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Marriage Petitions

Love, Marriage and the Greencard!
By: Shah Peerally Esq.

Marriage is a very important concept and establishment in the United States and as such Congress has determined that a foreign national who marries a United States Citizen spouse has the immediate ability to file for a permanent residence under a first category preference. It is good to know that a permanent residents (“greencard” holders) can also file a marriage petition however the waiting time for the priority date is long and therefore does not confer immediate ability to obtain a greencard.

The first consideration in marriage cases is that the marriage has to be bona fide (literally in “good faith”) or a marriage not with the intention of solely getting immigration benefits. A good faith marriage is predicated on the intent of the bride and groom to establish a life together at the time that they were married. The United States Citizenship and Immigration Services (USCIS) formerly the INS (“Immigration”), has various criteria for determining if a marriage was entered in good faith. These include but are not limited to commingling of assets, joint leases, joint financial responsibilities, and pictures. It is generally accepted that a couple knows the most intimate affairs of each other. This is why it is very important to document your marriage in order to present evidence of your bona fide relationship. It is imperative that a person does not enter into a fraudulent marriage. A fraudulent marriage will penalize both the petitioner (US Citizen spouse) and the beneficiary (the person obtaining the benefits) and might even result in criminal charges including prison time. While Immigration does not recognize fraudulent marriages, they will recognize an arranged marriage as long as it is entered in good faith.

In order to file for a marriage petition, one should have a valid marriage. A valid marriage is one which is recognized in the State in which it takes place. For example, if Ram gets married to Anita in Nevada and moves to California, this marriage will be recognized by the Immigration. However, if Ram and Anita are first cousins, Nevada will not recognize the marriage and thus Immigration will also not recognize this marriage. This is very important because you might not know this fact until you file your petitions with the Immigration. Also if the marriage takes place, for instance, in Fiji, Immigration will recognize the marriage as long as the marriage is recognized in Fiji. Note that a proxy marriage will not be recognized. A proxy marriage is one where the bride and groom did not meet on the wedding day. The exception to this rule is if the marriage was consummated after the proxy marriage.

Once married, the paperwork can either be processed inside United States, if the beneficiary (the one obtaining the greencard) is in the United States or it can be processed overseas through the US consulates. In the case of processing the cases overseas, one can opt for a K3 visa to reduce the waiting time. Also if no marriage has yet taken place one can also bring his or her fiancé on a K1 visa. Such visas are only available for US citizen petitioners. On the other hand, in order for the marriage case to be processed in the United States, (a process called adjustment of status), the beneficiary has to have entered the United States legally albeit for one day. This means the person should have entered the US on a valid visa. Those who entered by crossing the border are out of luck unless they benefit from a provision under INA 245(i). This provision will require if any kind of petition was filed in the beneficiary’s favor on or before April 30, 2001. There are many requirements to prove that you benefit from this provision of the law. You need to speak to an experienced attorney about your particular case. Also if you have overstayed on your visa, you definitely need to speak to an immigration attorney before you proceed with any kind of case.

During the adjustment of status process, you should not leave the United States unless you file and get an approved reentry/parole permit. You should know that a parole or reentry permit is not a guarantee of entry in the United States. It only allows you to board a plane and arrive at the port of entry in the US where an immigration officer will determine whether to allow you inside the US or not. If you have overstayed for more than 180 days on your visa before applying for a greencard, you should definitely not leave the United States. Indeed you will be subject to a 3 years bar. This bar will prevent the person not only from getting back into the US but also in obtaining permanent residence. At that point only a waiver can help you. It is important to know that waivers are not easy to obtain. If you overstayed more than 365 days before applying, again you should not leave because this time you will be subject to a 10 years bar. The same rule as the 3 years bar will apply except the bar is for 10 years now and the waiver is a lot harder to obtain.

Once you file for your marriage petition, you will be called for fingerprint and for an interview within 3 to 8 months, provided the papers are properly filed. You are supposed to attend this interview with your spouse and proofs that your marriage is bona fide (good faith). At this point, it is highly advisable to have an attorney present with you during such interviews. Indeed a licensed attorney will be allowed to sit with you at the interview. If the adjudicating officer is satisfied with the interview, and the security check is finalized; he or she will tell you that he or she will issue an answer soon. You might get an answer the next week that your case is approved and a letter welcoming you to the US as permanent resident.

