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Immigration and Family LawSelected Issues

Ellis D. Bingham III218 16th St. N.

Bessemer, AL 35020bingham@bingham-law.com

205-424-5550

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TerminologyAlien — Any person not a citizen or national of the United StatesConditional resident — Any alien granted permanent resident status on a conditional basis (for example, a spouse of a U.S. citizen or an immigrant investor) who must petition to remove the conditions of his or her status before the second anniversary of the approval date of his or her conditional status

Employment Authorization Document (Form I-765/EAD) — A general term used to describe a card issued by USCIS on Form I-765 with the title “Employment Authorization Card” to aliens who are authorized to work in theUnited States in order to evidence their employment authorization. The card contains a photograph of the individual and sometimes his or her fingerprint. An alien who has been issued this card usually has open-market employment authorization, but there are exceptions.

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Terminology

Refugee— Generally, any person outside his or her country of nationality who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution. Persecution or the fear must be based on the person’s race, religion, nationality, membership in a particular social group or political opinion. For a legal definition of refugee, see section 101(a)(42) of the Immigration and Nationality Act (INA).

USCIS — An abbreviation for U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security.

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Visa - A U.S. visa allows the bearer to apply for entry to the U.S. in a certain classification (e.g. student (F), visitor (B), temporary worker (H)). A visa does not grant the bearer the right to enter the United States. The Department of State (DOS) is responsible for visa adjudication at U.S. Embassies and Consulates outside of the U.S. The Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) immigration inspectors determine admission into, length of stay and conditions of stay in, the U.S. at a port of entry. The information on a nonimmigrant visa only relates to when an individual may apply for entry into the U.S. DHS immigration inspectors will record the terms of your admission on your Arrival/Departure Record (I-94 white or I-94W green) and in your passport.

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Provisional waiver — Waiver for individuals who are otherwise inadmissible due to more than 180 days of unlawful presence in the United States, based on a showing of extreme hardship to certain U.S. citizen or lawful permanent resident family members, which allows the individual to return after departure for an immigrant visa interview at a U.S. embassy or consulateParole in place — Immigration and Nationality Act section 212(d)(5)(A) gives the Secretary the discretion, on a case-by-case basis, to “parole” for “urgent humanitarian reasons or significant public benefit” an alien applying for admission to the United States. Although it is most frequently used to permit an alien who is outside the United States to come into U.S. territory, parole may also be granted to aliens who are already physically present in the U.S. without inspection or admission. This latter use of parole is sometimes called “parole in place.”

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Who Can Petition a Noncitizen for a Green Card?

The categories of qualifying relatives do not include everyone who is a willing participant in the project. The following relationships are considered qualifying relationships for family-based immigration, and benefits may be sought from these relationships: Immediate Relatives (i.e., the legal spouses, children under age twenty-one, and parents of adult United States citizens) are accorded immigration benefits at the head of the queue. These persons, if otherwise eligible, may apply straight away for permanent residence:  

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Legal spouses of United States citizens

Unmarried, under age twenty-one children of United States citizens Parents of United States citizens where the petitioning child is at least twenty-one years old Widows of United States citizens who had been married at least two years at the time of death of the United States citizen-spouse. (There are exceptions.)

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Who Can Marry?

Not every marriage is considered valid for immigration purposes, and not every beneficiary is a qualified one. This is critical to determine during the case intake and evaluation stages. One of the most important requirements for filing a marriage case is that the marriage is valid for immigration purposes. Some are not. Polygamous marriages, same-sex marriages, unconsummated proxy marriages, and some common law unions are not valid for immigration purposes.

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Fraudulent Marriages

Marriages (or divorces) entered into for the sole purpose of circumventing immigration law, are not valid for immigration purposes. Fraudulent marriages are taken extremely seriously by the CIS. The Immigration and Nationality Act states clearly that any benefit applied for through marriage adjudicated fraudulent will be denied, and this determination will impact any later marriage-based filings at the CIS. The District Director “will deny a petition for immigrant visa classification filed on behalf of any alien for whom there is substantial and probative evidence” of an attempt or conspiracy to enter into a marriage to evade immigration laws.

