Adjustment of Status (AOS) based on marriage to a U.S. citizen or lawful permanent resident is one of the most common ways immigrants obtain a green card in the United States. While the process may seem straightforward, many applicants face unexpected challenges that can delay or jeopardize their case. As an experienced immigration lawyer, I have helped numerous couples successfully navigate this process. In this article, I will discuss the most common challenges and provide practical advice on how to overcome them.

Proving a Bona Fide Marriage

One of the most significant hurdles in an Adjustment of Status application is proving that the marriage is genuine. The U.S. Citizenship and Immigration Services (USCIS) is highly vigilant in detecting fraudulent marriages and will scrutinize the couple’s relationship to ensure it is legitimate.

Common Issues:

• Lack of joint documents (e.g., bank statements, lease agreements, tax returns)
• Inconsistent answers during the interview
• Short courtship before marriage
• Different living arrangements
• Children born during the marriage from different partners (not spouses)

How to Overcome This Challenge:

• Gather and submit strong evidence such as joint bank accounts, utility bills, lease or mortgage documents, insurance policies, and photographs.
• Be prepared for the USCIS interview by reviewing personal details with your spouse.
• Consider preparing a detailed timeline of your relationship.
• If you live separately due to work or financial reasons, provide explanations with supporting evidence. While separate living is not per se a bar to the approval, often USCIS officers will find that separate living coupled with lack of commingling of the financials to be a strong sign of lack of bona fide marriage.

The Board of Immigration Appeals (BIA) has addressed the issue of cohabitation in the context of determining the bona fides of a marriage. In Matter of McKee, 17 I&N Dec. 332 (BIA 1980), the BIA held that a visa petition should not be denied solely because the spouses are not living together and the marriage is no longer viable. The key factor is the intent of the parties at the time of the marriage—specifically, whether they intended to establish a life together. The BIA emphasized that conduct after the marriage is relevant only to the extent that it sheds light on the parties’ intent when they entered into the marriage. Similarly, in Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), the BIA found that the fact that the parties slept in separate rooms and had not engaged in sexual relations was insignificant, given the evidence showing that they intended a valid and lasting marital relationship. The BIA concluded that the reasons for the marriage appeared to be sound and that there was no evidence suggesting it was a sham.

These cases illustrate that cohabitation is not an absolute requirement for establishing a bona fide marriage in immigration proceedings. The central question remains whether the couple intended to establish a life together at the time of their marriage. Keep in mind, that even if I 130 is approved by USCIS, but your case is in court, an Immigration judge may again revisit the issue of bona fide marriage! Matter of Kagumbas, 28 I&N Dec. 400 (BIA 2021): The BIA held that immigration judges have the authority to assess the bona fides of a marriage when adjudicating adjustment of status applications, even if an I-130 petition has been approved by USCIS. This case highlights the necessity for applicants to provide convincing evidence of a genuine marital relationship during proceedings.

Public Charge Rule and Financial Requirements

USCIS requires that the U.S. citizen or green card holder spouse demonstrate the ability to financially support the immigrant spouse. If the sponsoring spouse does not meet the income requirement, the application may be denied.

Common Issues:

• The sponsoring spouse does not meet the minimum income requirement (125% of the Federal Poverty Guidelines).
• Missing or outdated financial documents.
• Sponsor is unemployed or has an irregular income.
• Sponsor received 1099 income or is self-employed.

How to Overcome This Challenge:

• If the petitioner’s income is insufficient, find a joint sponsor who meets the income requirements.
• Submit recent tax returns, W-2s, pay stubs, and an employment verification letter.
• If self-employed, include business tax returns and bank statements.
• Include evidence of assets (e.g., savings, investments, or property) to meet the financial requirement.

Prior Immigration Violations

If the foreign spouse has violated immigration laws in the past or has a criminal history, they may face additional scrutiny during the Adjustment of Status process.

Common Issues:

• Entry without inspection.
• Previous marriages in the USA that resulted in denials, withdrawals, or failure to remove conditions.
• Previous removal orders or deportation proceedings.
• Criminal convictions or arrests.
• Accusations of immigration fraud/misrepresentation.
• Claim of U.S. citizenship.

How to Overcome This Challenge:

Often, self-filers do not realize that they are subject to inadmissibility grounds and fail to address it in their filings. Often, an immigration inadmissibility waiver may be available. As a rule of thumb, if you are aware of inadmissibility, you should address it as soon as possible, preferably by submitting the waiver application together with your adjustment package. At times, however, a waiver is not available, and an unsuspected filer will submit his or her application for adjustment of status, just to later find themselves in a forever-inadmissible situation and removal proceedings.

Delays in Processing and USCIS Backlogs

Adjustment of Status applications can take several months to years, depending on the backlog at USCIS and the complexity of the case.

