Adjustment of Status to Lawful Permanent Resident. Precedent Decisions Pertaining to Adjustment of Status

(1) Some Precedent Decisions Dealing with General Eligibility for Adjustment of Status to That of Permanent Resident :

• Matter of Egbunine , 19 I. & N. Dec. 478 (BIA, 1987) . An alien may not adjust his status if he seeks to receive an immigrant visa on the basis of a marriage which was entered into while the alien was in immigration proceedings.

• Matter of Arthur , 20 I. & N. Dec. 475 (BIA, 1992) . Alien may adjust status based on a marriage entered into after the commencement of proceedings if the alien establishes "by clear and convincing evidence to the satisfaction of the Attorney General that the marriage was entered into in good faith and ...was not entered into for the purpose of procuring the alien's entry as an immigrant."

• Matter of Ching , 15 I. & N. Dec. 772 (BIA, 1976) . Where a visa petition has not been approved, applicant is statutorily ineligible for section 245 relief.

• Matter of Stockwell , 20 I. & N. Dec. 309 (BIA, 1991) . Section 245(d) of the Act does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

• Matter of Tabcum , 14 I. & N. Dec. 113 (R.C., 1972) . An alien who is the "accompanying spouse" of an exchange visitor's alien is subject to the foreign residence requirement of section 212(e) and is therefore ineligible for adjustment of status.

• Matter of Davis , 10 I. & N. Dec. 441 (BIA, 1964) . An alien who entered the U.S. as a transit without visa is ineligible for adjustment of status.

• Matter of Loo Bing Sun , 15 I. & N. Dec. 307 (BIA, 1975) . An alien admitted with a nonquota immigrant visa procured by fraud is ineligible for adjustment of status if inadmissible under section 212(a)(19) and ineligible for 212(i) waivers.

• Matter of Monteran , 11 I. & N. Dec. 717 (BIA, 1966) . An alien who (1) was born in the U.S., (2) expatriated abroad, and (3) was paroled into the U.S., is eligible for adjustment of status.

• Matter of Krastman , 11 I. & N. Dec. 720 (BIA, 1966) . An alien who, following lawful admission to the U.S. for permanent residence, became deportable because of conviction for crimes involving moral turpitude, is not precluded from establishing statutory eligibility for adjustment of status.

• Matter of Sanchez-Linn , 20 I. & N. Dec. 362 (BIA, 1991) . An applicant for registry under section 249 of the Act must prove he or she is at present a person of good moral character, and has been such for a reasonable period of time preceding the application.

• Matter of Naulu , 19 I. & N. Dec. 351 (BIA, 1986) . A derivative beneficiary "accompanying or following to join" the principal alien cannot precede the principle. However, once the principal acquires permanent resident status, the spouse and/or child is not barred from adjustment by reason of having preceded him as a nonimmigrant.

(2) Some Precedent Decisions Dealing with Whether an Alien Has Been Inspected and Admitted or Paroled .

• Matter of Areguillin , 17 I. & N. 308 (BIA, 1980) ; Matter of V-Q- , 9 I. & N. Dec. 78 (BIA, 1960) ; Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) . Physically presenting oneself for questioning and making no knowing false claim to U.S. citizenship constitutes being inspected and admitted for section 245 purposes.

• Matter of Areguillin , 17 I. & N. Dec. 308 (BIA, 1980) . The alien bears the burden of proving presentation of inspection to establish eligibility for adjustment of status.

• Matter of Wong , 12 I. & N. Dec. 733 (BIA, 1968) ; Matter of Woo , 11 I. & N. Dec. 706 (BIA, 1966) . An alien who gains admission to the U.S. by a knowing false claim to citizenship has not been "inspected and admitted".

• Matter of Robles , 15 I. & N. Dec. 734 (BIA, 1976) . Entry after intentionally evading the inspection required by the immigration laws and regulations is an entry without inspection, and the alien cannot be deemed inspected and admitted.

• Matter of Lim , 10 I. & N. Dec. 653 (BIA, 1963) . An alien who entered as a member of the U.S. Coast Guard is ineligible for adjustment of status, because he was not inspected and admitted, or paroled into the U.S.

(3) Some Precedent Decisions Dealing with Crewman Arriving by or Destined to a Vessel :

• Matter of Rebelo , 13 I. & N. Dec. 84 (BIA, 1968) distinguished; Matter of Campton , 13 I. & N. Dec. 535 (BIA, 1970) . An alien who is a crewman by occupation and whose last entry was sought and gained solely as a crewman is ineligible for adjustment of status notwithstanding an earlier admission as a temporary visitor for pleasure. (What matters is the most recent entry. For example, if an alien who is a crewman by profession last sought entry as a visitor for pleasure and was admitted as such (or paroled), he or she is eligible to apply for adjustment of status.