On the other hand, if the Immigration gets proof or admission that the case is fraudulent, you might be arrested on the spot. At this point you are highly advised to remain silent until your attorney is present. In another case scenario, if the officer is not satisfied, you might be called for another interview or they might deny your case. Technically, if it is denied they will give you one month before referring the case to the Immigration Judge. This will allow your attorney to possibly file for a motion to reopen the case. If this fails then the case will be argued in immigration court. The immigration judge will review the case de novo (again) and make a determination. This means you have to prove your case or the government has to prove that your marriage was not bona fide. Again, it is highly recommended to hire an experienced attorney to move forward in such cases.

If the case is approved, the beneficiary will be issued a conditional residence if at the time the green card is issued the marriage was less than two years. You should verify if you have a conditional residence. Usually a conditional residence green card will have an expiry date of 2 years as from the date of issue. You will need to remove that conditional residence status as from 90 days from the second anniversary of the issue of the greencard by filing a Form I-751. It is imperative to file the removal otherwise your status will be terminated. Usually if you are still married to you US citizen spouse, you will file a joint petition to remove such conditions. If you can prove your marriage was bona fide, you will be given a permanent residence card for 10 years approximately 6 months after filing the Form I-751. If the Immigration has reason to suspect foul play, they will launch an investigation and then might even call you and your spouse for a removal of conditional residence interview. If they are satisfied, they will grant you unconditional permanent residence. If not they will refer the case to an immigration judge.

The question is what happens if there is a separation or divorce before or during the 90 days preceding the anniversary of the expiry of the conditional greencard. The following are few potential scenarios.

  • Divorce finalized prior to filing the removal of conditional residence. In this case, one needs to file the removal of conditional residence waiver (Form I-751) even if the marriage has not reached two years. You will be required to prove that your marriage was entered in good faith and the marriage was not terminated through your fault. The process will follow typically the same path as when you file the case jointly with your wife;
  • Two years anniversary of the conditional green card has come to term and the divorce is not finalized. In this case, you will need to get the divorce finalized as soon as possible so that you can file the Form I-751 waiver; and
  • You were able to file your joint petition of removal of conditional residence and during this time your marriage is facing troubles and you separate and intent to divorce your spouse. You need to inform the USCIS and wait for the final divorce decree and file a Form I-751 again.

There are numerous other permutations of situations regarding the removal of conditional residence namely abusive US citizen spouses, or hardship situations. You should speak to your attorney regarding your particular case.

There are other provisions under the law to protect beneficiaries namely in case of abuse by US citizen spouses. In case, one is abused by his/her citizen spouse, one will be eligible to file for VAWA (Violence against Women Act) protection. Note that VAWA can be used in favor of man also. There are also situations where the US citizen spouse dies before the case is approved.

Because VAWA and other exceptional cases are very unique cases. We will try to cover them in our next article. And remember, it is highly recommended to speak to an experience licensed attorney before filing any kind of immigration case.

The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the site without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally www.peerallylaw.com Ph:510 742 5887

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1. Latest Articles & Updates

2. Choosing the L1A or L1B to enter the United States.

The United States has created an immigration solution for companies with subsidiaries, affiliates, and branches around the world. The L-1 classification allows foreign nationals employed outside of the U.S. to enter the U.S. and work for a qualifying subsidiary, affiliate, or etc. There are two types of L-1 classifications available: (1) L-1A, for individuals employed in a managerial or executive capacity, and (2) L-1B, for individuals with specialized knowledge capacity.

Today, transnational corporation commonly have numerous subsidiaries, affiliates, and branches throughout the world. Subsequently, companies may need to temporarily transfer a high-ranking or uniquely talented employee to an affiliate in another country to handle some specialized business.

