Is there a requirement that the LPR and USC spouse have ever lived together?

[dimbmw 1]

13 hours ago, Bugs said:

In short, they cannot deny your 5 year citizenship based on not living in marital union, but they can deny you if they later realize you misrepresented in order to get the green card in the first place.

 

How can they prove it in this case?

[charmander 692]

Google found this link http://www.lawqa.com/qa/in-an-n400-interview-can-they-ask-me-at-naturalization-to-proof-my-marriage-was-real

 

I guess the consensus among the professionals is USCIS shouldn't care but they can do whatever they want especially if they have new evidence suggesting the previous marriage was fraud.

[dimbmw 1]

49 minutes ago, charmander said:

Google found this link http://www.lawqa.com/qa/in-an-n400-interview-can-they-ask-me-at-naturalization-to-proof-my-marriage-was-real

 

I guess the consensus among the professionals is USCIS shouldn't care but they can do whatever they want especially if they have new evidence suggesting the previous marriage was fraud.

 

 

What do you really mean by "they can do whaever they want"

 

i found this:

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-36743/0-0-0-36814.html

(a)  Deportable aliens . A respondent charged with deportability shall be found to be removable if the Service proves by clear and convincing evidence that the respondent is deportable as charged.

 

 

doesn't this mean that they have to prove that the marriage was fraud first?

[geowrian 22,339]

22 hours ago, dimbmw said:

I have to clarify, I am not that much interested in anyone's particular experience with the similar case (as any paricular experience depend on some interviewer), I am interested in what does the law say.

The law has no requirement to live together, nor does it lay out precisely what qualifies as a bona fide marriage (it would be very easily abused if it was just a checklist of requirements). However, that doesn't mean they are completely unrelated either. Cohabitation is something USCIS usually closely examines as evidence of a bona fide marriage (I can think of a few cases off-hand where they have issued NOIDs at ROC for this reason).

 

While citizenship based on the 5 year rule is not directly tied to the original marriage, they have requested evidence of a bona fide marriage from others in the past. My assumption is they are verifying that fraud was not committed.

 

Quote

In any case, I am interested in the law about if the USC and LPR should ever have lived together, assuming that the marriage was bona fide.

As stated above, there is no requirement to live together. However, cohabitation (or lack thereof) is one aspect they look at to determine if a marriage was bona fide / if any fraud was committed.

 

As an example, if somebody entered the US on an IR-1 and never saw their spouse or communicated with them except via an attorney for a divorce, this will raise plenty of flags of fraud. The idea that the marriage was actually bona fide and the spouse did not enter the US via fraud (even if a CO made a determination that it was bona fide) is a very tough sell.

 

1 hour ago, dimbmw said:

First of all, doesn't they have a burden of proof to PROVE that the marriage has been NOT bona fide? If so, USCIS are supposed to conduct a certain investigation and then take the case to the immigration court, as now it is only an immigration judge who can revoke the LPR status and deport the person, isn't he?

Outside of the visa process and ROC, the burden of proof would be to show fraud was committed. However, this is not a "beyond a reasonable doubt" burden either...they aren't throwing the person in prison for a crime. This occurrence in practical application is very rare...the presumption would be that the marriage was bona fide and that does set a high bar. However, it's not an impossible bar to meet, and it has happened in some cases. Just because somebody fooled a CO once (assuming the person did actually commit fraud) doesn't grant them immunity from ever reviewing the authenticity of the marriage. That said, I think they would likely delay the naturalization application decision and look for more black & white misrepresentations...just odd timings of a divorce or a "feeling" would not hold up. However, they can certainly raise some eyebrows that further investigation may be necessary.

 

I'm not suggesting it's an easy process or they would just deport the person...as an LPR they are entitled to due process and to be heard in the US court system. But if the circumstances and evidence suggests fraud was committed, then the possibility of having one's status revoked and removal proceedings opened is very real.

 

https://www.us-immigration.com/us-immigration-news/us-green-card/can-my-us-green-card-be-revoked/

Item #1 is possible but very difficult to show. However, if #1 is suspected then trying to find something to show #3 would probably be the path as that's an easier/stronger case.

 

Anyway, going back to your original case...just living apart is unlikely to result in any actions by itself (but the person should be ready to explain it if asked). If it's combined with other evidence that tells a compelling story, things may be different.

