lucyrich

Having a rejected tourist visa won't hurt the spousal visa at all if the reason for the rejection was failure to establish sufficient ties to the home country. And that is the most common reason for rejection of a tourist visa.

If the reason for the rejection of the tourist visa was something else, such as lying on a visa form, or a criminal background, then that would still be a reason to reject the spousal visa, so it would still present a problem. This isn't common, but is possible.

The child's green card stays valid regardless of what happens to the mom. I don't know enough about custody issues to say who would be in line for custody. I'm guessing the mom should probably talk with an attorney to develop an estate plan, and designate someone to care for her child. All parents should do that on general principles, but it's probably more important if the default action the court might take isn't what would conform to the parent's and child's wishes.

It sounds like the mom is eligible for naturalization. If she naturalizes before the child turns 18, then he'll automatically become a citizen the day she becomes a citizen (assuming he's in her custody in the US with a green card).

We were in a similar situation. Here's a thread that's many years old now, but it has cites of the relevant laws and regulations.

http://www.visajourney.com/forums/index.ph...c=64249&hl=

Your situation isn't quite the same as ours was, because you have lots of time living together abroad. But I'll point out that the three years living together requirement in INA 319.1 says "during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse". So you can't use time spent living together long ago to count toward the three years living together requirement.

As to whether the time must be spent in the US, according to the USCIS interpretations of 319.1 (go to the uscis page, look up laws and regulations, click on interpretations, and go to 319.1)

"It has been held, however, that the residence in marital union, or at least a substantial portion thereof, must be in the United States, with the citizen spouse. Thus, where the citizen spouse has never been in the United States, eligibility under the current statute is not established even though petitioner resided abroad in marital union with the spouse during a part of the three-year period."

"The requirement that the petitioner live in marital union with the citizen spouse during the three-year period should be given a reasonably strict construction in order that it may lead to accomplishment of the objective of having the noncitizen spouse absorb basic concepts of citizenship through close association with the citizen spouse."

There are some other paragraphs in that interpretation that might tend to argue that your situation would be approvable, though. And I'd say that spending two years and nine months living together in the US constitutions a "substantial portion" of the three year period. But what I say doesn't matter.

You can see our timeline below. We decided it was safer to wait until we had a full three years living together inside the US, so that it was absolutely clear we were eligible. After we filed and were approved, another VJ member posted that they were in our situation, where they had been married for over three years, but only started living together in the US when the alien entered the US on a CR-1 visa. They tried filing 90 days before the three years, and were denied because they hadn't met the "three years living together in valid marital union" requirement on the date they mailed their application in. So they started over with a new application.

The officer at our interview indicated that we filed as soon as possible. If we had applied 90 days earlier, she would have denied it. Maybe we could have appealed the denial, but the appeal would have been expensive and time consuming.

I'm still not 100% sure. My best guess is that, if you had a really good lawyer who could argue well on your behalf, and if you were willing to go through a bunch of court appeals, you could stand a good chance of eventually getting the case approved. But you'd spend a lot less money and get your naturalization much quicker by simply waiting the extra 90 days before filing.

Maybe that's because the laws aren't enforced. And they're pretty hard to enforce, to be fair.

In my state, it's been illegal to use a cell phone while driving for awhile now, unless you use it hands free. But almost every day, I see drivers illegally holding cell phones up to their ears. If the law doesn't result in a change in behavior, then it's not likely to result in a change in accident rates, now is it?

Never mind the fact that many studies seem to indicate that hands-free use of a cell phone is just about as distracting and dangerous as holding the phone up to your ear. So even if the law got everyone to switch to using hands free devices with their phones, it might not change accident statistics.

I don't know how they'll ever enforce a law against sending and receiving text messages while driving.

They normally don't re-hash the things that were gone over at the consular interview. They do need to make some entries into their computers to issue you the green card, and they've got to verify your US address where the green card will be sent. That's normally done in secondary processing, but rarely I've heard of it being done in the normal queue, depending on the POE and how busy they are.

The consulate already decided you were eligible for the visa. Basically, the POE can only turn you back if they find new information that the consulate couldn't have known about, or if they find you're carrying contraband or something like that. They don't look for a reason to turn you back, unless you somehow do something obvious that would arouse their suspicion. So the POE experience is normally quick and very easy.

Get a lawyer. You should be allowed to take oath once you meet the 3 year requirement. All the best.

