howard Berman of California, Lincoln Diaz-Balart of Florida and Lucille Roybal-Allard of California  provides undocumented young people with a path to citizenship. Eligibility requires two years in higher education or military service and a demonstration of good moral character. Ultimately, citizenship may be attained.

In the Senate, the act (S. 729)  known as the Development, Relief, and Education for Alien Minors Act, was introduced on March 26, 2009, The House version, called the American Dream Act (H.R. 1751) was introduced the same day. Both acts attempt to provide relief to help those who came to the U.S. at age 15 years or younger and were in the U.S. at least five years before the date of the bill’s enactment. Conditional permanent residence would be granted upon acceptance to college, graduation from a U.S. high school, or being awarded a GED. This status would be for a limited period of time, and at the end of this period, lawful permanent residence would be granted if one has served in the U.S. armed forces for at least two years, or graduated from a two-year college or certain vocational colleges, or studied for at least two years toward a B.A. or higher degree.

Conditional residency is for six years, but extendable upon showing good cause. In some cases, the U.S. Department of Homeland Security could waive the requirements altogether for compelling reasons, and if removal of the student would result in exceptional and extremely unusual hardship to the student or the student’s spouse, parent or child.

The intent of the Act has merit. Most people would be in favor of a program to help young people go to school, or to have an experience or even a career in the military. But there are problems with the legislation as well, beginning with the fact that no matter how much empathy we as a nation have for young people who, through no fault of their own, were brought to America illegally,the fact is that  providing benefits to any illegal immigrant has to be reconciled in some way with a basic principle of our republic, and that is we are a nation of laws and not of men. Just because Congress has the ability to pass this legislation, does not mean it will be accepted in the hearts and minds of the American public. Senators and Representatives need to explain how this law comports with the Rule of Law. What is it about this legislation that will make Americans believe it is the right thing to do?

At the same time, we have to recognize the reason this legislation is necessary. Basically, parents of these children made a decision for whatever reason, to live in the United States without regard to the immigration laws of the United States. Justification can be found for those who are literally refugees from persecution in their home countries for political, religious or social reasons. But it is a stretch to say that immigration benefits should be provided to the children of those who came to the U.S. to improve their economic condition. That is why I think Adey Fisseha, interim federal policy director of NILC misses the mark when she says, “To be competitive in today’s global economy, American depends on an educated and skilled population.” And, “The DREAM Act realizes the benefit of having a more multicultural, multilingual U.S. workforce.” The justification for the DREAM Act should not be based on economics, although that is an easy argument to make in this economic environment. Instead, we need to recognize that the “cat is out of the bag” with immigration. We have immigration laws which have not been enforced over the years and as a result, we now find ourselves looking for a way to deal with the parents who made the decision to be here illegally, leaving innocent children in a tragic situation.

Once we come to the point where we realize that our nation has allowed the problem to happen, I believe we are compelled to support the DREAM Act from a humanitarian view. I work with someone who frequently says, “It is not a perfect world.” This is not a perfect law, but it addresses a real problem and over the long run, it can have a positive impact on the lives of thousands of young people and our society as a whole.

Immigration Attorney Referral

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This naturalization guide was written to provide the reader with the basic eligibility requirements to apply for naturalization.

Naturalization Guide – Good Moral Character Requirement

All applicants for naturalization must be of good moral character. Certain crimes and bad acts, even though not resulting in a criminal conviction, may make one ineligible to naturalize for lack of good moral character. In addition some crimes or acts may be sufficient cause to deny the application and place the applicant in proceedings to be removed from the United States. It is highly advisable to contact an immigration attorney if you have committed (even if not arrested) or been convicted any crime or bad act before filing for naturalization.  More Information About Good Moral Character

Age Requirement

In order to apply for naturalization an applicant must first be a lawfully admitted permanent resident of the United States of at least 18 years of age.

 

Naturalization Guide Explains The Continual Residence Requirement

Applicants must have resided continuously within the United States at least 5 years after having been lawfully admitted for permanent residence or at least 3 years if applicant’s permanent residence was obtained by marriage to a U.S. citizen. (See INA §316.5) However, this does not mean that an applicant must have actually remained in the United States for the entire five or three year period of residence. (see Physical Presence Test and Breaks in Residence below).