[Villanelle 4,123]

Im not really sure why you are asking these questions? Unless theres something specific going on, in which case its best to lay out all the facts of the situation. Immigration court is difficult. In some situations its like you said the gov has to prove things. In other situations YOU have to prove you are eligible. I dont believe anyone on VJ is an experienced immigration court attny (besides a select few) and could answer the question of who has to prove what. And those who are probably wont answer a hypothetical question like this. 

 

[dimbmw 1]

46 minutes ago, geowrian said:

The law has no requirement to live together, nor does it lay out precisely what qualifies as a bona fide marriage (it would be very easily abused if it was just a checklist of requirements). However, that doesn't mean they are completely unrelated either. Cohabitation is something USCIS usually closely examines as evidence of a bona fide marriage (I can think of a few cases off-hand where they have issued NOIDs at ROC for this reason).

 

While citizenship based on the 5 year rule is not directly tied to the original marriage, they have requested evidence of a bona fide marriage from others in the past. My assumption is they are verifying that fraud was not committed.

 

As stated above, there is no requirement to live together. However, cohabitation (or lack thereof) is one aspect they look at to determine if a marriage was bona fide / if any fraud was committed.

 

As an example, if somebody entered the US on an IR-1 and never saw their spouse or communicated with them except via an attorney for a divorce, this will raise plenty of flags of fraud. The idea that the marriage was actually bona fide and the spouse did not enter the US via fraud (even if a CO made a determination that it was bona fide) is a very tough sell.

 

Outside of the visa process and ROC, the burden of proof would be to show fraud was committed. However, this is not a "beyond a reasonable doubt" burden either...they aren't throwing the person in prison for a crime. This occurrence in practical application is very rare...the presumption would be that the marriage was bona fide and that does set a high bar. However, it's not an impossible bar to meet, and it has happened in some cases. Just because somebody fooled a CO once (assuming the person did actually commit fraud) doesn't grant them immunity from ever reviewing the authenticity of the marriage. That said, I think they would likely delay the naturalization application decision and look for more black & white misrepresentations...just odd timings of a divorce or a "feeling" would not hold up. However, they can certainly raise some eyebrows that further investigation may be necessary.

 

I'm not suggesting it's an easy process or they would just deport the person...as an LPR they are entitled to due process and to be heard in the US court system. But if the circumstances and evidence suggests fraud was committed, then the possibility of having one's status revoked and removal proceedings opened is very real.

 

https://www.us-immigration.com/us-immigration-news/us-green-card/can-my-us-green-card-be-revoked/

Item #1 is possible but very difficult to show. However, if #1 is suspected then trying to find something to show #3 would probably be the path as that's an easier/stronger case.

 

Anyway, going back to your original case...just living apart is unlikely to result in any actions by itself (but the person should be ready to explain it if asked). If it's combined with other evidence that tells a compelling story, things may be different.

 

I understand that in case of the CR1 and subsequent ROC a couple must have lived in a marital union which means together - so no questions about that.

 

I am more interested in the IR1 case , when there has been no ROC at all, as the alien became LPR at port of entry.

 

Based on what you said, I am concluding that there is slim chance for the uscis to prove that marriage was not bona fide unless the USC or the LPR admits that it was a fraud. In fact, a couple could just have married and waiting for the alien to join the USC in US for 2 years, and then they could briefly meet and conclude that no..., they don't love each other as much any more. As their marriage is presumed to be bona fide and they don't have to prove anything to anyone, it puzzles me why IOs at N-400 interview even bother to ask sometimes questions about the reasons that led to divorce and other previous marriage related questions, if they stand no chance proving anything even in an extreme example like the one above.

 

 

Edited June 29, 2017 by dimbmw

[geowrian 22,339]

34 minutes ago, dimbmw said:

Based on what you said, I am concluding that there is slim chance for the uscis to prove that marriage was not bona fide unless the USC or the LPR admits that it was a fraud. In fact, a couple could just have married and waiting for the alien to join the USC in US for 2 years, and then they could briefly meet and conclude that no..., they don't love each other as much any more. As their marriage is presumed to be bona fide and they don't have to prove anything to anyone, it puzzles me why IOs at N-400 interview even bother to ask sometimes questions about the reasons that led to divorce and other previous marriage related questions, if they stand no chance proving anything even in an extreme example like the one above.

I certainly wouldn't say "no chance". I think it would be difficult for them to successfully revoke status (and have that upheld in court), but it has been done before.