Generally, the USCIS initially grants an individual L-1 status for three years. However, an individual’s L-1 status will initially last only one year if he or she is entering the U.S. to work for a start-up company. Once in L-1 status, an individual can extend their status after the initial period expires. Individuals in L-1A status can extend their status for up to seven years, while individuals in L-1B status can extend their status up to five years. Note that since all employees are hired on an “at-will” basis, the L-1 U.S. employer is not required to retain the employee for the entire seven or five year period. Finally, if the employer/employee relationship endures for the entire L-1 period, the individual must spend one full year outside of the U.S. before her or she is eligible to apply for a new period of L-1 status.

Once granted L-1 status, an individual’s spouse and children are eligible for L-2 derivative status. Individuals in L-2 status are not authorized to work unless they apply and receive an employment authorization card (EAD). However, the USCIS allows individuals to attend a U.S. school without changing his or her immigration status.

Requirements

An L-1 candidate must provide the USCIS with (1) proof of employment with a qualifying U.S. company; (2) proof that the L-1 employer generates sufficient business to employ the candidate; and (3) evidence that the candidate will be engaged in a “managerial or executive capacity” or “specialized knowledge capacity.” These three requirements are explored in further detail below.

Proof of Employment with a Qualifying Company

The L-1 candidate must be employed with the petitioning company’s affiliate, parent, or subsidiary for a continuous period of one-year within the three-years prior to filing the petition or entry into the U.S. This employment must have been in either a managerial/executive capacity or specialized knowledge capacity.

The candidate then must submit the required supporting documentation about the petitioning employer:

  • * Evidence that the company abroad and the petitioning company are related. The critical issue is whether either of the companies exercise control over the other company. This is a relatively flexible requirement, as even a 50/50 joint venture qualifies;
  • * Detailed written description of the petitioning company’s business, including its history, facilities, resources, and organization;
  • * Description of the company’s employees along including job titles and duties;
  • * Evidence that the company will continue to do business abroad during the candidate’s U.S. employment; and
  • * Documents evidencing the company’s corporate organization and long-term financial viability.

Doing Business in the United States

The L-1 candidate must also include evidence that the petitioning company is engaged in sufficient business to employ the candidate, including:

  • * Detailed description of the company’s U.S business, including history, number of employees, locations, and any marketing materials. This is especially important if the company is a start up business;
  • * Corporate documents such as financial statements, incorporation documents, and SEC reports;
  • * Evidence of assets such as corporate bank account statements;
  • * Copies of lease or purchase options for buildings or spaces;
  • * Detailed description of the company’s employees, including resumes, job titles, and job offer letters; and
  • * Name and title of officer who will sign forms.

Managerial or Specialized Knowledge Capacity

After the candidate establishes proof of employment with a qualifying U.S. company, he or she must submit documentation that the candidate qualifies for either an L-1A or L-1B classification.

The candidate qualifies for an L-1A classification if (1) he or she is employed in a “managerial” capacity, meaning that the candidate primarily supervises or controls the company’s day-to-day operations, or (2) he or she is employed in an “executive” capacity, meaning that the candidate makes the company’s overall business and policy decisions.

An L-1B classification may be appropriate if the candidate possesses “specialized knowledge” essential to the company’s business affairs. This is a relatively broad classification as it can include specialized knowledge of a company’s machinery or operations, or if the individual has expert knowledge on a a company’s processes and organization.

Additionally, L-1A and L-1B candidates may also include the following supporting documentation:

  • * Evidence of higher education, including degrees, diplomas, transcripts;
  • * Detailed resume evidencing the candidate’s continuous employment with the company for one-year within the three-years preceding the filing of the petition;
  • * Evidence that the candidate was employed in either a managerial/executive or specialized knowledge capacity abroad, and that the candidate will continue this employment in the U.S.;
  • * The candidate’s salary/compensation abroad and in the U.S.;
  • * Corporate organizational charts detailing where the candidate is employed in the corporate hierarchy;
  • * Copies of passports and any other supporting documentation.

