Teemo

7 minutes ago, otedes said:

@old-fella

1 and woman 1 relationship started in 2007. we never had a legal marriage and she travelled to Europe in 2009. While she was still outside the country, I filled a dv lottery for 2011 and 2012 fiscal year and she was selected. So I became a beneficiary. I suggested that she comes back for us to register the marriage with the civil authority. Initially she agreed to come back. This made us filled form ds 230 part I and Part II while she in Europe .  Then we mailed  the completed forms to kcc. After some months later, kcc sent an email notification that it has completed processing our case and should get prepared for the interview in Accra,Ghana on January 4, 2012 . I informed woman 1 to come back and she refused. That was when our relationship ended. So we never attended the interview.

I met woman 2 through sister in law of woman 2 in 2014 and we got married in 2015 on her first visit . Sister in law of woman 2 marries woman 2 cousin in London. Sister in law of woman 2 is my colleague worker. Uncle of woman 2 who is a citizen of USA came to witness the marriage as well as the cousin in London. Both local families of I and woman 2 also witnessed the occasion in a grand style. Woman 2 filled for me and I went for interview in 2016.

Co asked me that I have married before and said no. Then she mentioned woman 1 name who was she to me and I answered she was my girlfriend. Before I realized she has refused the visa with no legal marriage remarks and she didn't allow me to explain further.  

I have no child with woman 2.

Woman 2 had married before but divorced. 

Woman 2 filled the petition in United States.

Thanks for your patience.  

 

Some of your circumstances are suspect. I really hope for your sake this is a real marriage for love, you should be assured that if it is a sham marriage for papers, it will be found out at some point in the process and the penalty can be steep. 

Good luck in whatever you decide. 

6 minutes ago, otedes said:

@Teemo

My wife's sister in law is not a US citizen neither does she live in the United States. She is my colleague worker.

So your wife's brother is married to your colleague? And that brother is a US citizen? And does that brother live with your colleague in Ghana or is he in the US and petitioning her?

Sorry it's late, if I'm wrong, please clarify who are the US citizens and who do you originally know. I have a point here. 

Just want to reiterate that the case being expunged does not matter for immigration purposes, the government can always see an expunged case even if private employers can't

Yes get certified copies and always have one on hand when you enter the country (I'm assuming you're the beneficiary, ignore if you're the petitioner)

4 hours ago, otedes said:

In the old petition we met first time and got married. 

She was introduced to me by her sister in law 

My wife is in US and I am in Ghana 

Also I have to ask. Is your wife's sister in law a US citizen who also married a Ghanian and went through this process?

4 hours ago, Jojo92122 said:

You need a lawyer.  A good lawyer.

 

You lied for an immigration visa with your ex-girlfriend for the DV.  You committed immigration fraud which may mean you never will qualify for any visa.

 

How do you divorce a girlfriend?

 

You have seriously screwed yourself.  This is not a DIY.  You need professional help.  You need a really good lawyer to get over your fraud.

Well he was denied for "No legal marriage" not for fraud/misrepresentation. 

I agree it's a head scratcher but I'm not so sure fraud/misrepresentation will even come up, given that from the US perspective he was married, got married again, got denied a visa for not having a legal marriage, divorced the first one (legally somehow), married the 2nd one (again), and then applied for a CR1 again. That sequence is absurd and I don't like the OP's decision making or judgement, but I think it just might pass muster. 

Unless of course they ask for the marriage certificate for the first "marriage" haha...then back to square one. 

Obviously OP should always tell the truth but he now has a "divorce certificate" to the 1st wife and a legal marriage to the 2nd wife so maybe his chances are decent since the reason for the denial is now fixed. 

You haven't met yet and will meet in 1 year? (you say Summer 2018 but you mean 2019?)

From an immigration standpoint CR1 (spouse visa) is better option, it is a little cheaper then doing K1 and then adjustment of status in the US, and a marriage is a stronger bond than a fiancee in terms of chance of success with getting the visa. It is taking like 10 to 14 months I think for that to be processed. Then when he comes to US she gets the green card in the mail right after and does not have to apply for it which is another lengthy process in the US called adjustment of status.