 

I also agree with Damara that having this hypothetical situation doesn't really do much when you're getting this far down into the weeds. Short answer: it's possible, but difficult. Beyond that, it really comes down the the specifics of the case and what issue is going on within it (and when anything involving potential removal proceedings are possible, an attorney should be sought since there's a lot of intricacies involved that you won't find on a DIY forum...it's no longer a DIY case).

[Bugs 455]

4 hours ago, dimbmw said:

 

How can they prove it in this case?

In cases of gaining a visa or initial green card for entry, or gaining citizenship, the burden of proof swings more to the applicant on this, and USCIS has more liberty to deny, although it isn't without quality control.  In cases that result in deportation back out of the US, such as denial of ROC, or of a green card or citizenship getting revoked, the burden of proof swings more to USCIS, especially on court appeal.

 

So, therefore, in your "hypothetical" case, if you are trying to gain citizenship, they may want more proof of a genuine fraud less marriage before granting it.  It won't get you deported though unless the fraud is clear to them and they have the proof to subsequently revoke your green card as well in the process.

 

If your marriage is genuine, you shouldn't have a problem.  Whatever you used to prove that your marriage was bona fide, be sure you still have that proof.  And have reasonable explanations for why you two are not living together, including evidence of such.  And gather up whatever evidence that your relationship has been real since then, such as visitation receipts, chat logs, financial mingling, births of children, family affidavits, and so on, all of which can be and should be accumulated even if you don't live together.

 

If the above evidence is a problem, simply wait on applying until you can accumulate such.  After all, you can still live in the US as an LPR.

 

If your case is more complicated than this, then it's lawyer time.

 

 

Edited June 30, 2017 by Bugs

[candybabe 46]

On ‎6‎/‎29‎/‎2017 at 4:18 PM, dimbmw said:

 

 

If the IO "does not believe in bona fide marriage" , as you said, how can he just deny the application?I can believe that his personal impression should mean nothing other than that he will not approve the application on the spot. But deny? Really?! Just because he "does not believe"?  First of all, doesn't they have a burden of proof to PROVE that the marriage has been NOT bona fide? If so, USCIS are supposed to conduct a certain investigation and then take the case to the immigration court, as now it is only an immigration judge who can revoke the LPR status and deport the person, isn't he?

 

Further, taking this absurd situation to it's limit, how on earth USCIS can prove that the marriage was not bona fide, if there is absolutely no requirement to have any evidence that the couple ever lived together? The USC marries the alien, files for his GC, then he enters US in 2 years and becomes an IR1 LPR. The next day they divorce. How can USCIS prove that the marriage was not bona fide? These guys never had to live together and he has just arrived. In my opinion, unless one of them admits that the marriage was not bona fide, it is just impossible to prove otherwise. 

 

Correct me if I am wrong, maybe the burden of proof is not on USCIS ? Then it would have been a different story, but I still think the burden of proof should be on USCIS to take away someone's LPR status.

 

Just denying the N-400 application without attempting to revoke the LPR status and deport the person makes no sense either, right?

Actually the burden of proof is on the applicant - ALWAYS on the applicant, not on USCIS - You have to prove that whatever you have claimed is true with documentation - The officer starts with the presumption that nothing you claim is true - you will then have to show with tangible proof that you are telling the truth. It is written in the law that the burden of proof is always on the applicant.

Also -

any decision the IO ever makes is based on what he believes = his judgment , that is his job, to figure out whether the applicant is a valid beneficiary of immigration benefits or just a fraud. This is at the core of family based immigration.

There are cases that are in valid marriages, not in for the green card that get turned away because the IO did not believe them because their burden of proof was not met.

If the IO believes the marriage through which the applicant received benefits to be a fraud, special investigations can be called and immigration court notified.

 

 

 

[candybabe 46]

Also - on the N-400 you swear under oath that you did not marry for immigration benefits - citizenship can be revoked even years later if there is proof that the way you gained immigration benefits was through fraud.

At the interview, the officer has every right to ask you any questions about your immigration story line back to square 1.

So they would ask about how you received your first visa, your Green Card, what happened since etc the FBI background check will also confirm things as well.

 

If it was as easy as that to obtain a GC, marry someone in some foreign land for 2-3 years, get a GC and then divorce them once on US soil - everyone would do it..... the IOs may be slow but they are not stupid and building your citizenship case on lies is basically throwing it all out as it will never be safe.

