lucyrich

That's correct - (however) - in your hypothetical situation - this person would have 5 years overstay (and if they left after the AOS was denied) - they still have 5 years overstay (since it took them that long to apply for the AOS), so if they attempted to re-enter the US, they would have a ban to contend with. (from my understanding - any time after the AOS was in process, that is not added to the previous overstay).

Is that a correct read on this Rich?

Yep, assuming they left the US. And they'd probably have to leave after AOS was denied, as removal proceedings would be triggered soon. In this hypothetical, with 5 years out of status time between the end of the I-94 and the beginning of AOS, the question of whether the AOS is approved or denied becomes very important to whether an overstay bar under 9B would be triggered.

Whereas if the AOS was filed before the I-94 expired, there would be no period of unlawful presence and therefore no 9B overstay bar regardless of whether the AOS was approved or not.

Yes, the overstay will be forgiven if the I-485 is approved.

This may be a minor pedantic terminology quibble, but there's really no overstay to forgive, whether or not the I-485 is approved, as long as it wasn't filed frivolously. From the following DoS cable:

http://www.immigrationlinks.com/news/news309.htm

SUMMARY. IN GENERAL, ALIENS WHO HAVE A PENDING APPLICATION TO ADJUST STATUS TO PERMANENT RESIDENCE UNDER INA 245 ARE CONSIDERED IN A PERIOD OF AUTHORIZED STAY FOR PURPOSES OF INA 212(A)(9)(B) ("9B"). THEREFORE, SUCH ALIENS WOULD NOT ACCRUE ANY UNLAWFUL PRESENCE FOR 9B PURPOSES DURING THE PENDENCY OF THE APPLICATION TO ADJUST STATUS.

...

IN GENERAL, ALIENS WITH PROPERLY FILED APPLICATIONS FOR ADJUSTMENT OF STATUS UNDER BOTH INA 245(A) AND 245(I) ARE CONSIDERED ALIENS PRESENT IN THE U.S. UNDER A PERIOD OF STAY AUTHORIZED BY THE ATTORNEY GENERAL. SUCH ALIENS WOULD THEREFORE NOT/NOT ACCRUE ANY UNLAWFUL PRESENCE DURING THE PENDENCY OF THE ADJUSTMENT APPLICATION. THIS RULE APPLIES EVEN IF THE ADJUSTMENT APPLICATION IS SUBSEQUENTLY ABANDONED OR DENIED.

On the other hand, in the hypothetical situation where there WAS an overstay (say, the person entered on a tourist visa with a definite expiration date on the I-94, stayed in the US five years beyond that date, and then filed for adjustment of status), then that overstay would be forgiven on approval of the Adjustment. Or more precisely, Congress didn't provide in the law for any penalty for such an overstay, since the admissibility bar for overstay under 9B only kicks in if the alien departs the US prior to obtaining lawful status.

Anyway, no worries on staying past the I-94 expiration date if you are waiting for the processing of your adjustment of status.

Yep, the moment you leave the US, for whatever reason, you'll have a 10 year bar on re-entry because of the year of unlawful presence you've accumulated. You can avoid the ban by remaining inside the US and adjusting status.

How did you enter? If you entered under the visa waiver program (in other words, if you didn't get a visa in your passport before you came to the US), then your only possible adjustment of status is by virtue of being an immediate relative of a US Citizen. Investor or work-related routes to adjustment of status are unavailable to you. If you entered based on a visa, then other routes to adjustment of status might be available.

If you entered on the VWP, then to get status via some route other than as immediate relative of a US citizen, you'd have to leave the US, get an appropriate visa, and re-enter legally, but leaving the US would cause you to be subject to the ten year bar, so this method would take a very long time.

You may want to consult with an immigration attorney to verify this and figure out a strategy, but I think you've already had basically correct info here.

Oh, and BTW, whether you call it naturalization or neutralization, it's a long way off. A prerequisite to naturalization is getting lawful permanent resident status (a green card). Concentrate on that first. After you've had your green card for a period of time (five years generally, three years if married to a US Citizen), you can think about naturalization, if you meet all of the other naturalization requirements.

The applicant does not have to prove (anymore) that the marriage is bona fide. Thus very little documents are actually requested. All that he has to prove is that they are still married and cohabiting. If they do, there's no reason a N-400 application would be denied on that base.