Common Issues:

• Long wait times for biometrics and interview appointments.
• Delays in receiving work and travel permits.
• Requests for Evidence (RFE) causing further delays.

How to Overcome This Challenge:

• Track your case status online and stay updated on USCIS processing times.
• Submit a complete and well-prepared application to avoid RFEs.
• Expedite your work permit (EAD) if you have financial hardship.
• If your case is unreasonably delayed, consider contacting your local congressional representative or filing a writ of mandamus lawsuit.

Marriage-Based Green Card Interview Anxiety

Many couples find the USCIS interview process stressful, especially if they are worried about forgetting details or being separated for a fraud interview.

Common Issues:

• Nervousness leading to inconsistent answers.
• Lack of preparation.
• Inexperience with government interviews.

How to Overcome This Challenge:

• Practice answering common interview questions together.
• Stay calm and honest—if you do not know an answer, say so rather than guessing.
• Bring an immigration attorney to the interview for additional support.
• Review your submitted documents to ensure consistency with your answers.

Conditional Green Card and Future Removal of Conditions

If you have been married for less than two years at the time of receiving your green card, you will be issued a conditional green card valid for two years. You must file Form I-751, Petition to Remove Conditions on Residence, to obtain a permanent green card.

Common Issues:

• Divorce before filing I-751, or during its pendency.
• Insufficient evidence of a continued bona fide marriage.
• Late filing of I-751.

How to Overcome This Challenge:

• If you divorce, file I-751 with a waiver, providing evidence that the marriage was entered into in good faith.
• Continue collecting evidence of your married life even after getting the green card.
• File the I-751 petition on time to avoid loss of status.

A long-term delay in adjudication of I-751 can be effectively addressed with N-400 filing. In this case, however, you will have to prepare to defend I-751 at the time of the N-400 interview. N-400, or application for naturalization (citizenship), cannot be approved prior to I-751 being decided.

Red Flags for USCIS During the Green Card Based on Marriage Process

Each immigration case is reviewed based on its unique circumstances, but judicial precedents and USCIS policies help define the criteria used to assess the legitimacy of a marriage. Below is a breakdown of how immigration authorities evaluate evidence of a bona fide marriage.

Courts have consistently ruled that the primary question in assessing a marriage’s authenticity is whether the spouses genuinely intended to establish a life together at the time of marriage. If this intent is present, the marriage is not automatically fraudulent, even if other factors—such as immigration benefits—were considered. Courts have clarified that the mere existence of an additional incentive (such as obtaining lawful status) does not make a marriage fraudulent if the couple truly intended to build a life together.

When evaluating whether a marriage is genuine, immigration officers and courts rely on objective evidence, rather than subjective opinions about what constitutes an ideal marriage. Courts have acknowledged that a marriage can be valid even if:

• The couple does not live together.
• The marriage is not consummated.
• The couple has different cultural, religious, or personal expectations about their relationship.

For example, in Matter of Peterson, 12 I&N Dec. 663 (BIA 1968), the Board of Immigration Appeals (BIA) ruled that a marriage was legitimate even though the couple did not engage in intimate relations. Similarly, Matter of McKee, 17 I&N Dec. 332 (BIA 1980), established that cohabitation is not a requirement for a bona fide marriage.

Inconsistencies and Their Impact

One of the most critical factors in marriage-based immigration cases is consistency in statements and evidence. Courts have found that inconsistent or contradictory responses given during the fact-finding process can be used as a basis to determine that a marriage was fraudulent. Couples undergoing USCIS interviews should ensure that all details provided in their application align with their testimony.

Indicators of Fraudulent Marriages According to USCIS

USCIS officers assess marriages for potential fraud based on certain red flags, which include:

• Extreme nervousness during interviews
• Overcompensating or exaggerated interactions
• Arriving late to the interview
• One spouse answering for the other or attorney prompting responses
• Lack of eye contact between spouses
• Evasive or vague answers to questions
• Attorney or third-party interference during questioning
• Submission of an excessive number of documents without strong evidence
• Suspicious or staged photographs
• Prior fraudulent activity by the petition preparer
• Marriage occurring shortly after the foreign spouse’s entry into the U.S.
• Unusual marital history (e.g., multiple prior marriages to foreign nationals)
• Children born during the marriage from a different partner
• Divorce followed immediately by remarriage
• Significant age difference between spouses
• Cultural or linguistic barriers between spouses

(USCIS guidelines on fraud indicators can be found in USCIS Policy Manual, Volume 8, Part G.)

Marriage Fraud and Grounds for Removal

Under INA § 237(a)(1)(G)(i), if a foreign national gains lawful status through marriage but the marriage ends within two years, they may face removal proceedings unless they can prove that the marriage was not entered into for the purpose of evading immigration laws.

• If a marriage ends early, there is a presumption of fraud, which the immigrant must overcome with evidence.
• If a person fails to fulfill a marriage agreement, they may be found removable under INA § 237(a)(1)(G)(ii).

