We are sort of on the same page. The link you give was for the criminal conviction of someone accused of immigration fraud. If the OP were ever charged and tried for the suspected fraud, the prosecution would have to provide this level of proof. My point is that the USCIS do not even have to meet this level of proof to deny the GC--they just have to rule that the evidence of fraud that they have is more convincing to them than any evidence to the contrary. They don't have to convict him of the criminal offense to deny the benefit. The adjudication of the benefit is not a criminal ruling and doesn't have to meet the same standard of evidence. Why do I make the distinction here? Because I don't want to leave the impression that this level of proof is required to deny the benefit.

Are we talking about different statutes?



Ok, ok...yes yes that's exactly what I thought. And that's what I thought when I read the ruling. Hey I'm not a lawyer....just a lowly legal secretary and yeah, the bosses have to explain stuff to me. I figure that's what they make the big bucks for.

Yes

am1996 what type of law are you in??

I completely agree with you there. In general terms, with the same exact facts, it is certainly far easier to deny somebody a civil benefit than to convict that person of a criminal offense. This is as axiomatic as it gets.

The interesting thing about the cases that have been posted is that the government did not prevail in them inspite of the burden being on the alien to establish that he qualifies for the immigration benefits. The cases also greatly clarified and in many cases curtailed the amount of discretion given to USCIS as it adjudicates these cases.

Oooooooooooooooooooo............I'm soooooooooooo confused!!!!

I still have a headache.

The decisions there just said you cannot declare that a marriage is not bonafide just because a couple does not live together. The immigrant still has the burden of proof that the marriage is bonafide, but simply not living together cannot be the determining factor.

As I said before, the viability of the marriage is not the same as being bonafide. The USCIS may not make determinations of viability, but can make determinations whether it is bonafide.

I am a mid-level/senior corporate finance associate at a very large national firm. While I am a US citizen, I was not born in the US and have only been naturalized a few years ago. In fact, I've had to deal with the old INS and USCIS all through the undergrad and law school and have numerous friends who've done the same.

NONE of this gives me or anybody else out there ANY credibility, however. Instead of focusing on the person's background (and sooooooooooo many people misstate/exagerate their backgrounds on the Internet), I continue to invite people to examine my reasoning and the support I provide for it and then form their own opinions on the matter.

I'm a janitor - but that may be an exaggeration

This is all 100% correct. These cases (and I am certain that there are others that further clarify the issue) establish the following, however:

1) A marriage entered into in good faith and still "legally unterminated" is sufficient to support an AOS petition;

2) Once an alien is able to prove that the marriage was entered into in "good faith" and that it has been "consummated," USCIS is REQUIRED and has NO DISCRETION but to award the petitioner an alien status without regard to the marriage's solidity or viability;

3) Unless there is EVIDENCE (rather than "feelings" or "suspicions") that the marriage was a fraudulent or a sham marriage, the fact that the alien misrepresents that he and his wife are still residing together does NOT consitute a material misrepresentation and does NOT render him ineligible for an adjustment of status.

These cases have other rather important holdings but I'll leave those to somebody else.

OK ... I'm not a janitor, but I can perform heart surgery cause I saw it once on T.V.




I would say that filing a no-fault divorce immediately after the AOS interview is EVIDENCE. Unless the OP supplies some measure of evidence to rebut it, the scales tip in the direction of fraud. They apparently had other evidence too based on their allegations. I doubt they asked the questions out of the blue.

I think the missing element for the OP is the good faith part.

BWAHAHAHAHAHAHAHAHAHAHA!

And I stayed at a Holiday Inn Express last night!!

John, I think that we all understand your argument and find it quite compelling. I also think that we all agree at this point that USCIS' inquiry will focus on all the circumstances surrounding the marriage and that the OP will be required to establish, by a preponderance of the evidence, that his marriage had been entered into in "good faith," as that term is defined in case law.

My only point all along has been that the OP's response to USCIS' "are you still married" question may not have been unlawful, imprudent or "dumb." The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that the misrepresentation does NOT make him ineligible for an adjustment of status. Do you agree with this assessment?

Mmm. Reminds me of the (elsewhere ongoing) "30/60 day 'rule'" (consular guideline regarding 'when' the marriage takes place after entry'). Rumor is that CIS applies the same 'rule' (which isn't a rule and belongs to DoS).

Too bad the OP doesn't have representation. I doubt he'll be able to argue much of this on his own.
I notice that the cited case is from 1978. I wonder what the implication is now for a marriage that is less than 2 years old? The Carla Freeman case (tho totally unrelated) explains the "2 years of marriage" requirement. Heck, we had a widow thrown out of our city on the same (death + 2 years marriage) 'technicality'.