Sort of right, but there's more to it. In immigration matters, the applicant always has the burden of proving eligibility, and the standard of proof is "via a preponderance of the evidence", that is, more evidence supporting a bona fide marriage than evidence indicating a sham marriage. At N-400 time, the marriage has already been judged to be bona fide, probably two or three times (visa time, AOS time, I-751 time). So there's already a pile of evidence supporting the bona fide marriage, and little to no evidence against it. So normally, nothing more needs to be done. The preponderance of the evidence already indicates a bona fide marriage and that matter is normally already settled.

However, if, at N-400 time, some new evidence somehow enters the record that would indicate the marriage was a sham, then that can be a serious problem. They officers may follow up and investigate. If they conclude that the marriage was not bona fide, then not only is the naturalization in jeopardy, but the green card is, too. The alien can lose the green card and be deported, probably with a finding of misrepresentation on his record that would lead to a permanent ban. That won't happen easily -- it'll have to be much more than just one officer's hunch to reverse the decision that's already been made a few times saying that the marriage was bona fide. There would be some extensive legal processing involved, and if it looks like things are starting to head down this path, you need a good attorney.

Anyway, that makes me wonder about the original question. Is this a hypothetical question? It's not at all common for the bona fide nature of the marriage to come up at N-400 time, though I vaguely remember someone reporting some issues in this area here on VJ several years ago. Anyway, I can't imagine that the N-400 would be denied on this ground without ALSO causing serious issues around the green card, deportation, and a misrepresentation finding. If that's what's happening, you need serious help, not just from VJ.

Even though you've decided what to do, I'll point out that your lawyer was exactly correct, assuming she had that much out of status time.

USCIS Link

The issue is the 180 days of unlawful presence time. That much out of status time triggers a 212 a 9B bar. The AP doesn't help against that grounds of inadmissibility (and they will issue the AP without verifying whether or not you're inadmissible under 9B). From the link above:

Note:

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, aliens who depart the United States after being unlawfully present in the United States for certain periods can be barred from admission to lawful permanent resident status, even if they have obtained Advance Parole. Aliens who have been unlawfully present in the United States for more than 180 days, but less than one year, are inadmissible for three years; those who have been unlawfully present for one year or more are inadmissible for 10 years. Aliens who are unlawfully present, then depart the United States and subsequently reenter under a grant of parole, may still be ineligible to adjust their status.

If she traveled with AP, she'd be denied re-entry at the border, and you'd have to start over and apply for a new visa, and then the visa would be denied and you'd have to apply for a waiver of the 9B bar. See the waivers forum for details and a sample of the tribulations you'd be subject to.

Voter registration in most states is handled individually by county, even though the rules are set by the state.

My guess is that the county registrar of voters (or whatever they call that office in your county) probably doesn't put really high priority on processing voter registrations during "off-times". If no election is coming up soon, then they may be a bit slow on processing things, and it doesn't really matter much until an election comes around, anyway.

Note that, depending on your state, you may have to register a certain time period in advance of an election in order to vote. A 30 day advance registration requirement is common, but not everywhere. So, for example, the voter registration office might be pretty busy in Sept/Oct before a big November election.

Since they say to contact them if you haven't heard from them after 30 days, and it's already been longer, then I'd go ahead and contact them. A mixup with physical and mailing address certainly sounds like a possibility.

The question asks "Have you EVER been cited, detained, ...". The instructions say that you have to provide documentation for most charges, but there is no need to attach separate documentation for most minor traffic tickets. It doesn't say you don't have to report them.

With a few minor traffic tickets, the tickets themselves won't cause a problem for naturalization. So the only concern is making sure you stay well clear of any possible charge of misrepresentation, because misrepresentation can be extremely serious. You could attach a sheet that basically says exactly what the first post in this thread says.

A further note: It is possible to abandon residence even with a trip of less than six months. It's just that, with less than six months abroad, they'll assume you didn't abandon residence unless some other evidence comes into the record that indicates you did abandon.

Also, failure to file taxes when due is an indication that you are abandoning residence, so remember to file those taxes!

From the USCIS "maintaining your permanent residence" page:

You may be found to have abandoned your permanent resident status if you:

* Move to another country intending to live there permanently

* Remain outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether your status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year

* Remain outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. However, in determining whether your status has been abandoned any length of absence from the United States may be considered, even if less than 1 year

* Fail to file income tax returns while living outside of the United States for any period

* Declare yourself a “nonimmigrant” on your tax returns

When you walk out of the oath ceremony, you are a US citizen who hasn't yet obtained his first US passport. The fact that you happen to hold another nation's passport is irrelevant to US law. Like any other US citizen in this situation, you've got to get a US passport before you can legally cross US borders.

