New 90-Day Rule Affecting Adjustment of Status For Spouses With a Nonimmigrant Visa






New 90-Day Rule Affecting Adjustment of Status (Green Cards) for Spouses of U.S. Citizens Who Enter The U.S. With a Nonimmigrant Visa

Frequently Asked Questions

What has changed with the recent update in the Foreign Affairs Manual?

On September 1, 2017, The Department of State (DOS) updated the Foreign Affairs Manual (FAM) changing the 30/60-Day Rule to the 90-Day Rule. Even though this is a (DOS) rule, USCIS may still rely on it for determining visa fraud and immigrant intent.

This change will directly affect spouses of U.S. citizens who entered the country with a nonimmigrant visa. The typical scenario arises when a person enters the U.S. with a tourist visa, marries a U.S. citizen, remains in the United States past the expiration date on the I-94 Form and files for DACA. The issue is that a nonimmigrant visa, such as a tourist visa, only allows the recipient to enter the country for conduct consistent with that temporary status. Therefore, if a nonimmigrant enters the United States with the intent to permanently remain, they are misrepresenting their intent at the port of entry. Entering the U.S. by fraud or willful misrepresentation makes a nonimmigrant inadmissible for DACA. Inconsistent conduct within a certain amount of time after admission had been addressed with the 30/60-Day Rule and it has now been replaced with the 90-Day Rule.
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Which are the Differences between the 30-60-Day Rule and the 90-Day Rule?

Prior to the implementation of the 90-Day Rule, an officer adjudicating an adjustment of status petition for the spouse of a U.S. citizen, could apply the 30/60-Day Rule. This rule allowed a presumption of misrepresentation if the applicant engaged in inconsistent conduct within the first 30 days of admission. A nonimmigrant who engaged in inconsistent conduct after 30 days but within 60 days of admission, would be allowed to present countervailing evidence of misrepresentation. Finally, if the alien engaged in inconsistent conduct after 60 days of admission, the DOS would not consider that conduct alone to constitute fraud.
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Is the 30-60-Day Rule still valid?

The 90-Day Rule, has now replaced the 30/60-Day Rule. The new rule creates a presumption of willful misrepresentation if an alien engages in conduct inconsistent with his or her nonimmigrant status within the first 90 days of admission. For purposes of applying the 90-Day Rule, conduct that is inconsistent with nonimmigrant status includes but is not limited to:

  • Engaging in employment without authorization;
  • Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (such as a tourist visa);
  • A nonimmigrant in B or F status prohibiting immigrant intent, marrying a U.S. citizen or lawful permanent resident and taking up residency in the U.S.;
  • Undertaking any activity for which a change of status or adjustment of status would be required, without the benefit of such a change or adjustment.

If an alien engages in inconsistent conduct more than 90 days after being admitted, there is no presumption of willful misrepresentation. However, if the officer has “reason to believe” that there was a misrepresentation, he can request a finding of misrepresentation. A finding of misrepresentation would make an applicant inadmissible for adjustment of status. To reach a conclusion that there was a misrepresentation, the officer must have direct or circumstantial evidence to meet the “reason to believe” standard which requires more than mere suspicion but less than a preponderance of the evidence.
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Which Scenarios May Trigger the Application of the 90 Day-Rule?

While a nonimmigrant may have entered the country to engage in conduct consistent with his or her visa, it is conceivable that his or her intent may change once here.

Consider this example.

Teresa, a Mexican citizen, enters the country on a tourist visa to visit her U.S. citizen sister who is giving birth to her first child. Teresa is given 90 days to depart the U.S. During those 90 days, she spends time with her newborn niece but also unexpectedly reconnects with her childhood sweetheart, Jose. Jose is now a U.S. citizen and used to reside in Mexico, in the same town as Teresa before he immigrated to the U.S.

Because Teresa’s U.S. citizen sister is busy with her newborn, Jose offers to take Teresa sightseeing. Their childhood love is rekindled and they spend almost every day together. Two days before Teresa has to return to Mexico, Jose realizes that he cannot be without her and asks her to marry him; Teresa and Jose get married the next day and file for Teresa’s adjustment of status shortly thereafter.