Filing Procedures

To apply for L-1 status, the candidate must file an I-129 form with the USCIS, along with the supporting documentation listed above. Note that individuals employed outside of the U.S. are advised to attain an L-1 visa before her or she begins employment with a U.S. affiliate. This is because although an individual may be granted L-1 status, that does not necessarily mean an individual has an L-1 visa. Therefore, though the individual may be allowed to stay in the U.S., he or she cannot travel until they get a visa at the appropriate consulate. To avoid any such inconveniences or legal problems, individuals should obtain a visa before beginning employment in the U.S. This is why it is recommended to hire a good lawyer to assist you in the process. The Shah Peerally Law Group PC has been providing L1A and L1B immigration solutions for many years, feel free to contact us at 510 742 5887.

The preparation of an L1 visa or any kind of visas requires a good understanding of immigration laws and regulations. There are other important issues not covered in this article regarding L1 visas such as the petition to obtain a work permit for L2 dependents and L1 blankets. One should consult a licensed and experienced immigration lawyer before moving forward with any immigration case(s)

If you have any questions or concerns, you should contact an experienced immigration attorney for further details. Our office has prepared many similar applications, feel free to contact us on (510) 742 5887, should you need any additional information.



The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state.

3. Radio Show Selected Questions 2

By: Shah Peerally Esq.

1) My wife recently got H1b on October and basically for two months she didn’t have a job and November last week she got a job, so I just want to know how if she doesn’t have paystubs for November and October is that ok or how is that?

- Ok did she transfer?

- No, that was a finished h1b and early the project was dead and then later on it was scraped out.

- Ok the first month of the H1b, there’s no real requirement to have what we call a paystub, but after that there might be a problem at a later stage but it’s not about the monthly paychecks, but what they are looking at meeting of the requirements of the total what they are suppose to pay up, for example, let’s say they’re going to pay $100,000 at the end of the year it has to show $100,000, so the reasons they want the check stubs to show that you maintained status in this case it may be a problem but one way to reset is that leave the country and come back, its only one month that they need the paycheck stubs. Later on, when you apply for GC they can come back and question the maintenance of status.

2) My GC is filed under EB category and I been waiting for last 6 years and I’m about to make a decision to do a job change to a new company what would you recommend to file an new H1 transfer or should I go on EAD?

- Well you don’t really have to; your I-140 is approved right?

- Yes, I-140 Approved

- If you’re I-140 is approved then you are not obviously qualified for EB2 probably or even if you do there are few reason why people go on H1b but I always recommend to use your EAD, but there are few reasons for one, for people, for example, who don’t feel like there I-140 is secured, just to let you know once you’re I-140 is approved and 180 days have passed (after filing of the adjustment of status I-485) the previous company cannot revoke the Form I-140, that means you can keep that and move under AC21 (American 21st Century Act ) you can move to another company on EAD.

- Now the question should you keep the H1B? Are you married? Your wife also has EAD?

- Yes I’m married, yeah she is working on EAD

- Then you don’t really need to go on H1b, that is not required, the only reasons I would ask you to do that if you feel like there is some problem with the company and there might be a chance down the road that an I-140 is revoked, not based on the company own stuff but based on the government thinking that there was fraud or something involved but if that’s not the case you don’t need to keep the H1b going and how many years of H1b have you had going so far? Then the other reason is if your spouse need an H4 because the spouse was not able to get an EAD (priority dates not current).

- I have completed 6 years on H1b and I got extension with the present company for 3 more years.

- And when is it Expiring?

- 2015

- Well this is how it works you don’t really need to do that but if at a later stage you need h1b before 2015, you can actually use that do a transfer and keep that 2015 priority date even if I-140 is revoked and if not revoked you can use it to extend with another I-140 you can extend a new h1b, but honestly you don’t really need it. In this case, it is something your can decide depending on how strong is the company who file for your I-140.

- I can change the job on EAD is that what you’re saying?

- Yes, EAD let me explain to you what you are doing right now, EAD is a work permit you can work anywhere actually, you can work at night at another company which is not related, but the AC21 which is parking of the GC, I call it the parking because you need to have the company to go back to , when the GC comes in your hand so that is why the AC 21 is just a parking you have to go there when you get the GC, there is nothing that prevents you from going back to company A, but we need to do AC21 letter, then you can transfer it’s not really a transfer its just your taking the GC from company A and parking it with company B. So the answer is yes you can go ahead and move on the EAD.