I'd suggest rescheduling either the travel or the oath, whichever is easier.

Prior rejections will have no effect on the outcome of this visa

That depends entirely on the reason for the rejection. If the reason was failure to prove sufficient ties to the home country (failure to prove non-immigrant intent), then you're right, a prior rejection will have no bearing on a fiancee or marriage-based visa, because fiancees and spouses don't have to prove non-immigrant intent. And that's a common reason for visa rejection. But if the prior rejection was due to misrepresentation, a crime, or some other grounds of ineligibility, then it may be a show-stopper. Some grounds of inadmissibility have waivers available, others don't.

So find out the exact reason for the rejection if you don't already know. If it was anything other than failure to prove non-immigrant intent, seek competent help (either here or from an attorney). If it was failure to prove non-immigrant intent, don't worry.

Tbone, do you think this is a miranda rights issue...ie they were saying she faced charges but refused her representation?

Miranda Rights are only violated if they are not read to someone if they are actually arrested.

Not necessarily even then.

The Miranda decision just says that, while you are in custody, before they take your testimony that may be used against you in a criminal case, they've got to inform you of your fifth amendment rights against self-incrimination, and your right to legal representation, etc..

If they fail to properly inform you of your Miranda rights, then any self-incriminating statement you make can't be used against you in a criminal case. In other words, even if law enforcement officers really screw things up and commit an egregious violation of the intent of the Miranda decision, the most extreme remedy available is that the testimony which you gave can't be used against you in a criminal case.

That doesn't mean that the testimony or confession can't be used in an immigration context. Applying for an immigration benefit is a civil matter, not criminal.

Due to your overstay you can no longer use the VWP (ever). Your only option now if you want to visit again is to apply for a B2 visa.

Exactly right.

http://www.cbp.gov/xp/cgov/travel/id_visa/...ure/vwp/vwp.xml

Q: Who Is Eligible to Use the VWP?

A: To qualify for admission under the VWP, you must:

... skip a few criteria -- see the link if you're intested ...

* Not have failed to comply with the conditions of any previous admission under the Visa Waiver Program;

...

Once you overstay once on the Visa Waiver Program, you're permanently ineligible to use it again.

You're eligible for a B2 visa theoretically, but you may have a hard time proving non-immigrant intent.

She can't stay. INA 245(d) says that a K-1 can't adjust status except on the basis of a marriage to the original petitioner. There have been a few sad postings here on VJ of people who fell in love with someone who had entered years ago on a K-1, never married the original petitioner, and stayed illegally. Such a person's status can't be saved even by a bona fide marriage to a USC.

There may be some delay tactics possible, but they're just delay tactics. If she only wants a delay tactic, she could probably go underground and hide out illegally for a year or so before ICE would catch her and deport her (not that I would recommend such action).

She should keep in mind that if she accrues more than 180 days of illegal presence, she'll be subject to a three year bar on admissibility if she ever wants to return to the US. If she accrues more than one year of illegal presence, she'll be subject to a ten year bar.

If, as a delay tactic, she files for something for which she is clearly ineligible, it will become a part of her immigration record. If she ever wants to get a future visa to come to the US, that kind of record of filing frivolous paperwork as a delay will make it exceedingly difficult to convince the consular officer that she's pursuing the visa because she's in love, instead of pursuing the romance because she wants the visa.

One interesting aspect of the original linked article is that it doesn't appear to make a distinction between what the law says and how it is enforced.

US immigration law already has some of the provisions that are called out as admirable in Mexican law. For example, nobody is admitted who will become a public charge, they won't allow people in who have criminal history or certain previous immigration violations.

But a problem is that while these provisions exist on paper, they aren't always enforced in fact. And of course, there's one thing which almost everyone agrees is a problem with US immigration law and policy: the fact that people who want to come here but don't meet the criteria to do so legally often come here anyway regardless of the law. Once they're here, they find it possible to live "under the radar" without documentation, and many do so for years, even decades. For some, there's a "revolving door" of deportation followed by illegal re-entry.

This won't be solved by changing our immigration law to give preference to British Nationals or those from other English-speaking countries, to call out one aspect of Mexican law that was lauded.