 

As far as denying it, yes they can absolutely deny it. And when GC renewal comes around, your folder would be flagged with the citizenship interview commentary.

 

[dimbmw 1]

2 hours ago, candybabe said:

Actually the burden of proof is on the applicant - ALWAYS on the applicant, not on USCIS 

 

 

 

 

I believe you are wrong. Look up the law. 

[candybabe 46]

 

1 hour ago, dimbmw said:

 

I believe you are wrong. Look up the law. 

Enjoy !

 

INA: ACT 246 - RESCISSION OF ADJUSTMENT OF STATUS

 

Sec. 246. [8 U.S.C. 1256]

(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 or section 249 of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and canceling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act to the same e xtent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien's status prior to commencement of procedures to remove the alien under section 240 , and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status. 1/

(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 340 of this Act as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.

 

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7981.html#0-0-0-278

 

Also -

     INA: ACT 291 - BURDEN OF PROOF

 

Sec. 291. [8 U.S.C. 1361] Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this Act. In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9611.html#0-0-0-365

 

 

[candybabe 46]

1 hour ago, dimbmw said:

 

I believe you are wrong. Look up the law. 

Also - to answer your overall question :

INA: ACT 275 - ENTRY OF ALIEN AT IMPROPER TIME OR PLACE; MISREPRESENTATION AND CONCEALMENT OF FACTS

 

Sec. 275. [8 U.S.C. 1325]

(a) Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 6 months, or b oth, and, for a subsequent commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 2 years, or both.

(b) 1/ Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of-

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

 

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

(c) An individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

(d) Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, United States Code, or both.

 

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9025.html#0-0-0-332

[Bugs 455]

17 minutes ago, candybabe said:

Also - to answer your overall question :

INA: ACT 275 - ENTRY OF ALIEN AT IMPROPER TIME OR PLACE; MISREPRESENTATION AND CONCEALMENT OF FACTS

 

Sec. 275. [8 U.S.C. 1325]

(a) Any alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 6 months, or b oth, and, for a subsequent commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 2 years, or both.

(b) 1/ Any alien who is apprehended while entering (or attempting to enter) the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty of-

(1) at least $50 and not more than $250 for each such entry (or attempted entry); or

 

(2) twice the amount specified in paragraph (1) in the case of an alien who has been previously subject to a civil penalty under this subsection.

Civil penalties under this subsection are in addition to, and not in lieu of, any criminal or other civil penalties that may be imposed.

(c) An individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both.

(d) Any individual who knowingly establishes a commercial enterprise for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, fined in accordance with title 18, United States Code, or both.

 

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9025.html#0-0-0-332

The burden of proof rests upon the individual for entry visas or initial permanent resident status, but for revocation of legal status or deportation, proof shifts to USCIS.  Your links indicate this.  Only once definite proof of misrepresentation or fraud can they act on removing legal status.

 

Denying citizenship would fall under the former, but subsequent revocation of green card status would require the latter.

 

 

 

Edited July 5, 2017 by Bugs

[dimbmw 1]

25 minutes ago, candybabe said:

 

Enjoy !

 

INA: ACT 246 - RESCISSION OF ADJUSTMENT OF STATUS

 

Sec. 246. [8 U.S.C. 1256]

(a) If, at any time within five years after the status of a person has been otherwise adjusted under the provisions of section 245 or section 249 of this Act or any other provision of law to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and canceling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this Act to the same e xtent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alien's status prior to commencement of procedures to remove the alien under section 240 , and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status. 1/

(b) Any person who has become a naturalized citizen of the United States upon the basis of a record of a lawful admission for permanent residence, created as a result of an adjustment of status for which such person was not in fact eligible, and which is subsequently rescinded under subsection (a) of this section, shall be subject to the provisions of section 340 of this Act as a person whose naturalization was procured by concealment of a material fact or by willful misrepresentation.

 

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7981.html#0-0-0-278

 

Also -

     INA: ACT 291 - BURDEN OF PROOF

 

Sec. 291. [8 U.S.C. 1361] Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this Act, and, if an alien, that he is entitled to the nonimmigrant; immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this Act. In any removal proceeding under chapter 4 against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9611.html#0-0-0-365

 

 

 

This is all irrelevant.

We are talking about a person who has been a LPR for over 5 years and is not a citizen yet.