• Matter of Goncalves , 10 I. & N. Dec. 277 (BIA, 1963) . An alien's entry in transit as a seaman to join a ship and depart constitutes entry as a crewman, and he or she is therefore ineligible to apply for adjustment of status.

• Matter of Quintero-Correa , 11 I. & N. Dec. 343 (BIA, 1964) . Arrival as a "workaway" does not preclude adjustment of status in the case of an alien who has no background as an occupation seaman, who was in possession of a valid unexpired nonimmigrant visa, and who was inspected and admitted as a temporary visitor for pleasure.

(4) Some Precedent Decisions Dealing with Unauthorized Employment :

• Matter of Raol , 16 I. & N. Dec. 466 (BIA, 1978) . An alien's employment is unauthorized unless the Service has specifically approved the employment. A labor certification issued by the Secretary of Labor does not, in itself, authorize an alien's employment in the U.S.

• Matter of Tien , 17 I. & N. Dec. 436 (BIA, 1980) . When the basis for an alien's application for adjustment has ceased to exist (e.g., if the alien no longer intends to work for the employer who obtained his or her labor certification), the application is deemed abandoned, and the alien is no longer exempted from section 245(c) of the Immigration and Nationality Act.

• Matter of Hall , 18 I. & N. Dec. 203 (BIA, 1982) ; A alien who engages in fund-raising activities as part of his missionary work and receives full support is considered to have engaged in unauthorized employment and is therefore barred from adjusting status.

(5) Some Precedent Decisions Dealing with an Alien Who Is Likely to Become a Public Charge :

• Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977) . Where the record reflects applicants were receiving public assistance with no prospects for their earning a livelihood or providing self support the application for adjustment of status would be denied.

• Matter of Perez , 15 I. & N. Dec. 136 (BIA, 1974) . The fact that an alien has been on welfare does not, by itself, establish likelihood of becoming a public charge.

• Matter of Harutunian , 14 I. & N. Dec. 583 (R.C., 1974) ; Matter of Vindman , 16 I. & N. Dec. 131 (R.C., 1977). A determination as to the likelihood of becoming a public charge should take into consideration factors such as an alien's age, incapability of earning a livelihood, a lack of sufficient funds for self-support, and lack of a person willing and able to assure that the alien will not need public support.

(6) Some Precedent Decisions Dealing with Discretionary Denials :

• Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . An applicant for adjustment who meets the objective prerequisites is merely eligible for adjustment of status and is in no way entitled to adjustment.

• Matter of Arthur , 20 I. & N. Dec 475 (BIA, 1992) . Motions to reopen for consideration of applications for adjustment of status based upon unadjudicated visa petitions which fall within the ambit of sections 204(g) and 245(e) (married while in proceedings) will not be granted.

• Matter of Lee , 13 I. & N. Dec. 236 (BIA, 1969) ; Matter of Tayeb , 12 I. & N. Dec. 739 (BIA, 1968) . Consideration must be given to an advisory report from the Department of State which indicates the alien's adjustment would have an adverse effect on relations with the applicant's government.

• Matter of Barrios , 10 I. & N. Dec. 172 (BIA, 1963) . The favorable exercise of discretion is warranted when an alien entered the U.S. as a nonimmigrant fully intending to comply with the terms of admission and did not formulate a specific intention to become a permanent resident until after arrival.

• Matter of Francois , 10 I. & N. Dec. 168 (BIA, 1963) ; Matter of Marques , 16 I. & N. Dec. 314 (BIA, 1977) . Good moral character is a factor which must be considered in determining whether discretion should be exercised in a particular case.

• Matter of Khan , 17 I. & N. Dec. 508 (BIA, 1980) . Unauthorized employment alone should not ordinarily result in the discretionary denial of adjustment to those individuals who are statutorily eligible for that relief, no other negative considerations being present.

• Matter of Aguirre , 13 I. & N. Dec. 661 (BIA, 1971) . An officer must make an independent exercise of discretion on all the facts present.

• Matter of Blas , 15 I. & N. Dec. 626 (A.G., 1976) . Although family ties will ordinarily result in favorable exercise of discretion, they neither must nor should be used where it appears that the alien has engaged in a course of deception designed to produce those very ties.