I don't know how much of a problem Mexico has with illegal immigrants. But the economic and cultural situation is different enough that, even if Mexico has founds her perfect ideal solution to her own immigration problem, that's no guarantee it will work here.

I did like the idea that Mexico says that naturalized citizens are ineligible to become governor of a Mexican state. Perhaps California should consider adding a similar provision to their list of gubenatorial qualifications.

From the bold print above, apparently the USCIS or the old INS does have a two year statue of limitation on the way you have answered your questions,

That's true for administrative denaturalizations, that is, denaturalizations performed strictly by the USCIS (a part of the executive branch). But I believe no such time limit exists for judicial denaturalizations. For example, I believe they have denaturalized former Nazi war criminals after they had lived in the US as citizens for decades. The judicial process is more involved for them than the administrative process, but they will use it occasionally.

It's an interesting catch-all.

After you have been naturalized, the US Government cannot take away your citizenship without your consent. See the Supreme Court decision Afroyim v Rusk for details.

But, if they find that your citizenship was procured through fraud, that is, if they find that you lied or made a material misrepresentation at any time during the naturalization process, they can retroactively denaturalize you. That is, they say you were never really properly naturalized in the first place. That's almost the same as taking your citizenship away, but with two important distinctions 1) it's saying you never had the citizenship to begin with and 2) it has to be based on something that happened before your oath, not something that happened after you became a citizen.

Hypothetically, let's assume you had been committing serious crimes like spying, smuggling, mass murder, etc. but you hadn't been caught, and then you were naturalized, answering "No" to that question. Many years later they might catch you. They could use your false answer on that question to justify denaturalizing you and deporting you. They might be able to do that even if the statute of limitations for your crimes had expired, or if there were other legal issues that prevented them from getting a criminal conviction.

At least theoretically, if you answered "No" to that question and they later found evidence that you had been speeding or jaywalking before you were naturalized, they might be able to try to use that to denaturalize you as well. However, for a minor thing like speeding or jaywalking, the chances of them finding convincing evidence years later is slim, and even if they did, a false answer regarding speeding probably wouldn't rise to the level of a "material misrepresentation". So I wouldn't worry about it for minor things like that.

There are some interesting legal issues regarding the fifth amendment right against self-incrimination. I wonder what would happen if you said "Yes", but then when they asked you about it at the interview you said, "I refuse to answer on the grounds that it might tend to incriminate me".

Or, I wonder what would happen if you answered "Yes", and then at the interview you said "I don't know any specifics, but there are so many laws about so many things, I think I probably must have violated one of them sometime". I'm guessing that wouldn't insulate you against a previous armed bank robbery, because your vague answer was intentionally misleading. It might insulate you against them coming after you about an old jaywalking incident, but they wouldn't do that anyway.

He wants to travel for a short time in Korea (where we met). Does he need to fill out anything before leaving?

As long as he has the necessary entry visa to Korea and it is a short visit, then he will be able to re-enter the US with his passport and green card.

What about getting a re-entry visa to the US?

Not needed unless he's staying away more than two years, in which case you should do a search on "returning resident visa". If he's staying out for more than 6 months there are some precautions he should take to maintain his permanent resident status. But if he's just leaving the US for a short (less than 6 month) vacation, there's nothing special he needs to do as far as US immigration is concerned. He'll use his passport and green card to re-enter. If he doesn't yet have the plastic card in hand, make sure he's got a stamp in his passport that indicates he's been admitted as an LPR.

Once "Person X" becomes a US Citizen, they immediately have all the rights and privileges that come with Citizenship, including the right to petition for someone else to immigrate. There's no waiting period.

There IS the issue that Person X's actions might (or might not) indicate that they used the original marriage for the purpose of obtaining an immigration benefit. If new facts come to light that would cause the USCIS to believe that Person X's green card and subsequent naturalization was procured through fraud, misrepresentation, or concealment of a material fact, then the USCIS can retroactively cancel the naturalization and deport Person X with a lifetime ban. That's not quite the same as taking away their citizenship; it's a retroactive statement that Person X was never really a US Citizen in the first place. So Person X never had the right to file an immigration petition for the new spouse, among other things.

Whether it looks like fraud or a legitimate change of heart is going to vary depending on the specific facts.