Because Teresa engaged in conduct inconsistent with her nonimmigrant visa within 90 days of admission—she married a U.S. citizen—it is likely that the 90-Day Rule will be applied. In order to overcome the presumption that Teresa willfully misrepresented her intentions to engage in only status compliant activity during her visit, she must show that her intent at entry was to visit her sister and return to Mexico within 90 days. Some of the things we can use to show her consistent intent include but are not limited to:

  • Proof of her niece’s birth.
  • Having purchased return flights.
  • Having requested time to travel from employer.
  • Having continued to maintain a residence in her home country during her U.S. visit.
  • Proof that her relationship to her U.S. citizen spouse began after her entry, such as text messages, emails, letters, social media messages and posts, etc.

Even with this evidence USCIS could conclude there was misrepresentation

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What do I Need to Prepare for the New 90-Day Rule Affecting Adjustment of Status?

In addition to preparing evidence of consistent intent at entry, couples should be well prepared for their DACA interview. The interview will be the most crucial part in establishing consistent intent at entry. An experienced immigration attorney can guide you through the process, file your case, prepare you and your spouse for the interview and attend the interview with you.
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If you have any questions, schedule a consultation with us, call now (916) 613-3553

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an immigration attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.

The Importance of Filing Properly for an I-751 Petition

How Should I file for an I-751 Petition to Remove Conditions on Residence?



The removal of conditions process is an additional safe-guard that USCIS (U.S. Citizenship and Immigration Services) uses to make sure that a marriage was bona fide before approval for a permanent green card.

If you obtained your green card through marriage and have been married for less than two years when you received your green card, that green card will be temporary for two years

You must file an application for removal of conditions, Form I-751, during the 90-day period immediately before your conditional residence expires. This allows you to obtain your “permanent” green card which is valid for ten years.

However, if the petition to remove conditions is not filed, you will automatically lose your permanent status two years from the date on which you were granted conditional status and you will become removable from the United States.

As we discussed, the purpose of this filing is so that USCIS can verify that the marriage was bona fide from its inception. In other words, USCIS wants to make sure that the marriage was entered into in good faith and not for the sole purpose of obtaining the immigration benefit. Filing Form I-751 alone will not be sufficient to receive an approval of the removal of conditions. In fact, you are guaranteed to receive an RFE (Request for Evidence) if you do not include evidence of the bona fides of the marriage. RFE’s are issued frequently, even where evidence is submitted. An RFE can cause undue delays leading to the beneficiary’s conditional green card to expire while the petition is pending. Therefore, it is imperative that you file your case properly and with substantial evidence from the beginning.

What evidence should accompany your Form I-751?



The evidence that you include with your petition should cover the period of time from the date of the marriage to the present. Here are some examples:

  • Birth certificates for any children born to the marriage;
  • Lease agreements listing both spouses as leasees;
  • Joint bank statements;
  • Proof of jointly owned assets;
  • Insurance policies listing the other spouse as beneficiary;
  • Jointly filed taxes;
  • Joint bills;
  • Photographs.

Is it possible to avoid the I-751 Interview?



Yes. As part of the I-751 removal of conditions process, both spouses are required to appear at an interview (INA § 216). Most couples fear this interview because it involves being subjected to what can be intrusive personal questions about their marriage. What’s more, if something goes wrong during the interview the conditional resident status maybe in peril. However, if USCIS is satisfied from the initial filing that the marriage was bona fide they may waive the interview and approve the I-751 petition. Having an experienced attorney guiding you through the document collection and filing process will increase your chances of avoiding and RFE and having your interview waived.
This blog entry is not, nor is it intended to be, legal advice. This blog is for educational purposes only. Remember that each case is unique.

Schedule a consultation with us, call now (916) 613-3553


Disclaimer: The testimonials, case results and/or endorsements do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

5 Mistakes to Avoid at Your Marriage Green Card Interview

Going through the green card process can be very stressful from the beginning: collecting documents, filing your application, appearing for a biometrics appointment, and then waiting for up to six months to appear at an interview.