Not without re-filing. INA 319(a) clearly says the three year requirement applies prior to the date of filing the application. INA 334(a) allows the 90 day shortcut on the 319(a) or 316(a) residency requirement, but if the application was filed earlier than the 90 day shortcut would allow, then the law doesn't allow the individual to just wait awhile and take the oath after the residency requirement is met.

Even if there was a clerical error, the USCIS officers don't have the authority to waive those provisions in the law enacted by Congress.

The wrong date on the green card was their clerical error. But the law doesn't allow them to naturalize you until you've completed three years as a lawful permanent resident, regardless of clerical error. If they didn't catch their error and let you go through the naturalization ceremony, your naturalization would have been invalid and you would probably be administratively denaturalized later, which would have been a tremendous headache for you (much worse than just re-filing an N-400). So you should be glad they caught it before the oath instead of afterwards.

On the N-400 which you filled out, you probably checked box 2B, which says "I have been a lawful permanent resident for at least three years ...". They made an error when they put the wrong date on your card, but you also made an error when you checked that box and claimed you had held the green card for at least three years.

One other point. In immigration matters, the intending immigrant always has the burden of proving eligibility for an immigration benefit. So, to get an IR-1 or K-3 visa, you have to prove you are legally married. To get a K-1, you have to prove you are not married. If you don't prove your marital status to the satisfaction of the officer, you don't get the visa. The normal standard of proof is "via a preponderance of the evidence".

It is not good to have any ambiguity in your marital status.

Just because the officer pointed out that it looked like the couple's marriage wasn't valid because of the irregularity in the dates of the divorce and marriage, that doesn't necessarily mean that same officer would say the couple has proven themselves to be single if that same couple applied for a K-1. In fact, I'd guess they wouldn't be eligible for a K-1, and if they filed for one, the previous K-3 filing on the record where they claimed to be married might open them up to a misrepresentation charge.

I don't know enough to suggest a course of action, but this is a tricky mess. They've got to prove their marital status unambiguously (a Philippine family law attorney might know how to do this), and they've got to avoid the appearance that they might have misrepresented themselves on the K-3 that they already filed (a US immigration attorney might advise them on that issue).

An immigrant visa is normally valid for 6 months from its date of issue, and it's normally issued close to the interview date. That means you've got to come to the US at least once during those six months or the visa will expire.

Once you've entered one time on the immigrant visa, the expiration date of the visa is no longer relevant. Subsequent entries are done using your LPR status, which doesn't expire (but can be abandoned or revoked). Evidence of your status will be either your green card or the stamp in your passport that they'll give you when you enter.

If things are processed too quickly, you can contact the consulate and delay the interview.

I'm not so sure about the K-3 validity dates.

Note that a naturalization certificate isn't the same as a certificate of citizenship.

Usually, a certificate of citizenship is given to someone who was born a US Citizen abroad or who became a citizen through the child citizenship act (probably when his/her parents became citizens, or when he/she was adopted). Such a person becomes a citizen through the action of law, but they don't automatically get any paper saying they're a citizen unless such a document is requested. So they (or their parents) file an N-600 to request a certificate of citizenship.

A naturalization certificate is given to someone who filed an N-400, took an oath of naturazization and became a citizen that way.

So does your paper say "certificate of citizenship" or "certificate of naturalization"? Or do you have both?

Thanks alot, So I dont need Tax returns, anything else that I am missing I have checked all the "If you" items and dont think any apply to me. One thing is the traffic ticket, I had 2 in past 4 years both for speeding and under $ 500. Can someone point out where it says on the guide that I dont have to mention if it doesnt involve DUI or under $ 500. I cant seem to find it on the guide.

See the M-476 (link above) Question 7, on page 8. Note that it doesn't say you don't need to mention it. In fact, it says you DO need to mention it. It says you don't need to provide any further documentation for minor traffic incidents.

Even if you have committed a minor crime, USCIS may deny your application if you do not tell the USCIS officer about the incident. Note that unless a traffic incident was alcohol or drug related, you do not need to submit documentation for traffic fines and incidents that did not involve an actual arrest if the only penalty was a fine less than $500 and/or points on your driver’s license.

On the I-485, Part 2, it asks my application type.

For a concurrent filing of an I-130 with an I-485, check box a. An I-130 for a spouse is an relative petition which will give you an immediately available visa number when approved. I've highlighted relevant words to explain:

An immigrant petition giving me an immediately available immigrant visa number that has been approved (Attach a copy of the approval notice, or a relative, special immigrant juvenile, or special immigrant military visa petition filed with this application that will give you an immediately available visa number, if approved).