• Matter of Kai Hing Hui , 15 I. & N. Dec. 288 (BIA, 1975) . An alien who gained entry by using a nonresident alien Mexican border crossing card obtained by misrepresentation is excludable under section 212(a)(6)(C)(i), and the case does not merit the favorable exercise of discretion.

• Matter of Tanahan , 18 I. & N. Dec. 339 (R.C., 1981) . Adjustment of status under section 245 was not designed to supersede the regular consular visa-issuing processes or to be granted in non-meritorious cases.

• Matter of Arai , 13 I. & N. Dec. 494 (BIA, 1970) ; Matter of Leung , 16 I. & N. Dec. 12 (DD, 1976) . Where adverse factors are present in a given application for adjustment of status, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. In the absence of adverse factors, adjustment will ordinarily be granted as a matter of discretion.

• Matter of Garcia-Castillo , 10 I. & N. Dec. 516 (BIA, 1964) . Entry as a nonimmigrant with a preconceived intention to remain is a serious adverse factor to be considered.

• Matter of Cavazos , 17 I. & N. Dec. 215 (BIA, 1980) . In the absence of other adverse factors, an application for adjustment by an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered as a nonimmigrant with a preconceived intention to remain.

• Matter of Ibrahim , 18 I. & N. Dec. 55 (BIA, 1981). The benefits of Matter of Cavazos , supra , are limited to immediate relatives, and an application for adjustment by a fifth preference immigrant with a preconceived intention to remain is properly denied in the exercise of discretion.

• Matter of Baltazar , 16 I. & N. Dec. 108 (BIA, 1977) . Evidence indicating that the alien obtained a sham divorce primarily to obtain immigration benefits is a significant adverse factor bearing on discretion.

• Matter of Ozcan , 15 I. & N. Dec. 301 (BIA, 1975) . An alien who has misstated or at least materially overstated qualifications on an application for a labor certification does not warrant the favorable exercise of discretion.

Was the Marriage Entered into for Immigration Purposes? Is the marraige "Bona fide" for immigration purposes?

In order to be granted permanent residency, your spouse's relationship with you must be established and your spouse must be admissible to the United States under the immigration law. Also, the marriage must be bona fide, not merely a sham to get the non US citizen spouse a green card. The USCIS takes fraudulent marriage seriously and you will be asked to provide supporting documents to show that the marriage is valid.

Over the past two decades, Congress and the CIS have grown increasingly suspicious of marriages. Since 1986, a foreign-born spouse who has been married to the petitioner for less than two years is given conditional permanent residence for two years. While this conditional status is for the most part the same as regular permanent residence, it is designed to provide assurance that the parties did not marry for immigration purposes by allowing the conditional status to be revoked if the marriage does not last two years.

It is important to note at the outset that it is not against federal immigration law to consider immigration in deciding to get married. Considering immigration benefits will only be a problem if those were the ONLY reason to marry. So a couple, one of whom is undocumented and the other a citizen would not be breaking the law if they married before they would otherwise have planned to so the noncitizen can legalize his or her status. Despite this, and despite the fact that it can be impossible to determine why people marry, the CIS makes this determination every day. Therefore, it is important to know what factors will make the agency suspect marriage fraud.

Some of the most obvious of these are if the couple did not know each other for very long before marrying or had seen each other only a few times before marrying. Also, if the couple does not live together, the CIS will be very suspicious, even more so if they have never lived together. Also, marriages between couples from different backgrounds, especially those that lack a common language, are viewed with suspicion.

The CIS is very suspicious of marriages entered into after one of the parties is placed in removal proceedings or is being investigated by the CIS. In such cases, the beneficiary is required to stay outside the US for two years after the marriage unless the parties can prove the marriage is bona fide. The best way to show that the marriage is bona fide is to present evidence of the parties’ joint ownership of property and their cohabitation. Evidence of children born in the marriage, as well as affidavits from friends and family testifying to the bona fides of the marriage are also helpful.

The CIS has discretion to suspect and then accordingly to investigate a marriage which may bring immigration benefits to the aliens. If the CIS has reasons to suspect that the marriage is a "sham marriage", the CIS officers have the authority to investigate. Usually, the CIS officers may visit the suspect couple at their residence, or visit their neighbors to investigate whether they reside together, share a household, or own property jointly, etc. Also, the CIS officers may arrange interviews with the couple at their residence or at local CIS offices. _________________________________

Whether an alien qualifies as a spouse depends upon three factors:

(1) the validity of the marriage under the law of the jurisdiction where it was performed;

(2) whether the marriage was entered into in order to confer an immigration benefit on the alien (a sham marriage); and

(3) the current status of the marriage.