Once applicants receive their notice to appear they tend to become even more stressed. The uncertainty of what will take place at the interview, what kind of questions they will be asked, and all the “what if’s” begin to cause even more stress. Having represented many clients at their USCIS interview, I have compiled a list of the top 5 mistakes you should avoid making at your interview:

 

  1. Do not be unprepared.
    Your interview notice will list the items you must bring to your interview. Read your notice carefully and gather each item you are requested to bring. Even if you have already submitted a copy of most items listed, you must bring your originals, such as:

    • work authorization document
    • passport and visa
    • birth certificates
    • marriage certificate
    • certified divorce decree
    • certified criminal records

    If your adjustment of status is based on marriage, bring updated joint documents such as:

    • utility bills
    • bank statements
    • lease agreements

    Your documents should be well organized and labeled so you can retrieve them easily for the interviewing officer.

     

  2. Do not volunteer information.
    During the interview, you should only answer the questions you are asked and you should only provide those documents you are asked for. Volunteering information and documents can cause the interviewing officer to pry into unnecessary information that may be prejudicial to your case. For example, providing the officer with full bank statements will allow the officer to see where you have spent money and time. If you have traveled a lot since your marriage, this may lead the officer to incorrectly believe you are not actually residing with your spouse causing him to question the legitimacy of your marriage, when in fact you have a valid marriage.
  3.  

  4. Tell the truth.
    Do not lie to the interviewing officer as this is a federal crime and could make you inadmissible. You must remember you are under oath, and while you do not want to volunteer unnecessary information, you must tell the truth when a specific question is asked. If you do not remember a date or event, do not make it up. The officer may try to lock you into an answer, but if you do not remember you must just say so.
  5.  

  6. Do not be combative.
    While most officers are professional, certain officers will have an aggressive approach to their interviews—especially during fraud interviews. The officer may phrase questions in a manner that will seem accusatory or offensive but you must maintain your composure. Remember that the interviewing officer will decide your case, so you want him on your side. Always address him as officer and answer his questions in a polite manner. As a last resort, if you feel you are being treated unfairly or disrespectfully, you can ask to see a supervisor, but again, remember you want the interviewing officer on your side.
  7.  

  8. Bring an attorney.

    If you have a case with any complications, you should hire an attorney to appear at the interview with you. Having an attorney can help you avoid denials, appeals, deportations and/or having to refile your case. Even when you do not have a complicated case, having an attorney will ease your stress allowing the interview to go smooth. A competent attorney can prepare you for the interview by going over the questions you will be asked, identifying and addressing any issues that may come up at the interview.

 

Contact our office at (916) 613-3553 or email us at info@ranchodlaw.com if you have immigration questions.






I received my Green Card, I totally recommend the Ranchod Law Group






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We are pleased to publish this recent endorsement by Nicole, who has recently been issued a Green Card. In this Testimonial, Nicole describes her experience with the Immigration Attorneys at the Ranchod Law Group:


“I recently received my green card, I’m very pleased with the work that Yesenia Rosas from Ranchod Law Group did for us, she was always available, she answered all my questions, and i had many questions :), I followed her advise about not traveling abroad while in the process. She came to the interview with us and it was so worth it to have her there. I totally recommend her and the Ranchod Law Group to anyone looking for a professional and responsible lawyer.”

Nicole R.





I751 Removal of Conditions When the Marriage Has Ended





Form I-751

Form I-751: Petition to remove conditions on residence - Department of Homeland Security, U.S. Citizenship and Immigration Services

USCIS Form I-751


The is an additional safe-guard that USCIS (U.S. Citizenship and Immigration Services) uses to make sure that a marriage is before approval for a permanent green card. If you obtained your through marriage and had been married for less than two years when you received your green card you will have to submit an application for removal of conditions, . This allows you to obtain your “permanent” green card which is valid for ten years. For those whose marriage has since ended, this can be a confusing process. Some are not sure whether they can still file for removal of conditions.

This blog post explains why you should still file for removal of conditions and how to go about it even after your marriage has terminated.

Why You Still Need to File for Removal of the Conditions:
Even when a marriage has terminated you still must file for the removal of conditions before the expiration date written on the card. If you do not file, you will automatically lose your status on the expiration date and become removable from the U.S. Because these consequences are so severe, it is very important to file the petition before the expiration date.