The fact you have not met yet and will presumably be marrying (or getting engaged) on the first visit are classic "red flags" that invite higher scrutiny, but it can be overcome with substantial evidence of a bona fide relationship. Easier said than done because you won't have many of the things spouses often have like shared bank account, shared lease, lots of time spent together, family meetings, etc. I'm sure others who are more familiar with this situation from a personal standpoint will chip in. 

Of course, you are aware she cannot get a K1 fiancee visa if you cannot prove you have met within the last 2 years. 

Authorized stay means exactly that - you are authorized to be here. You're good. 

I can't use this site on my phone either. 95% of the time, within the first 2 minutes,  it takes to a (fake) Amazon page where it says I have won something and I h have to close the whole window. 

1 hour ago, geowrian said:

1. Since he is still technically an LPR until the immigration judge determines otherwise, and it's been less than a year since he left, if he can get on a plane then he may be able to enter the US as an LPR still (possibly getting a boarding foil at the embassy if he can't board a plane due to the green card being expired). He would then have to deal with the proceedings, file an I-751, etc.
   1. There is a risk of being paroled or detained instead of just admitted an LPR...especially since he is pending proceedings and it sounds like he had actually taken up residence abroad, even if only for months.
   2. No I-130, visa, or AOS would be needed here, and at the end, if everything goes well, he would get a 10 year green card.

On second thought, yes I think if you can convince a carrier to take him, the US will almost definitely let him in the country, after giving him a hard time at secondary processing. But they will defer to the judge to have the LPR removed and someone deported, since he has been out of the country for less than a year. If it was more than a year I think they would just not let him in. So yes he would probably be paroled and referred to a judge, but with a pending ROC and intention to live within the US it should be a compelling case. And it's kind of nice you already have a court date already so you can move forward with a more definite timeline.  

1 hour ago, taramarabobara said:

Please help me, I have no idea what to do.  In 2015, my husband came to the US from the UK on a K-1 Fiance Visa.  We got Married, and his AOS was in November, 2015.  A few months before his conditional greencard was due to remove the conditions, we decided we wanted to move to England.  His greencard expired November 26, 2017, and he left the US on November 17th, 2017, without removing the conditions on his greencard, since we were moving to England.  Fast forward a few months, in April 2018, we decided we did NOT want to move to England.  So, I filled and sent in I-130 for a spousal visa.  Here's where I need help.  On Monday, he received a Notice to Appear from USCIS for removal proceedings.  He left before his greencard expired, but they think he is still in the US?  I don't know what to do.  This could really throw a kink in getting our spousal visa, I need to let them know he left the US while he was still a permanent resident, do I call them?  Write a letter?  Where would I mail the letter?  The summons came from the Vermont Service Center.

I wonder if there is a way he can keep his greencard if it expired just 8 months ago? Like, maybe file for removal of conditions now then show up to removal hearings stating where you are in the process with your receipt? Not sure if that's impossible. 

@geowrian will have a more informed opinion than me on this.  EDIT: just saw he addressed this in his post above

Btw there are way too many stories on here of people moving back to their home country and then later regretting it and wanting to move back.  Clearly it's too late for your situation now, but my general comment to anyone reading this is that there should be a lot more forethought and planning - for instance he could have applied for a re-entry permit that would allow him to be outside the country for 2 years, which gives them time to decide which country is their long-term future. 

4 hours ago, PollyC said:

 

hahaha right. it's a waiting game.

 

Since my tourist visa valid till Mid-Aug, but is it mean I can stay in the US even if it expired? 

Once you file a valid I-485, you are in "authorized stay" so your end date on the I-94 effectively does not matter. Just don't leave the country without receiving advance parole. 

Just now, geowrian said:

As noted, it's certainly possible. But I've also seen a number of petitions denied under this section of the law, but then approved when filed right after the 5 year period and the visa was issued. It's a higher bar than ROC for sure.