Additionally, under INA § 212(a)(6)(C)(i), an individual who misrepresents facts to obtain immigration benefits—including through marriage fraud—can be found inadmissible and permanently barred from receiving a visa.

If USCIS finds that a conditional resident (CR) refused to consummate the marriage, this can be used as evidence that the individual never intended to enter a genuine marriage. However, if the U.S. citizen spouse fails to fulfill the marriage agreement, the foreign national may not necessarily be at fault.

Penalties for Engaging in a Sham Marriage

Marriage fraud carries serious immigration and criminal penalties. Under INA § 204(c), individuals found to have entered into a fraudulent marriage to obtain immigration benefits will be barred from future sponsorship and immigrant visa eligibility. This means they cannot obtain a green card or be sponsored for one in the future.

Furthermore, INA § 275(c) states that any person who knowingly enters into a sham marriage to evade immigration laws can face:

• Up to 5 years in prison
• Fines of up to $250,000
• Possible removal and permanent inadmissibility

Criminal convictions for marriage fraud can lead to additional charges, such as crimes involving moral turpitude (CIMT) or document fraud.

Even if a person is not criminally prosecuted, a finding of fraud will bar them from ever obtaining a U.S. visa or green card.

Relief from Marriage Fraud Findings

In some cases, individuals found inadmissible due to marriage fraud may be eligible for relief under INA § 237(a)(1)(H). This waiver allows a person to avoid removal if they were found inadmissible due to misrepresentation or fraud, provided they meet the following conditions:

• They are the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident (LPR).
• They are otherwise admissible to the United States.
• Their immigration status was obtained through misrepresentation rather than another form of ineligibility.

Importantly, this waiver is not available for individuals who engaged in a sham marriage solely for immigration benefits. Additionally, VAWA self-petitioners (victims of abuse by U.S. citizen or LPR spouses) may be eligible for certain waivers that do not require a qualifying relative.

Even if a waiver is available, marriage fraud findings can severely harm an applicant’s credibility, making it difficult to obtain other forms of immigration relief. Some forms of relief, even though still available in courts may be denied to lack of good moral character if a party is accused of marriage fraud, for example: Cancellation of Removal, U visa, T visa.

Marriage fraud is considered a serious violation of U.S. immigration law, and once an individual is found to have engaged in a fraudulent marriage, it becomes extremely difficult—if not impossible—to obtain legal status. Applicants should be prepared to present strong, credible evidence of their bona fide marriage and avoid inconsistencies that could raise suspicion.

If you are facing challenges in proving your marriage’s legitimacy or have concerns about an immigration interview, consulting with an experienced immigration attorney is highly recommended.

For professional assistance with marriage-based green cards, contact my office at www.shautsova.com for a consultation.

The post Common Challenges During Adjustment Of Status Based On Marriage Process appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

K-1 visa is a tool allowing a US citizen to invite his perspective spouse to the United States for up to three months in order to determine whether or not the couple should get married. K-1 visa is not a bad instrument if the couple is not sure if they would like to get married or not. If the parties have already decided that they are going to get married, a marriage in a foreign country and a family-based petition might be a better option, unless the situation involves aging out children. See: Who Is A Child For Immigration Purposes and Marriage Petition: Be Prepared For Bringing Your Spouse To The United States.

Please note, that with the new change, K- visas are available for the same-sex couples as well. See: BIA: DOMA Can No Longer Be Used Against Same-Sex Couples

However, K-1 via has some disadvantages. The main disadvantage is that the holder of the K-1 visa must either marry the person who invited them into the US within 90 days upon admission or leave the country. The consequences of not fulfilling this condition are drastic: if the marriage does not occur, the non -citizen spouse will be prohibited from adjusting his/her status ever, ineligible for most forms of relief, and sufficiently, will be wasting his/her time in the US without hope of getting immigration papers.

This remains true, even if the non-citizen spouse later found to be a victim of domestic violence. Le v. Att’y Gen, 10/3/13. In Le v. Attorney General, the non-citizen fiancé entered the US to marry a man who, upon arrival, she discovered was already married. Le moved to a different state and married a different guy, who, unfortunately, was abusive to her. Le suffered an assault from his hand, and filed for and was granted a VAWA self -petition. She later applied for adjustment of status based on the VAWA self-petition which was denied. The Fifth Circuit court of appeals upheld the denial, stating that where the non-citizen who entered the country failed to marry the K-1 petitioner, the non- citizen is barred from adjusting her status.

It is truly a drastic consequence of the overstaying a K-1 visa, as very often K-1 entrants are misinformed about it, and they believe if they letter marry a nonpetitioning US citizen, they will be able to gain lawful status in the US, as they entered the country legally. As such, the advice of an experienced Immigration attorney is necessary in all the cases where the K-1 route did not work out as planned.