Not entirely, am1996. Well, not as far as I can see, in the instant case, that is.

Can't recall which one of those I listed, but here was one case (Nwe York seems to ring a bell, as the divorce laws were germane) that did go so far as to suggest that a marriage in the terminal stage, and by that I mean if a legal separation had been struck between the parties or if divorce proceedings had been initiated in the Court, that this might impact the determination of the alien's "intent" in terms of whether or not the union was bonafide at inception. So, once again, we are back to square one, in my mind. While the BIA has asserted that 'viability' shall not be the determining factor in adjustment of status cases, but rather the bona fide nature of the marriage will control, still a separation or divorce underway might in that the boan fide nature of the marriage *could* be tarnished with legal process underway before the adjustment of status petition has been adjudicated.

I feel like we're in Eulerian unicursular route of a labyrinth.

I wanted to correct my own post above to say that the second to last sentence should reas as follows: "The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that that misrepresentation ALONE does NOT make him ineligible for an adjustment of status."

That's the way I see it too. The misrepresentation, if there were any, would not ALONE preclude adjustment, but the fact that the marriage was in a terminal status *might* affect the success of any adjustment.

That's EXACTLY RIGHT (even the state is correct) The decision you are referring to is Matter of Lenning, Interim Decision #2817 (BIA 1980). It seems to be contradicted by the reasoning in Matter of Kondo, Interim Decision 2781 (BIA 1980). I have not and do not anticipate looking at the most recent cases but, based on the cases you've posted, I wholeheartedly support and agree with your statement above. Hence, the immigration attorney recommendation.

I agree that is was not unlawful and not dumb. I think it may have be imprudent in that he was given an opportunity to explain the "good faith" of his marriage and he did not--choosing instead to stand on the technical state of his marriage. I have the impression that he gave that response more in desperation to save his residence status having been exposed as a possible fraud. He may have thought wrongly that being married was all that was required. If I remember correctly, he posted that he believed that as long as he was married, they could not deny him. Perhaps he was not aware of the "good faith" aspect of the marriage requirement. The statement itself does not make him ineligible for an adjustment of status. However, if evidence is present that suggests that the marriage was not in good faith and he provides no evidence to the contrary, the adjustment of status can be denied and, if already approved, can be revoked.

So, for the most part we agree. As for prudence, I think he either missed an opportunity to provide "good faith" testimony or he had none to offer.

Additionally, I would think that they will scrutinize closely any future answers he may give based on his lack of disclosure on this question. So, even if this response isn't held against him, the demeanor of future questioning may be scewed against him. Just because a position is just and right and legal does not make it prudent.

I'm with you. I propose Baileys.

....

It was not in my original plan when I woke this morning to do quite so much thinking. I will clearly be needing a nap later.

Naps are just.

No day is ever so bad that it cannot be fixed with a nap.

John, on the prudential nature of the OP's answer, he had to make a quick judgment call -- if USCIS has no idea about the impending divorce and their question was not prompted by any unusual information, then telling them about it would have opened the door to a potential investigation. If, on the other hand, USCIS already knows something about it but he chose not to disclose it (even though we now agree that the nondisclosure was probably not unlawful), then your reasoning prevails and he may have made his situation worse.

On every other point, I completely agree with both of you (whoever thought we'd ever get here ).

Now for that nap!

But first I'd like to share a story.

There used to be a district judge here where I live who gave a speech at the beginning of each day of court. He said that he realizes both sides of an arguement believe that their position is right and just, but at the end of the day, he would have to rule and someone would not be happy. He recommended that until your case came up to continue to seek an agreement. As long as the parties worked toward an agreement, their outcomes were in their own hands. As soon as they put the onus on him to decide, it was out of their control.

What's the point of my story?


No matter how correct and just and right you think your legal position is, you just might find yourself on the losing end.

And that, my friends, sounds like a wrap-up to me!!

Hi everyone,

I consulted an attorney yesterday morning and along with the scare came along a whooping 420 $/hr 1-on-1 USCIS consultation proposal. I thought and thought and end of the day decided to leave it on the actions of the USCIS adjudicators.(approval/denial).

Went back home from work and in my mailbox were 5 mails all from VSC. whoa, i said to myself, time to pack my bags, boy !!!!

On opening, 4 of em were Notice of Action (Welcome notice or I-797) and the last mail had it all. The 10-yr PR card.