The most confusing thing in the wording is that the petition hasn't yet been approved, but it will have been approved by the time they get around to looking at the I-485.

Hi All,

I will be filing for N-400 in February. I have some questions and was hoping if someone can shed some light on it. I will be filing based on 5 years of Green card. I know I can file 4 years and 9 months from the original GC issue date. I wanted to make sure I have all the initial documents.

1. Check along with completed form N-400

2. 2 pictures of mine with A# and name on the back.

3. Copy of green card.

4. Tax returns for past 3 years 2008-2006 ( I am filing for 2009 taxes but not sure if I will be able to get transcripts that quickly )

5. Copy of my Divorce decree (I got GC via marriage but recently got divorced)

Do I need anything else. Please any help will be appreciated.

Note that you don't need the tax returns, since you're not filing based on marriage. (You still might need them if you spent more than six months outside the US, or if you have any overdue taxes).

See the document checklist near the end of the M-476 for details. Be sure and look at every one of the "If you ..." items, to see if any of those conditions applies to you.

http://www.uscis.gov/files/article/M-476.pdf

I just e-filed and it was rejected. the reason was that the SSn did not match the name.

my question is, I did not include my wife's foreign income since it's small. Do i have to include that info or not?

thanks

She wasn't a resident during 2009, was she? If that's the case, and you want to file a joint return, you'll need to make the choice to have a nonresident spouse treated as a resident for the tax year 2009. That lets you file married filing jointly (normally, nonresident aliens are not allowed to file a joint return). To make the choice, you've got to write a letter and include the letter with your return, which means you can't e-file. It's all detailed in Pub 519.

http://www.irs.gov/publications/p519/ch01....ublink100038991

If you do that, and if she's got a SSN on or before the day you file, just use that SSN even if she didn't have the SSN during 2009.

And yes, you have to include your wife's foreign income if you want to treat her as a resident and file a joint return. Up to $87,600 of her foreign earned income is excluded from taxation, so you won't pay taxes on that first $87,600, but you still have to declare it.

http://www.irs.gov/publications/p519/ch03....ublink100039045

It may depend on the specific port of entry, and on how busy they are. Most ports of entry have a "traffic cop" directing people into the appropriate lines, at least during busy times. Look for such a person and ask which line to use. Always trust the word of a uniformed officer on the scene more than you trust the internet postings of someone on VJ (I'm including this posting in those that are not as trustworthy as an officer on the scene).

Normally, they'll let you stay together. They may direct all of you to go through the citizens/residents line, or they may direct you to go through the visitors line, or the lines might have different labels and different criteria for separation.

They normally don't have a problem with letting a US Citizen through on the visitor's line. So if there's nobody available to tell you otherwise, you can almost certainly get in line as visitors and then explain the situation when you get to the desk.

If you don't want to be separated, just don't separate yourselves. Politely explain to anyone who asks that you are travelling together as a family, and that you'd prefer to go through together. The worst that's going to happen is they'll say, "oh, if you want to go together, you'll have to go through that line over there".

A new immigrant coming in for the first time on an immigrant visa is likely to be sent into secondary inspection for further processing anyway, especially if it's at a busy time, so don't be alarmed when this happens.

You apply only for yourself. One application, one fee. She doesn't file anything at this time. Of course, in the biographic information, where it asks you to list your children, you list her, but you don't need to make any special notation that she's wanting to become a citizen too.

When you become a citizen, assuming she's still under 18 at the time, assuming she has a green card, and assuming she's living with you in the US, she will automatically become a citizen via the child citizenship act. She doesn't have to take any special action to become a citizen; the law makes her one just by being the child of a US Citizen who is under 18 and living in the US with LPR status in the custody of a US Citizen parent.

After you have your naturalization certificate in hand, you can fill out an N-600 request for citizenship certificate for your child. Or you can just apply directly for a US passport for your child.

But you will be married for the three full years at the time you have been a LPR resident for three years. As long as you got married before the initial date of your LPR, you will be fine.

I think what you're missing is that the 90 day shortcut only applies to the length of time you've been an LPR, not to the length of the marriage. From the box at the bottom of page 22 of the M-476:

If you are applying based on 5 years as a Permanent Resident or 3 years as a Permanent Resident married to a U.S. citizen, you may file for naturalization up to 90 days before you meet the continuous residence requirement. For example, if you are applying based on 3 years of continuous residence as a Permanent Resident married to a U.S. citizen, you can apply any time after you have been a Permanent Resident in continuous residence for 3 years minus 90 days. You may send your application before you have met the requirement for continuous residence only. Therefore, you must still have been married to and living with your U.S. citizen spouse for 3 years before you may file your application. You must also meet all the other eligibility requirements whenyou file your application with USCIS.

