If you are an immigrant who obtained his or her residence in the US through marriage to a lawful permanent resident (green card holder) or US citizen, you probably already know that you will need to file a Form I-751 to remove your conditions on residence during the 90-day period before your 2-year green card expires.
What you may not be aware of is that the US Citizenship and Immigration Services (USCIS) has been making it much more difficult for your I-751, Petition to Remove Conditions on Residence, to be approved. While you may expect that if your application for a 2-year green card was approved without any problems, you can expect a similar result for your 10-year green card application, USCIS is now using official sounding language to deny cases that, based on applicable law, should be approved.
The “not enough joint assets” denial
One of the most common reasons that USCIS has been using to deny cases is that the spouses “did not establish, in sufficient detail, joint ownership of assets, joint responsibility for liabilities, and active co-mingling of finances for the duration of [the] marriage.” This, in simpler language, means that USCIS is taking the position that, to be approved, you and your spouse should be jointly responsible for bills, share your money through joint bank accounts, and own assets in both of your names.
However, this position is not supported by the law. The law applicable to I-751 petitions states that shared bills and jointly owned assets are merely one of the ways you can prove that your marriage is bona fide, but this type of proof is not required. The government must consider all the evidence submitted and determine if is “more likely than not” that your marriage is not a sham. This means that if you submit other types of evidence which demonstrate that you entered into your marriage in good faith, and not solely for the purpose of obtaining your green card, USCIS cannot require you to submit evidence of financial co-mingling or joint ownership of assets. The law takes into account that modern-day America, where both spouses typically work, couples may wish to keep their finances separate, therefore, it extends the courtesy of this lifestyle choice to immigrants applying for their permanent green cards.
USCIS’s boilerplate request for evidence (RFE) and denial, which include the financial co-mingling language discussed above, very commonly make claims that have no basis in the law, and applicants who receive these notices often assume that the government’s interpretation of the law must be correct. However, in addition to misstating the law, the government also frequently misapplies it. For example, we often see cases where the couple has submitted jointly filed tax returns, but USCIS claims that they have no joint assets of liabilities. This argument by USCIS is flawed, because if taxes are owed on a jointly filed return, both spouses are responsible for payment, which creates a joint financial liability. Similarly, if the jointly filed tax return results in a refund, the money belongs to both spouses, which creates a joint asset.
What to do after receiving an RFE or Denial in your I-751 case
If you have made the common lifestyle choice of keeping most or all of your finances separate, or you simply have limited documentation of shared financial liabilities and assets, you can still win your I-751 case. What you can to do protect your rights depends on the stage your case is currently in. If you have received a Request for Evidence, you are in a good position, because you still have the option of making a case for approval without submitting a new application, which would require the payment of government fees once again.
If your I-751 has been denied, the law does not allow you to appeal it, but it is possible to file a new I-751 petition with a new filing fee, and this can be done at any time before the Immigration Judge issues a Final Order of Removal (a deportation order) in your case. Luckily, immigration authorities are currently slow to place immigrants who do not have a criminal history into removal proceedings, so there is usually an option to re-file a denied I-751, sometimes even years after the first one was denied.
In the last year, we have handled many cases where the government either denied or threatened to deny applicants based on a lack of financial comingling. By presenting other strong evidence that demonstrated the bona fide marriage, and citing to the applicable statutes, regulations and precedent case law, we were able to create winning strategies for our clients’ cases and keep them out of Removal Proceedings.
If you have received an RFE or a denial of your I-751 for any reason, remember that the government is not always right. Call us today for a consultation with one of our award-winning immigration attorneys!
Every year, thousands of immigrants become victims of domestic violence and/or emotional cruelty, however few seek help for fear of negative immigration consequences. The U.S. laws, however, offer extensive protections to victims of such abuse, whether the perpetrator is a U.S citizen or not. Taking into account that abusers may attempt to control or intimidate their immigrant partners by threatening to have them deported, the law provides for ways in which victims can obtain or maintain lawful immigration status without their abuser’s knowledge or participation. Outlined below are several common immigration scenarios and a brief description of the solutions available under U.S. immigration law.