Also:

"9 FAM 40.41 N5.2 Defining "Sponsor"

(CT:VISA-1126; 12-03-2008)

a. To qualify as a sponsor, an individual must be a natural person (not a

corporation or other business entity) who:

... snip some stuff

(3) Filed the petition which forms the basis for the visa application (or

has a substantial interest in the entity which filed the petition); and

... snip some more stuff

So the OP is well within his rights, anyone who is willing and meet the above criteria may be a sponsor (at their own risk of course!)

Look at criterion 3. The petition filer must be the immediate relative who signed the petition and whose relationship with the beneficiary establishes a basis for immigration. If you find an uninterested third party and pay them a fee, that doesn't make them meet criterion 3.

Christine Gregoire had "insulted Christians all over the world” when she "allowed” a Winter Solstice display to stand next to a Christmas tree and a Nativity scene in the state’s capitol building.

Uh, the Christmas tree is already an abomination according to the Bible. I challenge anyone to find Biblical support for the idea of bringing a tree indoors and adorning it with lights and ornaments. In fact, it's a tradition that dates to long before the time of Christ. Jeremiah (of the Old Testament, before Christ) tells us that the LORD prohibits the practice.

Thus saith the LORD, Learn not the way of the heathen, and be not dismayed at the signs of heaven; for the heathen are dismayed at them. For the customs of the people are vain: for one cutteth a tree out of the forest, the work of the hands of the workman, with the axe. They deck it with silver and with gold; they fasten it with nails and with hammers, that it move not.

As long as the Capitol building has already been thoroughly defiled by that pagan tree abomination, what's the harm in adding a little cheery Winter Solstice display?

A transcript comes from the IRS government office. You can order them by calling 1-800-829-1040. They're free. They're smaller than your actual return, because it's a computer printout without all of the text and blank space that's on a printed return.

A tax return would just be a photocopy of what you mailed to the IRS. You would make it based on your records.

http://www.irs.gov/individuals/article/0,,id=110571,00.html

but fast a question, do i need to send this papers with my N-400 application???

i meant the Joint tax returns ??

See the document checklist at the back of the M-476

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

If you are applying for naturalization on the basis of marriage to a U.S. citizen, send the following four items:

... deleted items 1 - 3 ...

4. Documents referring to you and your spouse:

• Tax returns, bank accounts, leases, mortgages, or birth certificates of children, or

• Internal Revenue Service (IRS)-certified copies of the income tax forms that you both filed for the past three years, or

• An IRS tax return transcript for the last three years.

So you might want to send transcripts instead of the returns themselves, but if you're applying based on marriage, they'll want you to send the tax information in one form or another.

It's probably best to go through that entire document checklist at the back of the M-476 in detail to make sure you've got everything they want.

A spouse is NEVER a dependent for tax purposes. See here:

http://www.irs.gov/publications/p501/ar02....ublink100041821

And scroll down to where it says "Your Spouse's Exemption". The paragraph has one sentence, "Your spouse is never considered your dependent".

If you mean instead that he claimed your exemption, then the two of you should have filed as married, filing jointly. That would probably have been the most beneficial way to file anyway, especially if one of you had no income, because the tax rates are lower.

Anyway, if the two of you filed joint returns, definitely send them in, just like the M-476 checklist tells you to. In fact, follow the M-476 checklist regardless of how taxes were filed (but if they were filed incorrectly, you may want to see about filing amended returns). The fact that you personally show no income on the joint return doesn't matter.

I think it will be in your own interest to wait until you I-751 is approved. If you file N-400 and a decision is not made yet on your I-751, your N-400 will be denied.

All the best.

That is simply not true. Kathryn41 already posted the relevant cites to the AFM and USCIS memo which indicate the real policy. Furthermore, INA 216(e) explicitly says that conditional permanent residence must be treated exactly the same as unconditional permanent residence for the purposes of naturalization, so there would be no legal basis for such a denial.

so these are both affidavits of support but are required at different stages of the process. what I need to know is - does the I-134 have the same 10 year obligation that the I-864 does? Or is it just an interim thing until AOS and I-864 is processed? Also, do we need to meet the 125% of the poverty line for the I-134 or only the I-864?

Argghhh, confused!! lol

Note that neither the I-134 nor the I-864 has a ten year obligation. You can read the forms here:

http://www.uscis.gov/files/form/I-134.pdf

http://www.uscis.gov/files/form/I-864.pdf

The I-134 is for the duration of nonimmigrant stay. The I-864 terminates only when one of the terminating conditions is fulfilled. The passage of ten years is not among the terminating conditions. See the I-864 form Part 8, and search for the heading "When will these obligations end?".