Selected Issues on Citizenship and Immigration Law:
Winning a Marriage Case
Thursday January 20, 2011
1:30 p.m. – 3:00 p.m. EST
Patricia Wonder
Instructor,
CUNY School of Professional Studies
Partner, Johnson Wonder PLLC
Our Panel of Presenters
Victoria A. Donoghue, Esq.
Immigration Attorney,
Nachman & Associates
Noemi Masliah, Esq.
Partner,
Masliah & Soloway, PC
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Victoria A.
Donoghue, Esq.
Immigration Attorney, Nachman & Associates
Marriage-Based Permanent Residence
(Green Cards)
Victoria A. Donoghue, Esq.
• Spouses of United State Citizens (USC’s) are
immediately eligible to immigrate or adjust their
status without retrogression
• Lawful Permanent Residents (LPR’s) can apply
for spouses but these cases are subject to visa
quota allocations and retrogression (backlog)
• Visa quota allocations are announced monthly
by the US Department of State at
http://travel.state.gov/visa/bulletin/bulletin
• For January 2011, the category for spouse of
LPR’s, F2A, is currently backlogged to
01-08-2008; meaning an adjustment of status
application can be filed for the spouse of an LPR
whose I-130 was filed before that date
Legal Standard in a Marriage Case
Victoria A. Donoghue, Esq.
• Must be bona fide marriage entered into
by the parties not solely for immigration
purposes
• Must continue to be married for approval
• Approval possible even if parties living
apart and marriage is no longer viable as
long as entered into marriage not solely
for immigration purposes
• Legal standards have been established by
case law
Poll Question
Natalie’s H-1B employment was terminated and
she could not find another job. She had no viable
immigration options. Her U.S. citizen boyfriend
had asked her to marry him on previous
occasions. She had declined in the past by now
she agrees. They get married at City Hall and
move in together. Is this a bona fide marriage for
immigration purposes?
Noemi Masliah, Esq.
Partner, Masliah & Soloway, PC
Spousal Petition Form I-130
Noemi Masliah, Esq.
• Filed with the US Citizenship and
Immigration Services (USCIS) by
USC/LPR petitioner to classify
spouse as an immigrant with:
– Copy of marriage certificate
– Copy of proof of petitioner’s USC
or LPR status
– Copy of termination of any prior
marriages
– Petitioner’s and beneficiary’s
G-325A biographic information
and photo
Spousal Petition Form I-130
Noemi Masliah, Esq.
• Approval of petition does not confer
any benefit or status to beneficiary;
to acquire status, must apply for
adjustment of status or immigrate
via consular processing
• Form I-130 can be found at
www.uscis.gov. The filing fee is
$420.
Application for Adjustment of Status Form I-485
Noemi Masliah, Esq.
• Filed with the USCIS by beneficiary to adjust
status to lawful permanent resident
• Must be spouse of USC or of LPR with a
current priority date
• Must be in the United States after having been
inspected and admitted or paroled (INA Sec.
245(a)) or eligible under INA Sec. 245(i)
• If spouse of a USC, need not have maintained
lawful status prior to filing I-485
• If spouse of a LPR, must have maintained
lawful status prior to filing I-485; meaning
having maintained valid non-immigrant status
and not worked without authorization
Application for Adjustment of Status Form I-485
Noemi Masliah, Esq.
• Form I-485 may be found at www.uscis.gov.
The filing fee is $1070. which includes the
biometric fee
• Filed with copies of
– Proof of admission or parole (e.g.I-94)
– Proof of maintenance of status
– All passports
– Birth certificate, with translation
– G-325A biographic information
– Medical report
– Photos
– Affidavit of Support (I-864) by petitioner
and, if necessary, by joint sponsor
– Federal tax returns, if available
Affidavit of Support Form I-864
Noemi Masliah, Esq.
• Required in all marriage cases from
petitioner
• Petitioning sponsor must show income of
at least 125% of the poverty line as
published by USCIS on Form I-864P
• Minimum income requirements based on
household size assets can be considered if
income alone is insufficient
Affidavit of Support Form I-864
Noemi Masliah, Esq.
• Joint sponsors permitted in order to meet
income requirement (LPR or USC domiciled
in United States and over 18)
• Must be supported with evidence of
income:
– tax returns and W-2s
– employment letter and recent pay
stubs
– bank statements and proof of assets
• Form I-864 and Form I-864P may be found
at www.uscis.gov
Poll Question
Sam, a U.S. citizen is an artist. He married
Sophia, a foreign national who is also an artist.
Last year, Sam earned $15,300 and Sophia earned
$16,208. They have no children. Sam’s wealthy
parents recently gave Sam their NYC apartment
(worth $500,000). Is there a way to prepare an
affidavit of support that will satisfy USCIS
requirements?
Preparing for the Adjustment of Status Interview
Victoria A. Donoghue, Esq.