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Common Law

In the absence of a marriage certificate, the official verification, or a legal brief verifying full marital rights, the Board of Immigration Appeals has established that a common law marriage or cohabitation is considered to be a “valid marriage” for purposes of administering U.S. immigration law, provided:

It bestows all of the same legal rights and duties possessed by partners in a lawfully contracted marriage; and

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Such cohabitation is recognized by local laws as being fully equivalent in every respect to a traditional legal marriage, i.e.:a) The relationship can be terminated only by divorce; b) There is a potential right to alimony; c) There is a right to intestate distribution of an estate; or d) There is a right of custody, if there are children.

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The Violence Against Women Act

Known as VAWA, this section of the law enables qualified abused fiancée’s, spouses, parents, and children of United States citizens and legal permanent residents to apply for a green card in a manner that removes the abuser from the picture. The abuse survivor may be able to self-petition for a green card if he or she can demonstrate that the marriage ended in divorce in the past two years because of abuse, or because the petitioner was a bigamist, or the abuser lost his or her immigration status because of domestic violence, or his or her spouse died within the past two years.

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The abuse survivor must demonstrate that he or she is a person of good moral character who during the marriage was battered or subject to extreme cruelty by the green-card holder or U.S. citizen or LPR spouse or parent. If all criteria are met, the abuse survivor may get to remain in the United States as a green-card holder.

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Divorce and the Department of Homeland Security

Divorce or legal separation can cut off the alien’s eligibility for the spousal immigration benefit. The Yates Memo of March 2003 states that the adjudicator “may deny the visa petition in cases where the parties entered into a valid marriage, but have since obtained a legal separation prior to the final adjudication of the visa petition. The relevance of separate domiciles and of cohabitation, however, is valid as in determining the validity of the marriage at its inception.

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Marriages that are indeed bona fide at inception sometimes show signs of wear and possible tear at the time of interview. The Yates’ Memo speaks to the limits of inquiry from the adjudicator and is very clear that the Service’s questions need to pertain to the bona fides of the marriage, not to its “viability,” i.e., the probability of the parties remaining married for a long time.

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Representing the United States Citizen Client

When the United States citizen client and a foreign-national uses the services of a family lawyer in connection with marital matters immigration law issues may arise. The United States citizen client may ultimately be the easiest to handle in the immigration area, as almost nothing that he or she attempts will alter his or her ability to voluntarily remain in the United States. The immigration laws may subject the United States citizen to certain requirements while seeking a benefit on behalf of a foreign-national.

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The actions United States citizen can dramatically effect change in the life of a foreign loved one however. U.S. citizens may sponsor the largest Their relationship to a spouse, parent, or child who is a foreign national may allow the waiver of certain immigration violations (even crimes in some cases) allowing the foreign national relative to acquire or retain status in the United States. Loss of the United States citizen relationship can also have the opposite ultimate effect— loss of status for the foreign national.

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Representing the Legal Permanent Resident Client

The LPR client is herself a guest of the United States, albeit an indefinite one, subject to good behavior. The status of this client and her ability to remain in the United States may be compromised by certain events such as a domestic violence or other criminal conviction; actual or apparent sham marriages; failure to abide by immigration laws and requirements regarding green-card status, such as failure to remove the conditions from a restricted green card; failure to notify the Service of an address change or abandonment of green-card status itself, whether intentional or not. In addition, the ability of an LPR to sponsor a family member is not nearly as great as that of a United States citizen, but the waiver power is nearly identical.

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When counseling the LPR client in family law matters, it is important to keep the “indefinite guest” status firmly in mind. The timing of typical family law matters, such as marriage and divorce, may be critical to her ability to retain her status in the United States.

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Conditional Permanent Residents

Conditional permanent residents are immediate relatives who applied for green cards, and were given temporary green cards if the marriage to the United States petitioner was less than two years old at the time of final adjudication. They are required by law to remove the condition on their green card. If the conditional LPR spouse or child does not do this, then that individual’s status will be terminated, and she will be vulnerable to deportation from the United States. USCIS expects that, absent a waiver, the petition to remove the conditions will be filed by the married couple.