The post Adjustment Of Status For K-1 Visa Entrants appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

New York Immigration lawyer Alena Shautsova helps immigrants to apply for the marriage-based immigration benefits in the United States.

One of the most common types of Immigration cases every practitioner encounters is an application for an immigration status based on marriage. These applications can be sorted out to two main groups: applications based on marriage based to a U.S. citizen (a USC) and applications based to a marriage to a green card holder (or lawful permanent resident, LPR).

First, a USC or an LPR who just got married and would like to sponsor their spouse, need to have a plan of action based on where their spouse is located: in the United States, or overseas.

If their spouse is in the United States, the couple should consult with an attorney to see if the non-resident spouse can adjust or obtain permanent resident status without leaving the United States. Usually, if the non-resident spouse entered the country legally, he/she will be able to receive a green card without leaving the US if he/she married a US citizen. If the other spouse is an LPR, the non-resident might have to wait for the spouse to become a USC, or will have to leave the country and get an Immigrant waiver and an Immigrant visa. However, in every case of somebody who has resided in the US for a long time and now decided to leave the country to “fix” the Immigration status, such a person needs to consult with an Immigration attorney before leaving. A simple consultation may say years of separation and grief.

If one who is in the US is married to a USC, then, in most cases, a couple will be able to resolve all Immigration issues without having to be separated. In this case, a couple will have to file an adjustment package: forms I-130, I -130A, I-1485, I-765, I- 131, and I-864, and supporting documents (“the adjustment package”). The couple will have to pay applicable fees as well. It is essential to use the current editions of the forms and submit correct fees. To find the forms, one would have to visit www.uscis.gov. The forms are free, but there are filing fees. The filing fees are changing often, and it is important to submit correct fees to avoid rejections of the filing. If non-citizen/resident has some immigration issues, such as potential charges of inadmissibility related to fraud, misrepresentation, criminal convictions, the filing package will have to include a waiver as well. This is in case a person is otherwise adjustable. For example, a person entered the US under someone else’s name; he/she was inspected and admitted. A person committed misrepresentation/fraud at the time of entry and is inadmissible based on that fact. But now, a person is married to a US citizen who will experience extreme hardship in case of a separation. The applicant hence can file a waiver together with the adjustment package.

Now every immigration issue can be resolved with a waiver: the claim of US citizenship, aggravated felonies, many controlled substance-related convictions may not be resolved with a waiver.

In addition, one has to keep in mind recently changing regulations related to the public charge inadmissibility. Since February 24, 2020, a person may have to submit form I 944 together with the adjustment package. But the laws here are changing daily and one has to check uscis.gov website before submitting the package to make sure if he/she needs to include I 944 in the adjustment package.

If a person has previous removal/deportation order, or is now in deportation/removal proceedings, the procedure may be different. A person may have to either file for additional waivers or file a motion to reopen before he/she can submit the adjustment package. In general, once a person has been placed in removal proceedings, it will be Immigration court and not USCIS that will have jurisdiction over one’s adjustment of status application. Note, that USCIS has jurisdiction over I 130 submission, even when a person is in removal proceedings.

If one married to a USC or a green card holder and is now located outside the US, the US-based spouse will have to start the process by filing an I-130 form with applicable documents.

Then, the US-based spouse will have to continue the process, by working with the NVC and consulate. The spouse who is overseas will be able to apply and receive an Immigrant visa first, and upon arrival to the US, he/she will be issued an actual “green card.”

Whether the non-citizen received green card overseas or in the United States, if the marriage to a US citizen is less than two years old at the time of the immigrant visa application (adjustment of status), the non-citizen will get only a temporary or conditional permanent residency. The condition will have to be removed for the immigrating spouse to be able to get a permanent resident card and qualify for naturalization (citizenship).

If one decided to handle the process him/herself, he/she should first review the forms and instructions and visit the NVC website that explains the steps for those whose spouses are overseas.

If the marriage is less than two years old at the time a person receives an immigrant visa or adjustment of status, a person will have only conditional residency and will have to prepare to apply for removal of the condition within the 90 days before the second anniversary of the conditional residency. In certain situations, this time restrictions can be lifted or excused.

If marriage results in divorce, or if there is an abuse during the marriage, the immigrant may be able to qualify for self-petition and/or file for removal of conditions based on a waiver of joint filing.

If you need help with marriage-related Immigration benefits, please contact us to reserve a confidential appointment by calling 917-885-2261.

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Author: New York Family Immigration Attorney Alena Shautsova

Priority dates in immigration play vital role: when priority date is current, a person who had a petition filed for them can adjust their status or file for an Immigrant visa. In some categories, people wait for years or even decades for a priority date to become “current”.

In a certain situation, an aged-out child can recapture a priority date due to a petition that was filed a long time ago.