I guess that my presumption is a real & meaningful relationship will clear just about any bar for proving a bona fide relationship, as long as one gets their ish together.  So that does not appear to be a "very high" bar to me, but I guess if you are comparing it specifically to ROC then I get what you mean. 

On 6/9/2018 at 10:53 PM, Joy&Fred said:

He did go to DGME in San Salvador but the paper takes 5 business days to process. After that, he can send it to the US embassy but who knows how long it will take to get approved. My children are crying everyday for him and I can't even tell them when he will be back, and it is so hard for them to understand why he cannot. This is so unfair to them.

I'm sorry your process feel so torturous. That said, 5 business days is like a blink of an eye in terms of immigration timeline. Some things take weeks and weeks. So be thankful that within 5 days you can be that much closer to possibly the very end of the process. 

35 minutes ago, geowrian said:

Given that, if you file for a new spouse within 5 years of obtaining your green card then there's a presumption of fraud and the I-130 will be denied. It can be overcome, but it's a very high bar.

https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-4484.html

" Marriage within Five Years of Obtaining LPR Status .

Section 204(a)(2)(A) of the Act generally prohibits the approval of a visa petition filed by a lawful permanent resident for a spouse within 5 years of the date on which the petitioner became a LPR if that LPR obtained his or her residence status through a prior marriage. The LPR can overcome this prohibition if he or she establishes by clear and convincing evidence that the prior marriage was not entered into with the purpose of evading the immigration laws, or that the prior marriage ended through death. 8 CFR 204.2(a)(1)(i) specifies the type of evidence which the petitioner must submit to meet the clear and convincing standard. If the petitioner falls within this restriction and has not submitted the requisite evidence, send him or her a letter explaining the deficiency and requesting additional evidence. If satisfactory evidence is not submitted within 60 days (or 120 days if the petitioner has requested and been granted additional time), deny the petition."

Doesn't appear to be too high a bar IF both relationships are indeed bona fide

1 minute ago, Boiler said:

Tax and Immigration are different issues.

Exactly my point. He's asking about tax issues. Different than immigration issues. 

Just now, Boiler said:

He made various statements.

 

As an aside the US taxes residents on their worldwide income.

All to determine his tax obligations.

He is not a US resident. Not in immigration terms anyway. 

16 hours ago, Michael2017 said:

Hi,

 

I have a question in regards to taxation in the USA. Let`s assume following situation:

 

 

a) A German National can visit the USA on ESTA for extended periods during the Visa process. In fact, 5-6 months is not a problem per year with enough breaks inbetween.

b) On the 3. year, before receiving the green card, the German national passes the substantial presence test, as outlined by IRS:

https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test

c) However, the person has never worked in the USA, or received payment from US sources. All income is generated during the time outside the USA back home in Germany.

d) While passing the substantial presence test, the person has never spend more than 6 months in a year in the USA. Therefore, based on the double taxation treaty of the 

two countries, the person would NOT be a tax resident in USA and would not own taxes on non-us source income.

 

You can not claim under US law a close connection to a foreign country during a green card process:

https://www.irs.gov/individuals/international-taxpayers/conditions-for-a-closer-connection-to-a-foreign-country

 

When You Cannot Claim Closer Connection to a Foreign Country

You cannot claim you have a closer connection to a foreign country if either of the following applies:

• You personally applied, or took other steps during the year, to change your status to that of a Lawful Permanent Resident, or
• You had an application pending for adjustment of status to Lawful Permanent Resident during the current year.

 

 

What prevails? The substantial presence test of the IRS or the double taxation treaty?

 

In my opinion, the Non Resident Alian will be required to submit a tax return in the USA once he passes the substantial presence test, but would not be subject to taxation

based on the double tax treaty. Please confirm / disconfirm.

 

 

This appears to be a tax question, not an immigration question. @Boilerhe is not asking about immigration consequences but tax ones. 