- And my educational qualification is 3 years in Bachelors degree in India so that’s why I’m not qualified.

- That’s why you’re not going to get EB2, Keep it on EB3 but make sure your moving to same or similar position.

3) I have a question starting a business in US I’m on H1, am I able to start a consulting company?

- Not really because, the answer is yes and no – you can own a company but you cannot be active in the company like for example you can own shares in Microsoft but you’re not going to be active in the company so its dormant so that’s allowed but if you’re going to do like daily work like signing checks taking orders and things like that no its not allowed – you’re in violation of your H4 this is why we are very upset because the law just locks people on H4.

- Ok, can I even hire the people?

- The problem is what do you consider active, let’s say you set up the system and then you just own the company your just the share holder, you don’t get involved in the day to day running of the business you should be fine but the problem is that if the immigration look at it will say – ok how did you do that? You have to talk to the people owning your business, you have to do the accounting, and you have to do things like that then you are in violation of the H4, so it is very difficult to run a small business on H4. Even if the law allows you to own a business you cannot be participating in it but there is no loophole really because if there was one people would have taken it. I have a very good article on this H4 options on my website www.peerallylaw.com you can read about it, but technically you cannot have a small business because you will have to be active in it.

- Even on H1?

- H1 same problem, unless there’s an H1 attached to that company, you’re not technically allowed to do any kind of active role, you cannot be a director you can not be in a marketing role, you cannot be in sales, many people ask me well how will they know, well that’s an different issue, that’s a matter of proof, if you lie, it is your call, but we don’t advise anybody to lie, but that’s the way that visa is designed, even working remotely while you’re sitting in US can be a problem.

4) I have a question regarding transfer of a status, so when I apply change of status from H1b to F1 from within staying in the US it might take between 3-6 months but does my current employer gets notified or it can affect my current status in any way.

- Ok you’re on H1b right?

- Yes

- Ok there are 2 rules if you’re transferring from one H1b to another under AC21 rule you can start working on the same day you file the transfer even if it is not approved.

- Second rule no they don’t get notified what is happening it goes only with the new company, now if you don’t want to move before it is approved then do premium processing and then as soon as its filed even the employer knows about it and they send a cancellation notice on your current H1b so it doesn’t matter because the transfer has already passed.

- No sir I’m asking from H1b to F1

- Oh yes, no they don’t get informed about it, so you stay on H1 until the F1 is approved, but sometime they might send a letter by mistake to your employer but no they cannot because it has nothing to do with the employer .

>> Radio Shows Selected Questions (Part 1)

>> Radio Shows Selected Questions (Part 3)

The information contained in these answers is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, radios shows, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient’s state. Shah Peerally is the managing for the Shah Peerally Law Group PC located in Newark CA. The office main area of practice is Immigration law www.peerallylaw.com Ph:510 742 5887

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4. Do I have to be physically abused before filing a VAWA case?

No –  contrary to popular belief, one does not have to be physically abused to file under VAWA. Mental, physical or even prevention of filing the right immigration papers can be construed as abuse. VAWA is a powerful legislation and it helps women, children and men.  The provisions of VAWA (Violence Against Women Act) can also be used in situations of removal of conditional residence – Form I-751.

You should call our office on 510 742 5887, we will be glad to evaluate your case.

I751

5. Do I have to be divorced before filing VAWA?

No, however, you have only two years after the anniversary of the finalization of the divorce to file the petition. Please make sure that you are filing under the prescribed time.

VAWA is one of the most powerful legislation, however unless you take advantage of it on time, you might miss the chance. Note that your spouse has to be a US Citizen or permanent residence to benefit from the Violence Against Women Act.

In case you are victim of domestic violence, and it was reported to the police, and your spouse is not a US citizen or permanent resident, you might be able to opt for the U Visa.

In case you are victim of domestic violence call 911. And if you want to get some possible immigration benefits, feel free to call us at 510 742 5887

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