russian_armenian

October 9, 2008

http://www.uscis.gov/propub/ProPubVAP.jsp?...3187569d01e667a

It is the further position of the Service that, where a petitioner and spouse do not live apart by choice, or because of a legal separation or marital difficulties, but solely as a result of circumstances beyond their control, such as service in the armed forces of the United States or essential business or occupational demands, such separationeven when prolongeddoes not preclude naturalization under this section.

October 9, 2008

Many questions here about it. Read the actual law below. Source http://www.uscis.gov/propub/ProPubVAP.jsp?...3187569d01e667a

-----

The absence for a continuous period of one year or more which causes a break in the continuity of residence must be one that falls entirely within the statutory period. Continuity of residence or a break therein outside the statutory period is not relevant to the residence requirements for naturalization. ( Added )

Consider, for example, a lawful admission for permanent residence on June 1, 1953, a five-year statutory period extending from January 3, 1956, to January 3, 1961 (when the petition is filed), and a continuous absence from January 1, 1954, to January 1, 1957. While the petitioner has been absent continuously for three years, his absence during the statutory period has been for less than one year (i.e., January 3, 1956, to January 1, 1957). Consequently, no break in the continuity of residence has occurred, the petitioner's continuous residence is regarded as having begun on June 1, 1953, the date of his lawful admission for permanent residence, and he is eligible to file the petition on January 3, 1961.

On the other hand, assuming that the above petitioner had been continuously absent from January 1, 1954 to February 1, 1957, his absence during the statutory period would have been for more than one year (i.e., January 3, 1956, to February 1, 1957), the continuity of his residence would have been broken, and his continuous residence for naturalization purposes would be regarded as having begun on the date of his return, February 1, 1957. This does not mean, however, that the petitioner must accumulate a ful l five-year period of continuous residence beginning on February 1, 1957, before he can file his petition; rather, since he can be continuously absent for as much as 364 days during the statutory period without breaking the continuity of his residence, he may file the petition four years and one day following his return on February 1, 1957. Similarly, where the case is one involving a three-year statutory period, the petition may be filed two years and one day from the date of the reentry, after the extende d, breaching absence.

--Consequently, by virtue of the above definitions continuous residence in the United States ceases when the applicant is actually absent therefrom beyond the statutory limits of permissible absence, even though residence or domicile 31 / in the United States can be spelled out from the absentee's intent to maintain and return to his residence therein. While such intent is no longer a factor under the circumstances stated, it remains pertinent when presumptive loss of continuous residence is the issue; or, when the absentee's status as a returning permanent resident is under question, rather than continuity of residence for naturalization purposes.

In this last connection above, it should be recognized that an interruption of continuous residence does not necessarily disturb an absentee's status as a lawful permanent resident, and upon proper readmission in such status, he may begin again to accumulate the requisite continuous residence.

--State residence during absence of less than 1 year . Since continuity of residence in the United States is not conclusively broken under section 316(B) by any absence of less than a year, unless it is established that such residence actually has been abandoned, the applicant's residence during any such period of absence necessarily continues to be in the place (otherwise the State) where he resided at the time of his departure abroad. Accordingly, he will be regarded as having complied with the requirement of continuous State residence, either upon his retu rn to that same State if at least 6 months (including any part or all of the absence period) had then elapsed since he first established residence therein, or on the date after his return when at least 6 months (including any part or all of the absence period) will have elapsed since he first established residence in the State. However, if upon his return he takes up residence in a State other than the one in which he resided at the time of his departure, he must complete 6 months' residence in the new juri sdiction before he will be eligible to file a petition in that State.

October 9, 2008

Just stumbled upon...So, 100 years ago only Caucasians were permitted to naturalize in US. Below is cutoff from Act. Interesting, so Mid East folks were classified Caucasians officially. Even Egyptians ...which is North Africa. So, there is a common ancestor for Europeans and Mid East.

----

The above interpretation gave rise to a difficult situation in regard to those races who were not white of skin, but who were classified as Caucasian by ethnologists because of a remote common ancestry with admittedly white persons. In an early leading case generally followed in subsequent decisions, 3/ little or no consideration was given to the ethnological reasoning and Caucasian was said to mean a white person within the understanding of the common man. The court indicated that Congress intended the term to mean European peoples, the source of virtually all immigration to the United States, and that Asiatics inhabiting an area from which immigration was statutorily barred 4/ could hardly be deemed acceptable as citizens. Left open for future determination was the eligibility of Asiatic from without the barred zone, 5/ some of whom were found to be eligible under later decisions. It was generally held in the case of mixed races that the applicant must be preponderantly of an eligible race or races.