Consider this example: Pedro, a green card holder, sponsored his wife Maria and their son Antonio. Pedro filed for Maria and Antonio one petition: because he was only a green card holder he was able to list Antonio and Maria on the same petition. After about three years of waiting, the priority date for the petition became current, but Antonio now is well over 21 and cannot be his mother’s dependent. Antonio would like to come to live with his dad in the US: the wait time for adult unmarried children now is about 8 years… But here is the trick: Pedro can file for Antonio, and ask the government to recapture (keep) the first priority date!

This is what the law says:

8 CFR 204.2(a)(4) …”A child accompanying or following to join a principal alien under section 203(a)(2) of the Act may be included in the principal alien’s second preference visa petition. The child will be accorded second preference classification and the same priority date as the principal alien. However, if the child reaches the age of twenty-one prior to the issuance of a visa to the principal alien parent, a separate petition will be required. In such a case, the original priority date will be retained if the subsequent petition is filed by the same petitioner. Such retention of priority date will be accorded only to a son or daughter previously eligible as a derivative beneficiary under a second preference spousal petition.”

Note: the prior I-130 should not be terminated or revoked. 8 CFR § 204.2(h).

It is not possible to recapture priority dates in every case: for example, when a son of an LPR marries, then the whole petition process becomes a nullity: a green card holder cannot sponsor a married son. But in some situations, the law does help to save the old date. It is especially helpful to sons/daughter of US citizens. For example, Galina sponsored her unmarried under 21 years old son. However, when the son was 20 years old, he got married: now he is automatically transferred to the F3 category, but he can still keep his first priority date!

If you believe you may benefit from the old petition, call us to book a consultation at 917-885-2261.

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You are a US citizen; you have met a love of your life, you guys got married and started sharing your lives. Unfortunately, your spouse is “undocumented”. Soon you realized that without “legal papers” in the US, you guys could not apply for a mortgage, share health insurance or even file a proper tax return. In most cases, the ‘undocumented” portion of the problem can be fixed.

Legal Entry

The first step in determining if you will be able to help your spouse is to figure out if your spouse entered the US “legally” or were inspected and admitted or paroled. If a spouse entered with a visa or on a visa waiver program, it is perfect. Hopefully, you guys still have a record of that legal entry. If not, often it is possible to restore it, but as practice shows, for that, a spouse will likely have to show at least a copy of the admission stamp in his/her passport.

Interestingly, the admission into the US has to be only “procedural.” That is why at times and places it is possible to argue that a person was legally admitted when he/she was “waived in” at the border, or used a false identity to enter the US.

In some jurisdictions, a grant of TPS is considered admission.

Parole is a whole different story. Legally, it is distinguished from admission. But for “fixing” one’s status based on a marriage to a US citizen, parole will also do. An individual who traveled outside the US and came back using parole can adjust. For example, a person who was granted TPS or is in asylum pending status may ask for advance parole to travel. Sometimes, it is possible to ask for advance parole even if you have an order of deportation/removal. There is also something called “parole in place” which is widely used by family members of military personnel. Parole in place is when a person “paroled” into the US without leaving the country.

When you have a legal entry, even if you overstayed your visa by ten years or more, and do not have other issues, you can get a green card based on a marriage/petition by your US citizen spouse. The “unlawful presence” will be forgiven, as well as unauthorized employment.

No Legal Entry

If your spouse cannot show legal entry, then he/she will either have to qualify for a 245(i) exception or apply for a waiver. Your spouse will not be able to get a green card without leaving the US. If unlawful presence is the only issue, your undocumented spouse may qualify for an I 601A waiver. If the waiver is approved, your spouse will travel to his/her home country and return with an Immigrant visa.

Criminal convictions

Another common issue on the way to a green card would be criminal charges/ convictions. In many cases, it is possible to obtain a waiver if the chargers make a person inadmissible. See 212(h) waiver video.

Prior Immigration History

Perhaps, the hardest are cases where your spouse had a prior immigration history: an order of deportation/removal, or grant of voluntary departure, or at times, re-entry after deportation/removal. Sometimes, there will be an old allegation of marriage fraud or a claim of US citizenship. Those are the hardest cases, and in each case, a couple would have to see an attorney prior to attempting to file anything. Sometimes, it is possible to reopen an old case; sometimes, it is possible to file for multiple waivers, or argue that certain grounds of inadmissibility do not apply based on facts and/or law at the applicable time.

If you are looking for solutions for your spouse, call us to book an appointment at 917-885-2261.

The post How To Help Your Spouse To Get A US Green Card appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

An RFE or request for more evidence is a document issued on a yellow or pink paper that many applicants for adjustment of status meet with a great distress. First, I should state here that if you receive an RFE, do not panic. Look at it as an opportunity to supplement the record and present clarifications to the previously presented documents, rather than an alarm that your case will be denied. In most cases, if you do present requested documents, the case will not be denied. It is a whole different story what to do if you do not have the documents requested. So, let’s talk about most common RFEs in most common cases of adjustment of status, adjustment based on marriage to a US citizen.