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A waiver exists for the following circumstances: death of the United States citizen spouse; divorce or annulment; abuse or extreme hardship. If a conditional green card (marriage less than two years old) was granted, then this client facing divorce from or death of the sponsor must apply for a waiver of the joint filing requirement. Mere separation is not grounds for a waiver of the removal of condition, while a divorce does provide grounds for a waiver.

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Representing the Illegal Alien Client

Clients with no valid status in the United States are vulnerable to deportation (removal). They will experience increasing difficulty acquiring and renewing identity documents and employment; departure from the United States may subject them to a bar to reentry as long as ten years in duration. They may have United States citizen children that guarantee them no ability to remain in the United States.

If this client has any arrests or convictions, the client is vulnerable to arrest and detention and must live with the threat of immediate deportation without a hearing.

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Divorce may destroy this individual’s present ability to seek legal status hence it may heighten the stress inherent in the service one is providing. Any lawyer who represents an undocumented alien should proceed with care. Many undocumented aliens in the United States are here because, although they entered legally, they overstayed the allowed time period. Overstays are just as vulnerable to deportation as the foreign national who somehow made her way into the United States, disappeared below the legal radar, and is now working in what we have heard described as the “informal economy.” Before any paperwork is filed on behalf of an undocumented alien, a well-thought-out plan is essential.

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867 So.2d 338 Court of Civil Appeals of Alabama Katerina KORN v. Michael KORN.

Former wife appealed from judgment of divorce of the Circuit Court, Jefferson County, No. DR-01-1348, Ralph A. Ferguson Jr. On overruling of application for rehearing, the Court of Civil Appeals held that: (1) evidence was sufficient that joint legal custody, rather than sole custody vested in mother, was in child’s best interests; (2) trial court could not include custodial-reversion clause in divorce judgment, providing that physical custody of child would devolve upon father if wife left United States; (3) alimony award of $100 per month, conditioned upon former wife’s remaining unemployed and her remaining in the United States, was clearly insufficient and required reversal and remand; and (4) trial court acted within its discretion in directing that parties should be responsible for their own attorney fees.

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Trial court could not include custodial-reversion clause in divorce judgment, providing that physical custody of child would devolve upon father if mother left United States; while a present limitation upon where custodian lived could be justified where it was in the best interests of the child at the time of the judgment, custodial-reversion clause amounted to no more than conjecture concerning what might be in the best interests of a child in the indefinite future.

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Where primary physical custody is awarded to one parent, Alabama law requires trial court, in determining whether that custodial arrangement should be altered in the future, to ascertain whether material change in circumstances has occurred since last custody judgment was entered, whether change of custody will materially promote child’s best interests, and whether benefits of changing custody outweigh disruption of uprooting child; in other words, custodial parent’s change in residence is but one factor for trial court to consider in deciding whether custody should be modified.

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468 F.3d 230 United States Court of Appeals, Fourth Circuit, Ajmal JAHED, Petitioner–Appellant,

v.Neil ACRI, Acting Field Office Director for Detention and

Removal Operations, Respondent–Appellee.

Background: After the Board of Immigration Appeals (BIA) affirmed finding that alien, a native of Afghanistan, was not a United States citizen and not entitled to asylum or withholding of removal, alien petitioned for writ of habeas corpus with respect to his continued pre-removal detention. The United States District Court for the Eastern District of Virginia dismissed, and alien appealed.

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Holding: The Court of Appeals, Williams, Circuit Judge, construing the habeas petition as a petition for review of removal order, held that alien did not acquire derivative United States citizenship upon his father’s naturalization.

A foreign decree of divorce is valid everywhere and will be recognized under the principle of comity, but the foreign court must have jurisdiction to render a valid decree.

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The divorce of alien’s parents, which took place in Pakistan, was not valid for purposes of statute governing derivative citizenship, such that alien’s parents were not legally separated at time of father’s naturalization, and therefore alien did not acquire derivative United States citizenship upon that naturalization; parents were not Pakistani citizens, were not married in Pakistan, and never established domicile in Pakistan. Immigration and Nationality Act, §321.