How to Apply for Removal of Conditions:
Normally, when you are still married, you and your petitioner-spouse apply for the jointly, meaning that you both sign it and appear together for an interview. However, there are several circumstances where USCIS allows you to apply for a waiver of the “joint filing requirement”. One of the circumstances is where the marriage was bona fide but then later was terminated either by divorce or annulment. In this case, you will need to submit to USCIS a certified copy of the divorce judgment and or annulment. In addition, USCIS will need to see bona fides of your marriage up to the point of separation. In other words, just because the marriage may have ended, USCIS still needs to be satisfied that the marriage was still real and entered into in good faith.

divorce or an annulment?:
Some of our clients that are separating ask us whether to seek a divorce or an annulment, and whether or not it makes a difference. Although we are not divorce attorneys, for the purposes of waiving the joint filing requirement, USCIS accepts termination of a marriage by either divorce or annulment and they do not appear to be treated differently. Throughout the instructions to the Form I-751 it indicates that a conditional resident may apply for a waiver when the marriage was “terminated due to divorce or annulment”, indicating that either is acceptable.

What if the Divorce or Annulment is Not Yet Final?:
USCIS has indicated that if the divorce or annulment is not yet final, a Request for Evidence (RFE) may be issued asking for a copy of the final divorce judgment or annulment and a written statement asking to have the petition treated as a waiver of the joint filing requirement. The RFE will generally allow a response within 87 days. If the divorce or annulment becomes final during the response time then USCIS will evaluate the petition.

As always, we recommend submitting ample evidence that your marriage was real for however long it lasted. Your marriage ending should not be an obstacle to prevent you from obtaining your permanent green card.

This blog entry is not, nor is it intended to be, legal advice. This blog is for educational purposes only. Remember that each case is unique. If you have questions about your own immigration case, please contact our Sacramento or Santa Clara office at (916) 613-3553 or info@ranchodlaw.com to schedule a consultation.

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Immigration Lawyer reveals a top reason for Green Card denials in Sacramento, San Francisco and San Jose





One of the top questions I get from my marriage based clients is

Why would my case be denied?

One of the top reasons that cases are denied is because the couple fails to demonstrate that they have a bona fide relationship. However, let me be more specific. The top reason that I have found as the cause of a denial or second interview or further investigation after the interview is the failure to provide joint documents.

It is not enough to explain that you love each other.

Even if you are able to answer questions correctly at the interview, if you do not have joint documents, depending on the immigration officer, you may get called into a second interview or your case could be denied or get a Request for Evidence (RFE). If the RFE is not responded to appropriately that could result in a denial.

Why is this the case?

USCIS finds that you have the burden of proof to demonstrate you meet the legal requirements to obtain a green card.

Since they get so many fraudulent applications and applicant’s can “fake” the interview, USCIS finds that your marriage is much more likely to be “real” if you have co-mingled your funds. Thus, joint documents help demonstrate that your finances are co-mingled and your relationship is bonafide (real).

Therefore, when attending your interview, it is important that you bring your joint documents and additional documentation requested in the USCIS interview notice.

Call our office if you have questions at 916-613-3553 or email our office serving Sacramento and Santa Clara at info@ranchodlaw.com.

3 Very Important Questions When Applying for Marriage Based Green Cards









3 questions you should ask your immigration attorney about marriage based green cards

  1. How do I overcome the burden of proof?
  2. Do you meet the affidavit of support (I864) requirements?
  3. Do I have appropriate Joint Documents?

What is the difference between an employment authorization document and a greencard?

What is the difference between an employment authorization document and a greencard?

Immigration attorney answers your questions about work permits and greencards

What is the difference between an employment authorization document and a greencard?

What is the difference between an employment authorization document (EAD or work permit) and a greencard (lawful permanent residence)?

One of my Sacramento client’s question took me completely by surprise:  the client said to me, if I have a work permit, why do I need a greencard? Sometimes, as an immigration lawyer, I need to inform my clients of the benefits and drawbacks of obtaining a greencard or naturalization if they do not know the basics. The differences between a work permit and a greencard are very important and certainly worthy of your attention.

A work permit is merely a TEMPORARY card that allows you to work legally in the U.S. temporarily. You cannot obtain a work permit by itself. A work permit is a benefit of some sort of underlying status.