The only legally-sanctioned marriage defined by the INA to be invalid for immigration purposes is one in which the two parties were not physically in the presence of each other at the time of the marriage ceremony, unless the marriage was subsequently consummated. Other marriages may be invalid at their inception because one of the parties lacked legal capacity or because the marriage is against the law of the jurisdiction.

The most common impediment to a valid marriage, however, is the objection that one of the parties lacked capacity to marry because of the invalidity of a prior divorce. Any prior divorce must meet the legal standards of the jurisdiction where the divorce decree is entered, and must be recognized in the jurisdiction where the subsequent marriage occurs. While all U.S. divorces are considered valid determining the validity of divorces in foreign jurisdictions is often a complicated task. This difficulty can be compounded when the foreign jurisdiction recognizes "custom-ary" divorces and marriages; in such instances, it is necessary to study the actual facts of the divorce or marriage proce-dure or ceremony to determine whether the proper ritual was followed.

Even if a marriage is valid at its inception, it may be considered sham for immigration purposes if it was entered into to confer an immigration benefit on the alien. The general authority to investigate the bona fides of a marriage rela-tionship for purposes of conferring an immigration benefit appears in section 204(b) of the INA. The basic test in all cases will be whether the parties entered into the marriage sharing the intention to establish a life together. Thus, the fact that the couple is presently divorced or separated does not necessarily negate the validity of the marriage for immi-gration purposes, although such circumstances may raise questions as to the bona fides of the marriage. In addition to this general investigatory authority, section 204(c) of the INA bars the approval of a visa petition for a person who pre-viously obtained, or attempted or conspired to obtain, immigration benefits by reason of a marriage determined to have been entered into for purpose of evading the immigration laws.

Several other provisions added by the Immigration Marriage Fraud Amendments of 1986 (IMFA) are also designed to combat sham marriages.

First, the INS cannot approve the spousal second preference petition of permanent residents who have been accorded their status based on a prior marriage unless:

(1) a period of five years has elapsed after the alien acquired the permanent resident status;

(2) the alien establishes through clear and convincing evidence that the prior marriage was not entered into for purposes of evading the immigration laws; or

(3) the prior marriage was terminated through the death of the petitioner's spouse.

Second, an immigrant visa petition cannot be approved for an alien who has married after commencement of deportation, exclusion, or removal proceedings until the alien has resided outside of the United States for two years after the marriage. The alien can obtain a "bona fide marriage" waiver of the foreign residence requirement if the alien establishes by clear and convincing evidence that:

(1) the marriage was entered in good faith and in accordance with the laws of the place where the marriage took place;

(2) the marriage was not entered into for the purpose of procuring the alien's entry as an immigrant; and

(3) no fee or other consideration was given (other than a fee or other consideration to an attorney for assistance in preparing petitions) for the filing of a petition on behalf of the alien.

Finally, under IMFA, aliens who obtain an immigration benefit on the basis of a marriage entered into within two years of the time the benefit is conferred will be granted conditional resident status for a period of two years. Before this period ends, the couple must file a joint petition to remove the conditional basis of the alien's residence; failure to do so results in automatic termination of the alien's resident status. When the conditional resident is unable or unwilling to obtain the cooperation of the citizen or resident spouse or parent, he or she will be required to file an application for waiver of the joint petition requirement. There generally is no requirement that a marriage currently be viable in order for it to be the basis for conferring immigration benefits. In most cases, as long as the couple entered into a bona fide marriage and have neither divorced nor legally separated pursuant to a formal written instrument, they will be considered spouses for immigration purposes.

(1) In the absence of adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intention to remain. Matter of Cavazos, Interim Decision 2750 (BIA 1980), clarified and reaffirmed. Matter of Cavazos, 1980 BIA LEXIS 2; 17 I. & N. Dec. 215

(2) A fraudulent or sham marriage that is entered into for the primary purpose of circumventing the immigration laws does not enable an alien spouse to obtain immigration benefits.

(3) Where the parties enter into a valid marriage, and there is nothing to show that they have since obtained a legal separation or dissolution of that marriage, a visa petition filed on behalf of the alien spouse should not be denied solely because the parties are not residing together.