RFE stating that petitioner’s income is below 125% of poverty guidelines.

In order for a family member, or a spouse to be sponsored into the US, a petitioner or the US citizen has to demonstrate that he/she possess enough income so that the immigrant will not become a public charge. The law establishes the guidelines for the income (form I 864P), and the petitioner executes an affidavit of support, form I 864, and must attach at least most recent federal income tax return. Now, the easiest way to meet the threshold is to demonstrate that your W2 income is higher than the bottom line income pursuant to I 864p form. If the income is not sufficient, a petitioner may use the income of the household members or a joint sponsor’s income. Also, petitioner’s assets may be taken into consideration. Surprisingly, the most RFEs come when petitioner’s income, in fact, meets and exceeds the poverty guidelines? Why? I believe it is due to USCIS’ mistakes. USCIS has been repeatedly questioned about this issue, and every time its representatives deny mistakes on their part, but then the fact is that many attorneys who work on marriage based cases will say the same thing: they submitted all the supporting documents showing sufficient income, and still received and RFE. It means, that sometimes RFEs come by mistake, and do not really threaten your case, all you need to do is to resubmit already submitted documents.

RFE asking for proof of legal entry or inspection and admission

I would say that this a most undesirable RFE. Often, an attorney already knows that “entry” determination will be an issue. So, why would the case would be filed in the first place, you ask, if the lawyer knows that an applicant did not have a visa at the time of entry? It is because there are exceptions established by the law and litigation to the hard evidence of legal entry such as I 94 card or a stamp in your passport. An exception may come from the fact that an adjustment of status applicant was “waived in” at the border or because an applicant is filing under a grandfathering exception or maybe applicant was paroled… Nevertheless, in most cases, an attorney would heave a theory under which he/she believes an applicant is admissible (or at least should have such a theory), and such an RFE is an indication that he/she may face a little hardship in proving his/her theory.

An RFE asking to provide translated birth certificates or judgments of divorce from previous marriage(s)

This RFE should be easy to answer. There is no official language in the United States, however, all documents that are sent to USCIS must be accompanied by an English translation. This translation does not need to “certified” and in fact, may even be performed by a friend who would supply a certification that he/she possess sufficient knowledge of English and _____ language and the translation is accurate. There are no requirements for a notarized translation or an apostile either. The issue may come from an inability to obtain a copy of the birth certificate or certificate/judgment of divorce. USCIS allows for substitution of records regarding the birth certificate, but not the documents regarding the divorce(s). In fact, if an applicant (or a petitioner) has been married and divorced multiple times, he/she has to submit certificates/judgment of divorce for each previous marriage. Also, do not forget: if at the time you were applying for a visa you stated you were married, at the time of the adjustment of status based on a marriage to a US citizen ( a new marriage), you have to produce a certificate of divorce. One may not simply disregard a marriage in their home country. It has to be legally terminated before he/she can enter into a new marriage.

If you have more questions about the topic or need assistance with your case, please call 917-885-2261 or email at office@shautsova.com .

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When somebody enters into a marriage, they usually hope that the union would last forever and spouses would respect each another, and they would live happily –ever- after… Some marriages last for a long time, some forever, and some for days or hours. United States Immigration laws require that a non-citizen who is looking to “fix” his/her Immigration status would show not only the fact of the marriage, but also would present proof that the marriage is bona fide, or not the one for Immigration purposes.

Sometimes, a US citizen is willing to help his/her non-citizen spouse to stay in the US: it is a natural desire of a spouse to have a family, live together and hence, the citizen is sponsoring the non-citizen… Sometimes, the marriage turns out to be a far cry from a happy-ever-after equivalent, and the non-citizen has to face a harsh reality: he/she has to fight U.S. Immigration system on their own.

What options, if any, are out there for the non-citizen spouses or partners of the U.S. citizens?

There are several options but only for those who got legally married. If the couple never got legally married, the only option that would be out there for the non-citizen, is a U visa, if he/she became a victim of domestic violence. There may be an option of a cancellation of removal, but the non-citizen would need to have U.S. citizen or lawful permanent resident qualifying relatives.

1. Option No.1 VAWA self -petition: a US citizen is refusing to go for an interview, or file the initial documents at all, and the non-citizen spouse can demonstrate that he/she is a battered spouse.

2. Option No. 2: an I-751 waiver based on cruel treatment by the US citizen spouse. This option may be available to those whose U.S. citizen spouse did submit an I 130 petition, but later decided not to cooperate and abused the non-citizen.

3. Option No. 3: VAWA cancellation of removal. To qualify for this discretionary relief, an applicant is required to demonstrate: (i) battery or extreme cruelty by a spouse who is a United States citizen; (ii) a continuous period of physical presence; (iii) good moral character; (iv) not having an aggravated felony conviction and not being inadmissible or deportable for certain specified reasons prescribed by statute (though, an agency waiver may apply); and (v) extreme hardship following removal. Id. § 1229b(b)(2)(A).