Bases primarily upon the principles set forth in the decision cited above, Burmese, Filipinos, 6/ Japanese, 7/ Koreans, 8/ Malayans, polynesians, Samoans, and Siamese 9/ were held to be racially ineligible, whereas Afghans, 10/ Arabs, 11/ Armenians, 12/ Egyptians, Kalmuks of Southeast European Russia, 13/ Persians, Syrians, Tartars of East Russia, 14/ and Turks were deemed qualified in the racial sense.

In order to dispel any doubt concerning the racial ineligibility of Chinese, they were specifically barred from naturalization by the Act of May 6, 1882.

October 9, 2008

:thumbs: :whistle: :crying:

check this out: http://www.reason.com/images/07cf533ddb1d0...db5942ef5ad.jpg
it's Funny but true!

October 9, 2008

Thanks for info, Lucyrich. Looks like they are more carefull with administrative denaturalization since 2001 after court decision on Gorbatch.

What I gather, for 3 years N-400 "marriage" means "residing together". So, in case OP wife can show that they have been living separately (even without the intention of divorce) at time of interivew, it is better to wait 2 more years? Right? Some lawyers write that couple must live together. Even if due to work they live separately, N-400 might be denied. Maybe I got wrong info. Somebody would correct me.

Say if I follow the “don’t tell unless asked” policy, and I do get my citizenship, can my wife (or may be ex at that time) alert the authorities and have them revert my status on the grounds that at the time of interview and oath our marriage was in terminal state.

Yes, that is at least a possibility. Google "administrative denaturalization" for details. Here's one quote from a lawyer's site.

The INS' rule states that it may reopen a naturalization proceeding and revoke naturalization if it obtains "credible and probative evidence that (1) shows that the Service granted the naturalization by mistake; or (2) was not known to the service Officer during the original proceeding; and (i) would have had a material effect on the outcome of the original proceeding; and (ii) would have proven that (A) the Applicant's application was based on fraud, misrepresentation or concealment of a material fact; or (B) the applicant was not, in fact, eligible for naturalization."

Their burden of proof in this matter is pretty low, at least for the first two years after you've been naturalized.

As has been pointed out, you've done absolutely nothing wrong, and you're at least on the path to citizenship based on the "5 years as an LPR" rule, regardless of how the marriage turns out.

The decision about what to reveal and when is yours, but if I were you, I'd want to make sure everything was out in the open for them to know about well before they made any sort of decision. The consequences of being naturalized and then administratively denaturalized are too ugly to be worth the risk, IMO. If you reveal everything and they deny based on the fact that your marriage is no longer together, you've still done absolutely nothing wrong and you've got a safe (but slightly longer) route to permanent citizenship that you know will "stick".

If you're not sure how to proceed, you might want to consult with one or more immigration attornies to discuss the consequences of various options.

October 9, 2008

Mihaela,

Read the article below. Lawyer in NJ wrote it. Sounds like your husband got the same advice.

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I have encountered many nasty divorce cases where an embittered spouse gets dumped by an alien spouse. The immediate reaction by the U.S. spouse is to undertake efforts to have his/her spouse deported. The U.S. spouse often will contact the I.N.S. and request that his or her spouse be deported based on the grounds of marriage fraud. My advice to the U.S. spouse is to chalk it up as a bad experience and avoid being vengeful. I also advise the U.S. spouse that he or she was probably aware of the risks of the marriage, and that the failure of the marriage has to be accepted.

If the alien spouse is seeking to “shake down” the U.S. spouse, then I may advise that an annulment be pursued. Fraud in the inception of marriage is grounds for an annulment. An allegation of marriage fraud may be made to obtain an annulment by the spouse of an alien who gained legal resident status through marriage. It is very important for an alien spouse to vigorously contest an annulment based on fraud. An annulment complaint can really “soften up” an alien spouse. This strategy can really work wonders, and significantly reduce an alien spouse’s demands in any divorce case.

Unfortunately, there are risks with this strategy. A U.S. citizen could face criminal liability for a marriage fraud allegation. It is important to inform any U.S. citizen that if he or she had any knowledge of an alien’s intention to marry in order to gain legal resident status, and if that citizen participated knowingly in the sham marriage, criminal provisions subject U.S. co-conspirators to a felony prosecution under 18 U.S.C. Section 1001.