(4) Although the separation of spouses in and of itself is not a valid basis for denial of a visa petition based upon a determination that the marriage is not viable, a separation is a relevant factor in determining the parties' intent at the time of their marriage, i.e., whether the marriage is a sham. (Matter of McKee, 1980 BIA LEXIS 17; 17 I. & N. Dec. 332)

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The following is a list of some of the typical questions asked during an adjustment of status interview. During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

MARRIAGE INTERVIEW-SAMPLE QUESTIONS

During the marriage interview the parties may be questioned separately concerning the bona fides of the marriage. Usually the US citizen will be questioned first and then the alien spouse will be asked the same questions.

Name and address.

Name and Date of Birth of Spouse.

When and where did you meet your spouse?

Describe this 1st meeting.

Did you make arrangements to meet again?

Did you exchange phone numbers?

When did you meet next?

Where were you living at the time? Where was your spouse living?

When did you decide to get married? Where were you at the time?

Did you live together before marriage?

When and where did you get married? How did you and your spouse get to the church, courthouse, etc.?

Who were the witnesses to the ceremony?

Did you exchange wedding rings?

Where had you purchased these rings? Did you and your spouse purchase them together?

Did you have a reception after the ceremony?

Where was it held?

Do you have any photos of the ceremony and /or reception?

Describe the reception.

Did any of your, and your spouse's, family members attend? If so, who?

Did you go on a honeymoon? If so, when and where?

If you did not have a reception, what did you do after the wedding ceremony?

Where did you live after the wedding?

Describe the place where you lived right after the marriage. Number of bedrooms and bathrooms; furnishings; color of walls, floor coverings, appliances, etc; type of air conditioning, heating, etc; # of telephones, televisions, etc. Do you have cable television?

Where did you get the furniture? Was it already there, did you buy it, was it a gift, or did it come from your, or your spouse's, previous residence?

If brought to the house or apartment, describe how it was transported.

Describe your bedroom. Where do you keep your clothes? Where does your spouse keep his or her clothes? Where are the bathroom towels kept? Where do you keep the dirty clothes?

Where is the garbage kept in the kitchen?

On what day of the week is the garbage picked up?

Where do you shop for groceries? Do you go together with your spouse? How do you get there?

Where do you work? What days of the week do you work?

What hours do you work? What is your salary?

What is your telephone # at work?

When was the last vacation you had from work?

Did you and your spouse go anywhere together at that time?

When was the last vacation you and your spouse took together?

Where did you go? How did you get there? Describe it.

Where does your spouse work? What days of the week? What hours? What is the salary, if you know?

What is your spouse's telephone # at work?

When was the last time your spouse got a vacation from work?

Do you know your spouse's family members? If so, which ones? If your spouse has children from a previous marriage, their names, ages, where they live, and where they go to school, if applicable.

Where do you live now? (If different from where you lived right after the marriage, then go over the same questions as above). How much is the rent? When is it paid? How do you pay it?

Do you have a bank account together? Where? What kind of account? (Checking, savings).

Are both of you listed on the account? (Do you have a bank letter, cancelled checks, etc.?)

Did you file a joint tax return this year? Do you have a copy with you?

Do you own any property together? What property? Did you bring copies of the documents with you?

What kind of automobile do you and your spouse have? Describe them.

Do you have an Insurance policy listing your spouse as the beneficiary? If so, do you have a copy?

Have you taken any trips or vacations together? Do you have photos from these trips?

Do you have any utility bills, or receipts from items you have purchased together?

What other documentation do you have to show that you are living together as husband and wife?

Do you have any pets? What kind, what are their names, and describe them?

What did you do for Christmas, New Year's, your anniversary, or you or your spouse's last birthday? Did you exchange gifts? If so, what kind of gift?

Did you or your spouse go to work yesterday? If so, at what time did you and/or your spouse leave the house and return?

Who cooks the meals at the house?

What is your spouse's favorite food? What is your favorite food?

Does your spouse drink coffee? If so, does he or she use cream and/or sugar?

Did you eat dinner together last night? Did anyone else have dinner with you? What did you have?

What time was dinner served? Who cooked it?

Did you watch TV after dinner? What shows did you watch?

At what time did you go to bed? Who went to bed first?

Did you have the air conditioning or heater on?

Who woke up first this morning? Did an alarm clock go off?

Did you or your spouse take a shower?

Did you come to the interview together? Who drove?

Did you have breakfast? Where and what did you eat?

Please remember that the number and types of questions that can be asked is almost limitless. Therefore, you and your spouse should review your entire lives together prior to attending the immigration interview. Even married couples living together for many years sometimes have difficulties remembering all of the facts of their relationship. Be prepared and take original documents with you. Then you will have no problem passing the interview and obtaining permanent residence in the United States.