The immigrant does not have lawful status in the United States and is married to a U.S. citizen or Lawful Permanent Resident (“LPR”). The U.S. citizen or LPR spouse has abused the immigrant spouse and refuses to file immigration documents on behalf of the immigrant spouse.
Under this scenario, the immigrant spouse may be eligible to file a “self-petition” under the Violence Against Women Act (“VAWA”) and obtain his or her green card without relying on the abusive spouse to file immigration documents. Among other things, the immigrant spouse will have to demonstrate that he or she was subject to either physical or emotional abuse at the hands of his or her U.S. spouse. The immigrant spouse should keep in mind, however, that “abuse” is defined broadly, and what may not be considered abuse in the immigrant’s native culture could qualify as abuse for immigration purposes. Evidence of abuse may include, among other things, copies of protective injunctions, police reports, domestic violence shelter records, the immigrant’s own sworn statement and affidavits from others who witnessed the abuse. The immigrant may be eligible for a VAWA self-petition even after divorcing from the abusive U.S. spouse, provided certain conditions are met.
The immigrant has obtained his or her conditional green card based on marriage to a U.S. citizen or LPR. The immigrant has been abused by his or her U.S. spouse and the U.S. spouse refuses to jointly file documents for the permanent green card.
Typically, during the 90 days preceding the 2 year anniversary of when the immigrant obtained his or her conditional green card, the U.S. spouse and the immigrant spouse must file a “joint petition” with the Immigration Service to convert the conditional green card to a permanent one. In marriages involving abuse, the U.S. spouse may refuse to file the joint petition, or use the need to file the joint petition as a tactic to further abuse and manipulate the immigrant spouse. Under this scenario, the immigrant may be eligible to petition to receive his or her permanent green card without the participation of the abusive spouse.
In this situation, the immigrant spouse is not required to divorce the abusive U.S. spouse prior to filing for the permanent green card. However, he or she may divorce his or her spouse, if he or she wishes, without affecting the right to file independently for a permanent green card. In order to file independently, the immigrant spouse, will have to provide, among other things, evidence of the abuse, including police reports, domestic violence shelter records, the immigrant’s own sworn statement and affidavits from others who witnessed the abuse.
The immigrant does not have lawful status in the United States and was abused by an individual who is either without lawful status in the U.S. or who is not the immigrant’s lawful spouse.
An abused immigrant who is married to an individual without lawful immigration status in the U.S. would not be eligible for a VAWA self-petition described in scenario #1 above. Similarly, a person whose abuser is not their lawful spouse is also ineligible to file a self-petition under VAWA. However, such individuals may benefit from a form of immigration relief called the U-Visa. The U-Visa is available to victims of certain serious crimes, including domestic violence, who cooperate with law enforcement and prosecutorial authorities in investigating and prosecuting these crimes. In order to file for a U-Visa, the immigrant will need to first obtain a certification from the police or the prosecutor, attesting to the immigrant’s full cooperation.
Once the law enforcement certification is obtained, it is forwarded to the Immigration Service, together with other evidence, including evidence that the immigrant was the victim of a qualifying crime, that he or she suffered mental or physical injury as a result of the crime and that he or she fully complied with all requests for cooperation from the prosecutor and/or law enforcement. It is important to note, that a U-Visa is not a green card. Rather it gives the immigrant lawful status and work authorization in the United States. Provided certain conditions are met, the U-Visa holder will eventually be able to apply for a green card.
Cases involving abused immigrants are incredibly complex and individuals who find themselves in any of the situations described above should seek the counsel of a duly licensed immigration attorney with experience representing victims of domestic violence. For questions regarding domestic violence immigration options or any other immigration matter, please contact one of our top rated Orlando immigration lawyers.