Physical Presence Requirement /Test

In order to naturalize an applicant must demonstrate that s/he has, subsequent to lawful admission as a permanent resident, resided has been physically present in the United States at least 30 of the past 60 months or 18 of the past 36 months where the applicant’s permanent residence was obtained by marriage to a U.S. citizen. (See INA § 316(a))

Effect of Breaks in Continuous Residence of Less than Six Months Absence from the United States

No break in continuity of residence for naturalization purposes.

Effect of Breaks in Continuous Residence of More than Six Months Absence from the United States – but less than one year

Only presumptively breaks the continuity of residence for naturalization purposes. This means that an applicant may rebut the presumption with evidence that s/he did not intend to abandon their residence for naturalization purposes. However, if the applicant is unable to overcome the presumption, s/he must wait 4 years and a day to apply for naturalization, or 2 years and a day if they obtained lawful permanent resident status by marriage to a U.S. citizen. (See 8 CFR 316.5(c)(1)(ii))

Effect of Breaks in Continuous Residence of More than One Year Absence from the United States

If a applicant remains outside the United States for more than one year they will break the continuity of residence for naturalization purposes and must wait 4 years and a day to apply for naturalization, or 2 years and a day if they obtained permanent residence by marriage to a U.S. Citizen. (See 8 CFR 316.5(c)(1)(ii)) More details available in the Naturalization Guide.

Immigration Attorney Referral

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Dual citizenship or dual nationality refers to being a citizen of two countries simultaneously. We are often asked whether or not the United States will allow dual citizenship with foreign nationals of other countries. We have to start with the fact that each country has its own citizenship laws based on their particular policies. Sometimes dual citizenship occurs by choice; other times, it occurs automatically by operation of law.

To give you an example, US citizen parents may have a child born in a foreign country. That child may be a citizen of both countries. Foreign citizenship may also be acquired by marriage, or once a person becomes a naturalized citizen of the US, the person may not lose citizenship in the home country. What is important to remember is that acquiring another citizenship does not necessarily mean that there will be a loss of US citizenship.

For example, one who is automatically granted another citizenship does not risk losing US citizenship. But, if  foreign citizenship is acquired by application, there is a risk. The key is that if the application is made voluntarily, by free choice, with the intent to give up US citizenship, then there is a chance that US citizenship will be lost.

How is intent shown? It is shown by a person’s statements or conduct. Our experience is that the US government does not encourage dual citizenship because of various potential problems, such as claims of other countries on dual citizenship holders may create a conflict with US law. Allegiance is owed to both countries, however, and the laws of both countries have to be obeyed.

In order to determine if your country permits dual citizenship, contact your home country’s consulate or embassy.

Immigration Attorney Referral

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Divorces can have far reaching effects on naturalization, and one possible effect concerns nonpayment of child support.

Most often this problem surfaces when a permanent resident files  citizenship without the assistance of an immigration attorney. After all,  how complicated can it be to fill out the government form, right? Unfortunately, it is not just about filling in the form. Among other considerations, there is the matter of demonstrating “good moral character.” While there is no statutory or regulatory definition, the term generally means character that measures up to the standards of average citizens of the community in which the applicant resides.

Vague enough? Well, there are some helpful guidelines.

An applicant for naturalization who willfully fails or refuses to support dependents will be found to lack good moral character, unless there are extenuating circumstances. Willful failure may include someone who has the ability to pay child support, but simply refuses to do so, or someone who fails to provide support over a long period of time.

However, it is possible to establish extenuating circumstances affecting one’s ability to pay child support  where the applicant is out of work, or has made a reasonable effort to pay.

If an applicant is delinquent in his or her child support payments prior to filing an application or has been denied on this basis and has filed an N-336 Request for a Hearing, every effort should be made to bring payment current during the statutory period, or at least demonstrate a history of past payments or a commitment to bring the payments up to date.

It may be a stretch in most cases, but an additional step is to present an affidavit from a former spouse in order to establish good moral character.

Immigration Attorney Referral

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