For example, you cannot come to the U.S. and simply apply for a work permit just because you want to work in the U.S., you have to have an underlying right to obtain a work permit, some sort of employment visa or other ground. Accordingly, when the basis for your work permit finishes, your work permit also terminates. For example, if you have a pending employment green card and it is denied, your work permit (which was obtained on the basis of that pending application) becomes invalid and you are left without the ability to work in the U.S.

By contrast, with a greencard, you are always allowed to work legally in the U.S. Your permanent greencard (a conditional green card is only valid for two years) is valid for ten years but even if the greencard card itself expires you are still considered a lawful permanent resident (“greencard holder”).

While a work permit is temporary, a greencard is considered permanent (note, it is possible to lose your greencard if you abandon the U.S., commit certain crimes, consider yourself a nonresident for tax purposes, or other grounds). A greencard is considered permanent because you will have it indefinitely unless you do something wrong deserving of losing it. This is in contrast to a work permit, which will terminate when the underlying basis expires.

Additionally, a work permit does not give you a basis to apply for naturalization (U.S. Citizenship). You must first be a lawful permanent resident (greencard holder) to apply for naturalization. Only U.S. Citizens can vote and unlike both holders of work permits and greencards, U.S. citizens generally can never be deported from the U.S. Again, only green card holders have the ability to qualify for naturalization, being the holder of a mere work permit is not enough.

For any questions, call us at (916) 613-3553 so that we can schedule a consultation.  We represent clients throughout the fifty states with offices in Northern California.

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Published by: The Ranchod Law Group

 

Greencard vs. U.S. Citizenship FAQ




Greencard vs. U.S. Citizenship

Green Card FAQ

Greencard vs. U.S. Citizenship FAQ

Ultimately, many of our clients desire to become lawful permanent residents (greencard holders) or U.S. Citizens. Each status carries its own benefits. Here we will address the more common questions we hear in our practice from new greencard holders and naturalized U.S. Citizens.

Do I need a work permit?

Greencard holders and U.S. Citizens do not need a work permit to work legally in the U.S. As a greencard holder or U.S. Citizen you can prove your ability to work lawfully in the U.S. by showing an unrestricted Social Security card and your unexpired permanent resident card, US passport, or naturalization certificate, as applicable.

Do I need a travel permit to travel outside of the U.S.?

Greencard holders and U.S. Citizen do NOT need a travel permit, please see below for further details as applicable:

Greencard holders: In general, to travel to another country you will need to present a passport from your country of citizenship or your refugee travel document, and you will need to present a valid, unexpired greencard to return to the U.S. You must also pay attention to whether the foreign country you are visiting has any additional entry/exit requirements (such as a visa).

Note that as greencard holder you may be found to have abandoned your status as a lawful permanent resident if you spend too long abroad or otherwise indicate that your travel abroad is not of a brief or temporary nature. Please see our prior post on that topic.

U.S. Citizens: As a U.S. Citizen, you can travel abroad with your U.S. Passport. U.S. Citizens can remain abroad without restrictions and without fear of losing their U.S. Citizenship.

Can I vote?

Greencard holders CANNOT vote. Only U.S. Citizens can vote.

Do I have to file taxes?

Yes! Filing taxes as required is mandatory for both greencard holders and U.S. Citizens. Others in temporary status who work in the U.S. are also required to file taxes.

Can I ever be deported?

Greencard holders can lose their greencard status and face deportation. A common reason a greencard holder can be deported is for certain criminal convictions. U.S. citizens, provided there was no fraud in obtaining the U.S. citizenship, do not need to fear deportation.

Can I be a dual citizen?

Generally, you can keep your home country’s citizenship even if you become a U.S. Citizen. Some countries however, do not allow dual citizenship. Please contact us at (916) 613-3553 to schedule a consultation so that we can advise you as to your specific situation.

If you are interested in becoming a lawful permanent resident (getting your greencard) or becoming a U.S. Citizen we encourage you to contact us at (916) 613-3553 to discuss your options. We can schedule a meeting at our offices in Sacramento or San Francisco or we can meet telephonically or via Skype if you are not in the area. We are available for all of your immigration needs.

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Published by: The Ranchod Law Group