• Interview of the couple always
required by the USCIS
• Scheduled by USCIS at local office
based on state of residence, usually
4-6 months after filing
• Couple should meet with attorney
to review case, to review what to
expect at the interview and to
prepare documentation to bring to
interview
Preparing for the Adjustment of Status Interview
Victoria A. Donoghue, Esq.
• Documents to bring to interview:
– All originals of copies
previously submitted
– Evidence to establish bona
fides of marriage
Supporting Evidence of Bona Fides of Marriage
Victoria A. Donoghue, Esq.
• Photos from courtship and wedding
• Lease or mortgage in both names and
joint utility bills
• Medical benefit letter showing medical
benefits for husband and wife
• Bank statements from joint accounts
• Evidence of joint credit cards
• Cancelled checks showing shared
household expenses
• Birth certificates of children born of
the marriage
• Affidavits from persons knowing the
couple
The Interview - What To Expect
Victoria A. Donoghue, Esq.
• USCIS officer will place couple
under oath to tell the truth
• Couple will be questioned together
and asked to show documents
• Questions concerning basic
eligibility for adjustment of status,
criminal issues, prior marriages,
and entry into the United States
The Interview - What To Expect
Victoria A. Donoghue, Esq.
• Questions involving deeper
inspection into the couple’s
relationship (e.g. Where was your
first date? What is her mother’s
name?)
• Specific questions about the
documents submitted (Why didn’t
you file taxes jointly?)
• Anything about the
petitioner/beneficiary on a social
networking site is fair game during
the interview
Stokes Interview
Victoria A. Donoghue, Esq.
• If the USCIS officer is not satisfied with the
responses or the documents submitted at the
initial interview, a “Stokes” interview may be
scheduled
• It is a recorded interview where the couple is
separated and questioned
• An attorney is permitted to be present during
the interview of both spouses
Stokes Interview
Victoria A. Donoghue, Esq.
• Questions tend to focus on history of the
relationship, living arrangements and daily
interactions (Do you have your house keys
and may I see them?)
• USCIS officer may approve
I-130 petition if satisfied with bona fides of
the marriage; if not satisfied, may ask
petitioner to withdraw petition or may deny
the petition
Poll Question
Maria, a foreign national, and Paul, a U.S. citizen, are a
married couple that filed an I-130 and I-485. At the USCIS
interview, the officer asked if they had any evidence to
establish the bona fides of the marriage. The couple
hadn’t brought anything with them. The officer asked Paul
to provide the names of Maria’s parents; he couldn’t
remember. She asked Maria about the date of the
marriage; Maria gave a date that did not match the
petition. What is the officer likely to do in these
circumstances?
Type of Permanent Residence If Case Is Approved
Noemi Masliah, Esq.
• Type of Permanent Residence - based on
length of marriage at time of approval
– Conditional Residence if married < 2 yrs
– Permanent Residence if married >2 yrs
• If conditional residence, residence is valid for
only two years and must file an I-751
petition to remove the condition within a 90
day window before expiration
I-751 Petition to Remove Conditions
Noemi Masliah, Esq.
• Filed jointly with spouse
• May seek waiver of joint filing
requirement due to:
– Death of spouse, or
– Termination of marriage
through divorce/annulment
(will have to show that the
marriage was bona fide when
entered), or
– Battered or subjected to
extreme cruelty, or
– Extreme hardship to foreign
national
I-751 Petition to Remove Conditions
Noemi Masliah, Esq.
• Couple should start saving
documents evidencing the bona fides
of the marriage after the case is
initially approved (bank statements,
photos, contract for jointly purchased
car)
• Once the I-751 and supporting
documents are received, USCIS will
send a receipt notice extending the
conditional residence for an
additional year
• May or may not have an interview
• Upon approval, condition is removed
and FN is deemed to be a legal
permanent resident as of date of
initial grant
Questions and Answers
Q&A: Our Panel of Presenters
Patricia Wonder
Instructor,
CUNY School of
Professional Studies and
Partner, Johnson Wonder
PLLC
Victoria A. Donoghue, Esq.
Immigration Attorney,
Nachman & Associates
Noemi Masliah, Esq .
Partner,
Masliah & Soloway, PC
Acknowledgements
• Paul Russo
• Allan Wernick
• Kelley Kawano
• A. Sofia Carreño
• Antonia Levy
• David Sturniolo
Director of Online Programs
CUNY School of Professional Studies
Instructional Technology Fellow
CUNY School of Professional Studies
Instructional Technology Fellow
CUNY School of Professional Studies
Director
CUNY Citizenship Now!
Communications Coordinator
CUNY Citizenship Now!
Communications Assistant
CUNY Citizenship Now!
• Gabriel Espinal
Communications Assistant
CUNY Citizenship Now!
For further questions regarding the information
presented during this webinar please contact
Patricia Wonder
patriciawonder@johnsonwonder.com
Selected Issues on Citizenship and Immigration Law:
Adjustment of Status
Thursday February 17, 2011
1:30 p.m. – 3:00 p.m. EST