See the bold text. At the "three years less 90 days of LPR" date, they would not have been married to and living with the US Citizen spouse for a full three years. You can't mail the application before you have completed a full three years of marriage. There's no 90 day shortcut allowed on that matter, like there is on the three years LPR requirement.

We taped them onto standard sized sheets of paper, with printed captions/descriptions handwritten on the paper. Then we made color photocopies of them, which, though they wouldn't win any art prizes, reproduced well enough to be seen clearly. We included just the color copies, with two holes punched in the top, all secured with an acco clip (we handled the color copies just like we handled all of the other paperwork we submitted).

Our method guaranteed that loose photos wouldn't come out of the package and get lost, and guaranteed that the examiner could read our descriptions of the photos.

As to whether to include photos, or how many, that's a whole separate issue. We included a few, because they demonstrated that we travelled together (our photos were taken in front of various recognizable landmarks that were distant from one another), and, unlike lots of pages of printed text, it shouldn't take an officer long to browse through a dozen photos. If you know of a particular point which you believe your photos establish, and if you think fraudulent couples wouldn't easily be able to get photos like yours, then go ahead and include some. If they're just pictures of the two of you together in an apartment, that may not establish very much except the fact that the two of you were together at somebody's apartment.

but not everyone arrives on a spousal visa and then gets a greencard... If you adjusted your status based on an employment petition (or greencard lottery) and were an LPR first before you married a USC... Then when applying on the basis of that marriage, the latest date in the eligibility determination would not be the RESIDENT SINCE date but the three year anniversary of the marriage.

Another scenario is that you were married and both were greencard holders and then one of the spouses "naturalized". then the eligibility date is neither the 3 year anniversary of the resident since date or the marriage but the three year anniversary of the USC becoming a naturalized citizen...

Bottom line is you need to calculate all three eligibility dates based on the criteria, and then your eligibility is based on the latest date.

Another scenario is folks who enter on a CR-1 visa, where they only begin to share a household on the date of entry to the US. Note that the requirement is not only 3 years of marriage, but 3 years of "living in valid marital union with" a USC spouse. The box at the bottom of page 22 of the M-476 phrases it as "married to and living with" a USC spouse. There has been some debate here as to whether time spent married but living apart while waiting for a visa ought to count, but at least one couple in that situation has reported that their application was denied when they had submitted it 90 days before the three year anniversary of entering the US. They had three years less 90 days of LPR status, and over three years of marriage (and the USC spouse had been a USC since birth), but they didn't start sharing a household until the LPR status started, so they didn't have a full three years of being married to and living with a USC spouse on the date the application was mailed.

That was also our situation (see timeline below), but we waited until after we had a full three years of LPR status living together inside the US before filing for naturalization. We were approved, and the examiner noted that we had applied as soon as we could have.

I think you're talking about a marriage by proxy, but I'm not sure. But in any case, a marriage by proxy is not recognized for immigration purposes until after it has been consummated. And you have the burden of proving that it has been consummated. I'm not sure what kind of proof is acceptable. I've heard of cases where a couple was originally married by proxy and then lived together for several years, and much later filed immigration paperwork, and that was not a problem. But I don't know of any cases where the couple tried to file immigration paperwork quickly after a marriage by proxy. I'm guessing you'd have to show that you had shared a residence after the marriage, or at the very least, shared a hotel room on the honeymoon. Also, note that consummation of a marriage must happen AFTER the marriage is legally recorded -- sex before marriage is not consummation.

INA 101 (a) (35) says: The term "spouse", "wife", or "husband" does not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.

In most English-speaking cultures, along with many others, the family name is last, and the given name is first, so that someone from the Smith family whose family named him John would go by "John Smith". In that case, "family name" and "last name" mean exactly the same thing.

But in some cultures, the family name is first, and the given name is last. For example, North Korean leader Kim Jong-Il is from the Kim family, and his parents gave him the name Jong-Il (I think I've got that reference correct).

Immigration forms normally avoids using the terms "first name" and "last name" for that reason. Kim Jong-Il would say his first name is "Kim", but that's his family name.