Finally an end to my waiting.....whew, whatta relief.....thanks to all who responded, advised or even ridiculed. So the moral of the story is.....

"its sometimes better to open ur mouth and tell a lie rather than keeping ur mouth shut by acknowledging the truth and revealing all doubts....USCIS favors the brave too...."

- a happy man
- Atul

Congratulations, Atul. This is GREAT news!

Since we are sharing war stories here, I can tell you that during my naturalization interview a few years ago the adjudicator spent quite some time probing and questioning me on whether I had left the country since the filing of any of the immigration applications (I didn't have AP). The answer to that was "no" (I really hadn't) but the line of questioning and the adjudicator's fervor certainly had me quite worried that my records might've been cross-linked with somebody else's. Well, the adjudicator finally relaxed and told me that she did that to all the aliens appearing before her.

The moral of the story? Just because you are being questioned about a matter does not mean that the person asking the question is on to something. Don't jump to too many conclusions based on a line of questioning.

Anyone want popcorn??

Hey congrats. Looks like this godawful thread had a happy ending!

atul,

Well that, I'm sure, came as a relief for you and you must be feeling a little better, but why not spring the $400.00 now and just cover all that occured with that immigration attorney, just to be sure that all is in order? I'd approach it like a celebratory splurge, if you will. Best to know that all is well especially with the reception you received at the local office, don't you think? Then you can rejoice and get a real warm and cozy feeling. Good luck!

Yet you speak with quite significant authority. In my several years of practicing immigration law, which by the way has been very satisfying and dare I say quite successful, one of the main lessons learned was humility. You start off filled with notions and concepts of the rules and how they "ought to" apply.

Your points made on the law are excellent --- what you quoted is good case law. Yet, I think you misunderstood my point. Of course regulations should be followed -- but there are several strategic moves an attorney can make within that parameter, and reading them only at one level can really cost the client. It is not "sufficient" to simply follow these --- one must also anticipate the moves of USCIS, the staff that are not legally trained and see how one can avoid them misapplying the law. This is not always possible, but you will be surprised.

I guess what it boils down to is experience in the business. There is the law and regulations, but then there is also the "human side" you are dealing with --- you have to consider that. While one may stick to your position and refuse to make adjustments/compromises, it can cost the client by having it rise to extremely high levels of litigation.

Thanks doing your research --- you did a good job of compiling it. Just remember, with USCIS, the proof is in the pudding.

Why does that make me NOT want to jump up and down and be thrilled for you?

I believe the correct quote is "It is better to be thought a fool by keeping your mouth shut than to open it and remove all doubt"

Which you just did.



Especially when you can lie and get away with it.

No offense to anyone, especially the OP, but is anyone else...let's say, perturbed, by the hubris of essentially lying to USCIS and now boasting of it?

If I didn't think it happened quite often, I would be more concerned. I think that a lot of people who shouldn't be 'let in' get let in and are allowed to stay.

As for lying and boasting, I let karma deal with it. Easier on the stomach.

** Sharing Baileys with Rosie **



** and pouring 'Becca a glass **

What shall we toast to?

Dumbness.

*clinks glass*

Honesty

** clinks back **

Here Here!

**buys second round**

So far, no one has realized, nor acknowledged that a "marriage based" GC approval depends on not only the bona fide intentions before the marriage, but also during and after. A separation or divorce would quickly invalidate the "bona fide" part and replace it with "highly suspicious and questionable," which is why the OP, being fully aware of this and in hopes of still securing a GC anyway, lied to the 'CIS.

So to those looking for any gray areas within and/or blaming the law as a way to justify the OP's "harmless little, white lie," please don't insult our intelligence, face the truth, accept the facts and tell it like it is: yes, it was a dumb move.

Otherwise, the OP wouldn't be here seeking mental, moral and emotional support, due to her guilty conscience and the fear of possibly getting caught.

Am I the only one who doesn't understand this post? I thought that all these issues were discussed extensively throughout the thread and a consensus was reached on the applicable law?

Just let this thread die "Geo123" (who is obviously either the fiancee of, or another username of am1996).

PS I'm putting you on my ignore list, so don't bother replying, I won't see it.

Huh? Another day, another asinine reply from dr_lha.

A thing of beauty.

I understood it. So it might just be you. I don't know.

I wanna get in on the Baileys too so I'll buy the third round and toast to the end of this long and drawn out topic!

I declare today Hug A Troll Day ™, and as such


**HUGS FOR GEO123**

Nope, not a troll. I just can't stand bullies

uffffffffffffffffffffff that was a lot of reading.