Generally speaking, if you don't do any work in the US and are not a US citizen you would not be paying any US taxes. 

OP - I'm assuming you have filed I-130 but not I-485, correct? In that case my guess is this does not count as "taking steps to change status to LPR." That would be reserved for the I-485. I-130 by itself just establishes the familial relationship between a US Citizen/LPR and an alien. If filed alone, it is not considered a step of the process to adjust status even though of course it is EVENTUALLY needed as part of the process to adjust status. For example, many people who entered the US illegally have approved I-130s but cannot begin any process to adjust status since they are not permitted to file the I-485. 

If you have filed I-485 then yes you would be in the unusual case of not having earned income in the US but needing to pay US taxes. But then you would not be entering on VWP for so long. 

Might be worth getting a tax lawyer on this one if I haven't got your specifics right. 

7 hours ago, Going through said:

Did she enter the country with inspection?

 

If not, then yes there will be problems.

Usually the terminology "out of status" refers to people who have entered lawfully and overstayed a visa - assuming this is what OP means then yes her overstay is forgiven. 

5 hours ago, Cyberfx1024 said:

I have heard of people using the Russian passport to go over there and the US passport to go back.

 

Edit. I have only seen this on hear and do not have first hand experience with it.

Yes you can use one passport for the outgoing trip and another for the incoming one. My brother has three citizenships and does this multiple times a year. 

@Bill & Katya But the concern here is that the ticket will be either in one passport's name, or the other. So that means for one leg of the journey, the ticket won't match the name on the passport. Yes, I think this COULD be an issue.

One possibility to avoid this is to buy two one-way tickets and make sure each ticket matches the name of the passport she is using for that leg. Ie ticket to Russia matches the Russian passport, and ticket to the US matches the US passport. 

4 hours ago, Nitas_man said:

You can't enter and exit the US on a foreign passport if you are a USC

One can use the Russian passport to enter Russia and the US passport to enter US. You only need to show passport to exit the country to 1) prove identification and 2) prove you are authorized to enter the country you are flying to. So yes, she can do use Russian passport to exit the US to Russia

18 hours ago, Jlacuesta said:

We can't even travel overseas!  His Philippine passport just expired and I need to contact the Philippine Embassy here is SFO to find out if he can renew even though he does not have his permanent greencard yet.

He has advance parole right? If so that (and his valid passport) is all that is needed to re-enter the US. 

EDIT: I thought he was applying for adjustment of status, not removal of conditions on permanent residency

30 minutes ago, Jojo92122 said:

I know where you're going.  You like to give people advice on how to violate the law because you don't think they will get caught.  

 

You are interpreting "cause for concern" as "will I get caught."  

 

I gave an answer in accordance with the law.

 

It's your prerogative to rely on people not getting caught, not mine.  You don't mind advising people to break the law because you don't think they will get caught.  

 

I don't know if the OP should have "cause for concern" or not because I'm not that person.  I know what the law says about unauthorized work and that is what I answered.

 

If you want to tell people not to worry about breaking the law because they have no "cause of concern" about being caught, then that's you.  Not everyone else here.

I don't give advice on how to violate the law. If I did, I would be banned by the moderators for violating ToS. I have not been banned by the moderators. I don't appreciate this libelous accusation. 

But you are purposely giving only the first half of OP's answer. I think he should get both halves of the answer. And the 2nd half of the answer directly addresses the "cause for concern" query and specifically addresses the consequence of unauthorized employment on his pending AoS through spouse. 

And that answer is, while I agree with @geowrianthat "anything illegal" is cause for concern, unauthorized employment, while I am not condoning or encouraging it, is forgiven by USCIS when receiving AoS through immediate relatives. You don't like that, take it up with your senators and congressman, don't blast me for pointing out LAW and that FACT.  And I mentioned nothing about whether I think he will get caught or not - he will attend an interview with USCIS and he will truthfully answer the question if asked, and he will be "caught." Where am I advising how to not get caught?