There are also cultures which append the mother's surname to the father's surname, but use the father's surname as the primary family name that gets handed down to the next generation. For another example of someone unlikely to ever fill out US Immigration paperwork, Venezuelan leader Hugo Chávez uses his father's surname "Chávez" for most purposes. But his full name is "Hugo Rafael Chávez Frías". Everyone in his culture understands that the "Frías" part is his mother's last name. His children carry the name "Chávez" and not "Frías", and he rarely uses the "Frías" part of his name. But if he had to fill out paperwork asking for his "last name" he might interpret that to mean they wanted him to write "Frías", since that is the final name he writes when he writes his full legal name.

So when immigration forms ask for "family name" you put down the surname that you normally use. It may or may not appear as the final word in your full legal name.

The I-864 is a contract between the U.S. government and your father. It can only be enforced if the immigrant uses public benefits. The U.S. government can then sue the joint sponsor and recoup said fees.

No, INA 213A says the only way an immigrant can be admissible is if the affidavit is enforceable privately by the immigrant against the sponsor. And that's what the language in the I-864 says. Furthermore, that's the only way I've actually heard of it being enforced -- as far as I know, the government has never sued a sponsor.

Google "Stump v Stump" and "Cheshire v Cheshire" for two of the groundbreaking cases.

From the I-864:

What Does Signing the Form I-864 Require Me to do?

If an intending immigrant becomes a permanent resident in the United States based on a Form I-864 that you have signed, then, until your obligations under the Form I-864 terminate, you must:

--

Provide the intending immigrant any support necessary to maintain him or her at an income that is at least 125 percentof the Federal Poverty Guidelines for his or her household size

...

If you do not provide sufficient support to the person who becomes a permanent resident based on the Form I-864 that you signed, that person may sue you for this support.

You can hop over to the citizenship forum for info on citizenship.

But for a quick answer, see the N-400, which is the form you'll be filling out to become a citizen.

http://www.uscis.gov/files/form/n-400.pdf

In Part 2 you have to check a box for eligibility. You'll most likely be checking box B: It says "I have been a lawful permanent resident of the United States for at least three years, and I have been married to and living with the same U.S. Citizen for the last three years, and my spouse has been a U.S. Citizen for the last three years".

When you can honestly check that box (or one of the other boxes in part 2), you'll be eligible for citizenship.

Keep in mind that the term "lawful permanent resident of the United States" is interpreted in immigration context as meaning someone with green card status. And your green card has a "resident since" date that you can use to determine when you will have completed three years as a lawful permanent resident.

See the M-476 for more details on eligibility. In particular, the box at the bottom of page 22 tells how you can send the paperwork in 90 days before you have completed three years with your green card, assuming you meet all the other requirements.

http://www.uscis.gov/files/article/M-476.pdf

Congrats on the green card!

We also looked everywhere for some kind of clarification but were not able to find one. If you do find the statement please do post it. Thanks!

We did it that way. Years ago, there was an attorney who posted that suggestion, but I'd have a very hard time digging up the post. I think he said he got it from an official in the USCIS, but I couldn't say for sure. I haven't found any more official confirmation of that suggestion, except many posts from various VJ members who reported success doing it that way.

I will note that careful reading of INA 319(a) and 8 CFR 319.1 will tell you that the law only allows them to make their decision based on the previous three years, not five, for the matters addressed in those questions. So the three years is definitely what matters. But nowhere in INA 319(a) or 8 CFR 319.1 does it give you permission to mislead or reinterpret the questions the way you think they want them as you're filling out the forms. And the questions very clearly ask about five years, not three.

So if you want to take the form literally and answer for the past five years, you'll definitely be OK. But at the interview, they'll have to figure out the answer for the past three years.

If you answer for the past three years, be sure you make it very clear to them that your answer concerns only the past three years, in order to stay well clear of any possibility that someone could suggest that there might be some misrepresentation issues.

But yes, people here have reported success doing it either way. In fact, I can't recall anyone reporting a problem regardless of how they interpreted those questions.

I wish they'd just revise the form. It would be simple if they would reword things to say something like, "... during the past five years (three years if you checked box B in Part 2) ..."

There is an exception about that cruise ship scenario:

Ooops, I stand corrected. Thanks. I was trying to invent a scenario where you clearly maintained your one and only residence inside the US, but you just weren't physically present there most days. I suppose it could happen to someone who spent three weeks of every month abroad in hotel rooms on business trips, while maintaining one fixed residence in the US where he spent one week per month. Not so likely in practice, but at least theoretically possible.