To conclude, the best strategy for a U.S. citizen to follow is to avoid the obvious impulse of trying to have the ex-spouse deported. One doesn’t have to continue to sponsor the immigration application. However, the impulse of trying to “nuke” the application should be avoided. If the alien spouse is seeking excessive alimony and unrealistic demands for equitable distribution, then the U.S. citizen may want to pursue an annulment. Alternatively, the U.S. spouse could insert a count of marriage fraud in the divorce complaint. It is very rare for a U.S. citizen to be prosecuted for marriage fraud. The U.S. Attorney is really more interested in pursuing immigration fraud on a mass level, such as slave labor cases. However, the laws do exist on the books. If an alien spouse is money-hungry in a divorce case, pursuing an annulment or alleging fraud in the divorce complaint is the equivalent of throwing a “monkey wrench” in his or her plans.

Hi,
I am in a very difficult situation and I am writing about it hoping that people that went thrw something like this or similar or have any ideea of a solution might advise me.

I came to US on a K-1 visa and then I received my temporary GC based on marriage. After almost 1 year of marriage, my husband filed for an anulment (on the ground of fraud for immigration benefits - of course is all false accusations and the catch is this: he doesnt want to be responsable for me.

He is very concerned that, since he signed the affidavit of support he will/would have to pay for me, support me.

He wants out of the marriage and to be off of any responsability that might be still in case of a divorce.

After his filing the annulment, I filed for divorce based on cruel and inhuman treatment (one of only few grounds allowed in NY). The abuse is mainly emotional, verbal, psycological and financial. I have a counselor with an organization that helps abused woman, letter from the doctor - I got sick because of his behaviour and so on ... I was abused by him and his mother and threatened with annulment of marriage a month after the wedding. ... He is contesting the divorce and he said he wont give it to me unless I find another sponsor.

How can it be possible for him to get out of the responsability that the took when he sign it ?

May I file for removal of temporary condition if he gets the annulment ?

My two years expire on August, next year. Right now, we have a annulment and a divorce action both contested and we are waiting for the second Conference with the Court witch will take place in November.

How can I ,,release,, him form the responsability of affidavit of support and remove the condition on my GC? What would happen if he will be granted the annulment ? Would I have any chance to remain here legal ?

Thank you

Mihaela

NY

October 9, 2008

Yes, the adjudicator's mannual (the Bible for IO) specifies 60 days grace period-only after 60 they can start removal process. If I am not mistaken, it actually requires USCIS to send a remind letter to the address on file-to remind to remove conditions on PR status. But I doubt that they do sent letters since at AOS interview they swore all that we were notified that we have to send I-751 at 2 year anniversary. The mannual has quite a few paragraphs on 60 days and process. I have heard before but was surprised to read it.

By the way, there is no grace periods on RFE or other types of applications (I have not read about it, at least). So, if RFE docs sent 1 day late, they can deny petition.

Thanks SO much ManuFred and russian_armenian (sorry can't see your signatures here in the reply area) for your replies.
Re: ManuFred's questions:

I sent the document USPS priority mail on the 7th. His residence started on the 9th two years ago. So that is calling it close, but it was postmarked before the two-year anniversary. I finally got to a person at USCIS who did say that it is the postmark, not the time they receive it, that counts. So, that is good!!! But she also sounded kind of stupid so I got her number in case she was wrong.

The second bio was because he was supposed to get a replacement green card. We HAD to apply for the replacement to extend the endorsement on the document that he does have, which is just the visa sticker in his passport. So he had to pay the fee for the bio, but he never went to it because he had to leave the country to go back to work (he worked in aid in Afghanistan at the time). So he never got the replacement card. And now he hasn't been here long enough to get the second green card, which seemed pointless since his endorsement was for as long as the green card would have been.

Re: r_a's point:

Wow, so really, you technically have 90 days before and 60 days AFTER the expiration of your conditional residence, to file? How can that be? I have never heard of that... but that gives me a lot of hope.

Thanks again to both of you for taking the time to reply. I really appreciate it.

It's not exactly clear to me when you filed your application, is this just two days ago or is this longer ago? Also, what was the purpose for the 2nd bio, this application perhaps?

October 9, 2008

I think the statement below the letter that I swear blah blah blah is as good as notary stamp. Many people on this forum got approved without notarization. Many never included affidevits. My lawyer told me it is the weakest evidence. I got approved without.

Just wondering, do we need to have our letters notarized like we did for the I-485? Thanks!

October 9, 2008

I just dont have time to research this. But if you are so interested, good starting point is fiels adjudicator's mannual on USCIS web.

By law, she must report in writing that she is separated during I-751 pending. But of course, she might fly without any problem and I-751 might get approved. But why to live in constant fear that somebody would report on her to CIS that she got divorced before removing of conditions? Would she know for sure that 5 years down the road her ex-hubby would not decide to report? The point is, if she approved after divorce, her GC is invalid and could be revoked at any ANY time. (I am not even mentioning citizenship-she just cannot apply for it).
She needs to send a new I-751 with waiver ASAP.