OP - while, by law, USCIS may forgive unauthorized employment, apparently @Jojo92122 does not forgive it. Up to you to decide if you can live with that or not. 

17 hours ago, geowrian said:

Yes, if producing the items then selling them then it's not allowed as well.

 

Agreed.

The original question included "is this cause for concern?"

I think you only answered the question of whether it was unauthorized employment or not, can you and/or @Jojo92122 please extend your answer and directly address the "cause for concern" part?

You know where I'm going with this

5 minutes ago, Dee elle said:

Entering with VWP would have required  return ticket. 

As said this is a very emotionally charged area.. and for understandable reasons.. but, as stated, the act of AOS after entering is currently a legal avenue and is hence available to the OP. People have different feelings about whether this route should remail possible.. so as said.. talk to your Congressional representatives and vote for the changes you feel should be made.. on a similar vein.. some of my vj colleagues feel that removing the IR5 catefkry fkr USC parents is important.. as we came kver on that visa, i have a different opinion and will strongly defend my use of that legak avenue.. if it changes, so be it.. immigration is a privilege nit a right 

Your 'o' key is broken

1 hour ago, harhad said:

I want to know which one of the 3 methods (i.e A. Call USCIS and ask to speak to tier 2 representative B. Make an infopass appointment C. Submit a service request ) will be the most suitable to be able to explain and better put across the matter of the financial hardship that I am going through

I think all 3 are suitable. You can attempt all 3 concurrently, and if one works faster than the others, cancel the other two. You can put in a service request now and call USCIS now 

10 hours ago, geowrian said:

The I-130 will be adjudicated regardless of his criminal record or being incarcerated. However, if she filed for AOS (via an I-485 concurrently) as well, then they will adjudicate on their timeline. Since he won't be able to attend the interview, I'm assuming that application will be denied. If an I-485 was not filed yet, then the I-130 will just continue to process but he won't be able to act on it to do the visa process anytime soon. He would also have accrued unlawful presence in excess of 1 year, resulting in a 10 year bar on any visa upon exit from the US.

 

He needs a very good immigration attorney at a minimum, as well as a good criminal attorney. This is not a DIY case.

 

What was the exact crime he was convicted of? A DUI alone is not a bar for immigration purposes, but getting a sentence of years of prison just for a DUI would be highly unusual. I'm assuming he was also charged with some sort of other crime as well (likely a felony, such as aggravated DUI). Accordingly, the criminal offense is very likely to be considered a CIMT based upon the circumstances. Again, a DUI is not a CIMT itself, but depending on the circumstances it can be one...given the result of his actions and the associated sentence, I would assume they found his actions to be in moral turpitude. I would expect immigration officials to treat it as least as harshly.

 

As noted above, the most likely result is he will be released to ICE and removal proceedings started.

 

All of the above inadmissibilities are waivable, and it's not impossible for a Cancellation of Removal (CoR) either. But honestly, I think the chances are extremely slim in his case. This is where a good attorney would help to set the record straight. I'm not a lawyer and this is not legal advice...but I think they should seriously consider plans for living outside the US together upon his release.

Once the removal order is issued, USCIS no longer has jurisdiction on the I-485, the courts do. I'm not sure at what point in the timeline it will be issued, will it be during or after his prison time?

A DUI that injured someone will almost undoubtedly be seen as a CIMT.

At some point he will appear in front of an immigration judge. One option is to ask ICE to exercise prosecutorial discretion and not spend the resources to have him deported. But with a felony vehicular assault and so much jail time, he will be considered a threat to public safety, so there will be close to a 0% chance ICE will do that. But with a USC wife and child, not a 0% chance I guess.  

https://www.nolo.com/legal-encyclopedia/which-undocumented-persons-are-helped-by-prosecutorial-discretion.html

11 hours ago, Teemo said:

Tragic and painful situation on all sides.

 

Unfortunately, upon release, he will almost definitely be released straight into ICE's hands who will summarily deport him. 

Still my POV