Option No. 3 is very similar to VAWA self-petition but can be used by those who are in removal proceedings, who would not qualify for an adjustment of status in certain situations, and arguably, option No.3 does not require showing of good faith marriage (required for I 360 petition).

U.S. Immigration laws are extremely complicated and are constantly changing. It is best that a non-citizen would consult with an Immigration attorney to avoid mistakes that would be impossible to correct.

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An I-130 form is a U.S. Immigration document that needs to be filed in order for a U.S. citizen or a permanent resident to sponsor a family member. This form is necessary for a husband to sponsor wife, for a brother to sponsor a brother and for a parent to sponsor a child.

Usually, the form has to be filed within the United States. The actual filing address varies and based on the filer’s residency and other forms that are filed together with the I-130. For example, during the adjustment of status, one would file I-485 and accompanying forms together with the I-130 form.

There are limited exceptions when the U.S. government allows for the filing to be done overseas with the USCIS office abroad or a consulate. Specifically, if a petitioner is in the U.S. military, her petition can be filed with an overseas consulate. The USCIS International Operations Division has recently granted blanket authorization for consular posts to accept and adjudicate Forms I-130, Petition for Alien Relative, from certain active duty U.S. military personnel (see 9 FAM 504.2-4(A)(4), FAM updated 15 September 2015).

Those military members who are on active duty, can continue to file I-130 petitions with local international USCIS offices if they reside in the same country as that office. Now, the Department of State will accept and adjudicate an I-130 petition filed by an active-duty member of the U.S. military stationed overseas in a country without a USCIS presence, without having to demonstrate exceptional circumstances. In such cases, the petitioner does not need to seek advance permission of USCIS before filing the petition. The petitioner must be considered on “active duty” and must work on a military base. As such, individuals working on temporary orders or working at U.S. embassies or at civilian institutions will not qualify for the blanket authorization.

It should be noted that consular officers at posts in countries without a local USCIS office are only authorized to adjudicate “clearly approvable” cases (see 9 FAM 504.2-4(a)). If the petition is not clearly approvable, the consular officer, who lacks the authority to deny the petition, will forward it and the supporting documents to the appropriate USCIS office with jurisdiction over that location (See 9 FAM 504.2-4(B)(1)(d)). Further, consular officers may only adjudicate petitions if the petitioner and the beneficiary meet the specific physical presence and residence requirements (See 9 FAM 504.2-4(B)(1)):

a. Physical Presence and Residence Requirements: You may only adjudicate the above petitions if:

(1) In General: You may only adjudicate the above petitions (consistent with additional requirement imposed below) is the petitioner and the beneficiary meet specific physical presence and residence requirements.

• Physical Presence:
• • The petitioner and the beneficiary are physically present in the district.
  • The beneficiary is able to remain in the country for the time it normally takes to process the visa.
• Residence:
• • Petitioner:
  • • The petitioner must be a resident of the consular district.
    • A widow(er) of a U.S. citizen self-petitioning under Form I-360 must be a resident of the consular district.
  • Proof: You must require appropriate evidence that the petitioner has permission to reside in the consular district, or if he/she is member of the U.S. military stationed in the country, a copy of the petitioner’s orders.
  • Beneficiary: The beneficiary need not be a resident of the consular district.

As such, the new rule should save a lot of time and speed up the family reunification process because now, military personnel stationed in countries without USCIS offices may file I -130s with consulates for their spouses, children and parents.

*According to FAM, Exception circumstances include:

• Exceptional Circumstances:  The following are examples of the types of exceptional circumstances where consular officers should request exceptional authorization from USCIS to accept I-130 immediate relative petitions:
• U.S. Military deployment or transfer: A U.S. service member overseas, assigned to non-military bases or on temporary duty orders, becomes aware of a new deployment or transfer with very little notice. This should be an exception to the regular relocation process for most service members.
• Medical emergencies:  A petitioner or beneficiary is facing an urgent medical emergency that requires immediate travel.  This includes if the petitioner or beneficiary is pregnant and delaying travel may create a medical risk or extreme hardship for the mother or child.
• Threats to personal safety:  A petitioner or beneficiary is facing an imminent threat to personal safety.
• Cases close to aging out:  A beneficiary is within a few months of aging out of eligibility.
• Cases where the petitioner has recently naturalized:  The petitioner and family have traveled for the immigrant visa interview but the petitioner has naturalized and the family member(s) require a new, stand-alone petition.
• Adoption of a child:  A petitioner who has adopted a child locally and has an imminent need to depart the country. This exception should only be considered if the child has been in the petitioner’s legal and physical custody for at least two years and the petitioner has a full and final adoption decree on behalf of the child.
• Short notice of position relocation:  A U.S. Citizen petitioner, living and working abroad, who receives a job relocation within the same company or subsidiary to the United States, or an offer of a new job in the United States with very little notice.