Lady applies for removing conditions. During the processing time hubby divorces her and divorce is final before she gets the 10 GC WITHOUT interview.
Should she let it fly? Take the 10 GC and run? Will something pop up if she applies for US citizenship?

Is it fraud not reporting the divorce during the ongoing processing? What if she doesn't apply for USC at all?

Maybe have problems when she tries to renew?

Yo RA! Can't find the law or in the instructions stating she must report marital status change during the process! Can you help?

October 9, 2008

I post the same info 3rd or 4th time in a week. Again, read it.

Here is my post from other forum.

__________

So, below are actual cut-offs from USCIS regulations and memos. One memo below is from 2003 and the other - 2005.

What I have gathered, if there is no final decree at the time of interview (and with hope that the case was not denied without interview), CPR status might be revoked but she might appeal to judge. And judge should give I-551 stamp till divorce is final and she would have to appear again.

Some on this forum write that in this situation lawyers are sending I-751 with waiver (like divorced) and explain in cover letter the situation. The memos and adjudicator's mannual are somewhat contradictory because according to mannual (you can find it on CIS web), you dont need spouse signature if he does not want. Memo is more strict or I am missing something. I hope it helps.

-----2005 memo----

If the petitioner and beneficiary filed an I-751 petition jointly but:

a)separate before a decision is made on the I-751, the beneficiary should notify

the NSC that he/she is currently separated by mailing the explanation to the NSC

at PO Box 82521, Lincoln NE 68501-2521.

b)get divorced while the I-751 petition is pending, the beneficiary should notify

the NSC that he/she is divorced, and submit a copy of the divorce decree to the

NSC at PO Box 82521, Lincoln NE 68501-2521.

• If the petitioner and beneficiary are separated or have initiated divorce

proceedings at the time the I-751 is due to be filed, the petitioner and beneficiary

may still file a joint petition if the petitioner is willing to sign the petition. If the

petitioner is not willing to sign a joint petition, the beneficiary is not eligible to file

a petition requesting a waiver of the joint filing requirement due to divorce until

the divorce is final UNLESS abuse is the basis for such a filing. The alien’s

status may be terminated because s/he has been unable to file a timely I-751

and s/he may be placed in removal proceedings.

-----adjudicator's mannual----

Waiver . The conditional permanent resident, acting alone, may apply (also on Form I-751) for a waiver of the requirement to file the joint petition. See 8 CFR 216.5 .The waiver may be filed at any time (i.e., before, during or after the 90-day filing window). The waiver may be sought if the joint petition cannot be filed due to:

• The termination of the marriage through annulment, divorce, or the death of the petitioning spouse;

• The refusal of the petitioning spouse to join in the filing of the petition;

• A conditional resident child being unable to be included in the joint petition of his or her parent (e.g., if the parent died before seeking removal of conditions);

• The conditional resident being unable or unwilling to file the joint petition because the petitioning spouse is an abusive spouse or parent; or

• Any other reason which is provided for in the Act.

Note : The alien may cite multiple reasons for filing the waiver application. In fact, other than the battered spouse/child waiver, all reasons MUST be applied for at once. (The battered spouse/child waiver may be sought either in combination with other reasons listed on the same Form I-751, or on a separately-filed Form I-751.)

-----2003 memo----

As such, an alien whose conditional resident status is approaching the 2-year anniversary

of the grant of such status, but who is unable to file a joint petition to remove the conditions

because divorce or annulment proceedings have commenced, may not apply for a waiver of the

joint filing requirement based on the “good faith” exception. If an alien’s conditional resident

status is terminated because he or she could not timely file a Form I-751, and he or she is placed

in removal proceedings, then he or she may request a continuance from the immigration judge to

allow for the finalization of the divorce or annulment proceedings. It is noted that the

conditional resident whose status has been terminated should be issued a temporary I-551 during

the pendency of his or her case before the immigration judge (see Genco Opinion 96-12

By law, she must report in writing that she is separated during I-751 pending. But of course, she might fly without any problem and I-751 might get approved. But why to live in constant fear that somebody would report on her to CIS that she got divorced before removing of conditions? Would she know for sure that 5 years down the road her ex-hubby would not decide to report? The point is, if she approved after divorce, her GC is invalid and could be revoked at any ANY time. (I am not even mentioning citizenship-she just cannot apply for it).
She needs to send a new I-751 with waiver ASAP.

Lady applies for removing conditions. During the processing time hubby divorces her and divorce is final before she gets the 10 GC WITHOUT interview.
Should she let it fly? Take the 10 GC and run? Will something pop up if she applies for US citizenship?