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A K-1 visa is issued to a fiance of the U.S. citizen who is willing and able to get married to the U.S. citizen within 90 days of arrival. If everything goes well, the couple gets married and later, they apply for adjustment of status for the non-citizen. The marriages by K-1 visa holder and a U.S. citizen are subject to Marriage Fraud Immigration provisions, and conditional residency requirements. It means that within 90 days prior to the second anniversary of the “green card” status, the beneficiary will have to submit a joint petition to remove the condition. This scenario works only when everything goes according to the couple’s plan.

However, life is life and not everything and not always develops as we plan it. The situations differ, and that is why it is best if a K-1 visa entrant speaks to an attorney. However, I will cover here common scenarios.

1. A K-1 visa entrant did not marry U.S. citizen within 90 days and remained in the U.S. This is one of the worst case scenarios because the law says that a K-1 visa holder who did not get married within 90 days of entry to the petitioning US citizen, cannot change her/his status to a non-immigrant or immigrant status in the US. The only option for such a person would be to file for asylum if the person qualifies for it, of course.

2. A K-1 visa entrant did marry their U.S. citizen fiance, but the U.S. citizen appeared to be abusive and the permanent resident documents were not submitted by / with the U.S. citizen. In this case, the K-1 visa holder can self-petition him/herself under VAWA provisions. It will not be easy to receive a permanent residency this way, because USCIS holds a position that I -360 should not be the basis for adjustment for the K-1 holders. At the same time, if the abuser is the U.S. citizen who sponsored the fiance, the USCIS may still grant adjustment K-1 holder’s status. Recent BIA decision support this position.

3. A K-1 visa entrant married the U.S. fiance and got divorced. Can he/she adjust? Maybe. It depends on the length of the marriage, and if the U.S. citizen will be willing to execute the I -864 form affidavit of support and if the fiance finds a different exception to the public charge rule.

4. The K-1 visa entrant did not marry the U.S. citizen fiance but later got married to a different U.S. citizen and qualified for VAWA. Unfortunately, K-1 entrant will not be able to adjust here, because the abuser is not the original fiance visa petitioner.

It must be noted that the implementation of law regarding K-1 visa holder’s adjustment of status is still being shaped. However, one should remember, that he/she always has an option of leaving the U.S. and applying for a waiver of unlawful presence (which works of course only in the cases of an adjustment based on a new marriage with a U.S. citizen).

The post Adjustment Options For K-1 Visa Entrants appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.

With the US Supreme court decision in United States v. Windsor, the US recognized federal benefits in connection with same sex couples. To wit, the US government allowed family sponsored immigration for same sex unions. Gay spouses are allowed to sponsor their loved ones for adjustment of status, immigrant visas; may qualify as “relative” for immigration purposes in connection with various waivers and hardships, as well as bring their partners to the US on fiancé visas.

Like any other petitioner, a gay petitioner who would like to invite his/her prospective spouse to the US on K-1 visa, has to demonstrate a). that he/she has met prospective spouse in person within the past two years in person at least once (or apply for a waiver of the requirement); b). that both partners intend to get married within 90 days of arrival of the non-citizen partner; and attest c). that he/she will provide support to the non-citizen spouse during that spouse’s stay in the US.

The particularities of the same sex K-1 petitions come from the fact that not all US states allow same sex marriages and not all foreign countries (Russia, for example) are tolerant to the same sex unions. As a result, it is important to follow USCIS guidance in connection with such filings.

Some countries have very positive policy regarding LGBT community: for example, the Supreme Court of India insists on legal recognition of a third gender “other” and states that it is up to the person to choose the gender, without the need of ongoing or planned surgeries.

Unfortunately, sometimes a beneficiary of K-1 visa abroad can be stressed out about the fact that the name of the perspective spouse has to be printed on the US visa. Judging by the name, it can be guessed, that a US citizen spouse is of the same sex. If it is a concern, it is possible to ask the consulate not to print the full name of the petitioner. This allows avoiding potential safety concerns.

Same is true for requests to change the location for the K-1 visa interview. Here, however, a prior consent of the consulate in a new location is needed, as the new post is not obligated to accept LGBT applicant not at the country of his/her permanent residency and may deny the request.

K-1 process starts with submission of the I -129F petition. A through documentation as to the development of the relationship has to be presented as well. If the petition is approved, the documents will be sent to the National Visa Center which, very quickly should forward the file to the consulate.

Please contact office@shautsova.com to request a detailed consultation with an attorney.

The post K1 for Same Sex Couples (LGBT Fiancé Petition) appeared first on Immigration Lawyer NYC | Immigration Lawyer New York | NYC Attorney.