Is it fraud not reporting the divorce during the ongoing processing? What if she doesn't apply for USC at all?

Maybe have problems when she tries to renew?

Yo RA! Can't find the law or in the instructions stating she must report marital status change during the process! Can you help?

October 8, 2008

I would not include State tax returns-too much clatter. They are not required.

Make sure that Fed Tax returns are complete with all schedules.

I see a big problem (my guess is most RFE because if it) with bank statements. You dont need to include all pages of bank statements-front is enough to show names, address and that account is active. But you need to have statements covering all marriage period-not every statement and one at the beginning of marriage, middle, recent...

The same for credit cards-old statements and new ones.

Same for pictures-they should span.. It is well known that fraud files have pictures made in one day-just they would change outfits and go from appartment to restaurant, etc. I think officers know that (I especially selected pictures where I had short hair and long hair, blond and dark-it takes years to grow hair; it was just in case). So, I spaned my pictures from dating -wedding-to recent month and some on vacation, some at home, with families, etc; not like both of us posing - it was clear that they indeed span a few years (we gained and lost weight too:(

I was approved. So, I guess my file was more or less in order. We had a lot of docs. But all (utility bills, credit cards, store cards, family phone plan, etc) have spanned for about 3 years. We have included about 4 statements for each type of doc. And in cover letter it was specified that like -join bank statements (from Sep 2005 till Nov 2007), etc.

What do you think of this list of documents? Is it OK?
I have everything, but the 2 affidavits that I will have this week. Will probably send my I 751 at the end of the week.

Of course we will add the 545 check ( is a money order better??? )

Did I forget something?????

Form I-751 completed

Copy of Marie Feldman’s permanent resident card

Copy of the joint lease of our current communal residence

Copy of federal tax returns for 2006 and 2007

Copy of California state tax return 2006 and 2007

Copy of most recent joint account statement (Wachovia)

Copy of personal bank statement account (Wachovia)

Copy of spouse most recent bank statement (Wachovia)

Copy of Merchant’s Direct credit card statement + copy of additional credit card in spouse’s name

Copy of life insurance beneficiary change form (spouse is primary beneficiary)

Copy of Health insurance enrollment application and copy of status of deductible plan showing both beneficiaries

Copy of both drivers license with same residence address

Copy of car insurance coverage form

Copy of one homeowners insurance statement

Copy of spouse’s passport showing married name.

Different photos taken during the course of the past two years during vacations and family celebrations.

Copies of letters addressed to our couple.

Copies of boarding passes for a trip between san Francisco and Puerto Vallarta and for a trip between Sacramento and New York-JFK.

Two affidavits sworn by US citizen friends, attesting to our relationship and marriage.

Thanks all for your help... I cannot believe how fast those two years passed... sigh.

Marie

October 8, 2008

By rules, there is a 60 day grace period. So, if you sent I-751 up to 60 days after experation of CLPR status, you should be fine. You can read it in field adjudicator's mannual on USCIS web (I dont remember chapter-related to conditions removal).

I mixed up the date for my husband's I-751 so I ended up filing it just two days (sent priority mail) before his conditional residence ended (as per effective date). He also NEVER received a green card even though he applied for a replacement because he was working in another country at the time, so he couldn't do the second biometrics. So we had to send in copies of the extended endorsement of his visa instead. Now I'm terrified- first of all, does the date of the postmark count for anything? Second of all, will they have in their records that we reported that the green card was lost? And if not, and they return it, does that mean we are late?
My husband had planned on joining the military- when do you think that we will get a receipt? If he gets denied can he re-apply with them? I feel like such an idiot. Can I call anyone and file something for a belated extension?

Thanks in advance for any support you can give...

October 8, 2008

By law, she must report in writing that she is separated during I-751 pending. But of course, she might fly without any problem and I-751 might get approved. But why to live in constant fear that somebody would report on her to CIS that she got divorced before removing of conditions? Would she know for sure that 5 years down the road her ex-hubby would not decide to report? The point is, if she approved after divorce, her GC is invalid and could be revoked at any ANY time. (I am not even mentioning citizenship-she just cannot apply for it).

She needs to send a new I-751 with waiver ASAP.

Lady applies for removing conditions. During the processing time hubby divorces her and divorce is final before she gets the 10 GC WITHOUT interview.
Should she let it fly? Take the 10 GC and run? Will something pop up if she applies for US citizenship?

Is it fraud not reporting the divorce during the ongoing processing? What if she doesn't apply for USC at all?

Maybe have problems when she tries to renew?

October 7, 2008