Part of the legal immigration services provided at Catholic Charities includes preparing and filing Provisional Waivers – often referred to as “stateside waivers.” We typically prepare these for spouses of US citizens to seek a waiver of inadmissibility for the three and ten-year bars due to unlawful presence and to remain in the US (stateside) while that waiver is being considered.
For the most part, a husband or wife entered the US without going through a checkpoint, often just walking across the border, and by doing that, avoided being inspected. Without that inspection, immigration law precludes them from applying for residency in the US through the adjustment of status process; instead they have to return home and go through consular processing. While the provisional waiver process has its flaws, most legal practitioners agree that there are still more pros than cons when assessing it.
There was a lot of excitement when the provisional waiver process was announced in January, 2013 by the former Secretary of Homeland Security Janet Napolitano. Not long after, the excitement died down as flaws were quickly exposed in how they were being adjudicated and processed and unfortunately, that criticism remains today. However, prior to that announcement, immigrants seeking a waiver for unlawful presence were faced with leaving the US for a considerable amount of time (typically 6 – 12 months or more) while it was being considered at their home country’s embassy and this created an enormous amount of stress on them.
For those who didn’t want to face the threat of a permanent bar that could have been created as a result of leaving the US, few options remained beyond staying in an undocumented status or seeing if there was an outside chance they qualified for another immigration benefit such as TPS or asylum. And for those who decided to go forward with consular processing had to deal with the fact that they could be stranded outside of the US with no legal way to return to the lives they had created here. They also knew they had no choice but to endure whatever emotional strain or financial hardship came their way as a result of returning to their home country, sometimes a country they were afraid to return to because of gang activity and other violence.
Recently, we have been seeing an increase in immigrants who are married to a US citizen and are only now seeking to apply for consular processing (even though the provisional waiver has been available since 2013). I often hear “I heard of someone who got their green card this way” so word on the street is the waivers are getting approved to some extent. Plus, since the provisional waiver is either granted or denied prior to leaving the country, they feel less anxious about the process. Not only is their required time out of the US shortened and therefore doable, they know prior to leaving that they will not be barred from reentering the US due to their time accrued here in an unlawful status.
Provisional waiver applications are still getting mixed reviews on how USCIS is adjudicating them and there has been valid criticism surrounding them including the high application fee, the relatively high denial rate, and the fact that there is no appeals process for denials. But the fact that USCIS tried to create an option for immigrants with unlawful presence to at least remain stateside while their waiver is being considered and save them the anguish of returning home to face many unknowns is still notable. Despite its shortcomings, I still find applying for a provisional waiver to be worth the risk for many clients I am coming across. But I also have my fingers crossed USCIS will work harder towards figuring how to correct its flaws.
I recently met with a client who had received a notice from USCIS stating it was time for him to file an I-751 form in order to have the conditions removed from his green card. Individuals who enter the US based upon marriage to a US citizen or permanent resident usually enter as “conditional residents.” This means that their status in the US is conditional upon their marriage and is valid for two years. After the two-year period, USCIS basically takes another hard look at the couple’s marriage to see if it was a sham or fraudulent marriage (a.k.a. green card marriage) or to see if it was bona fide and the couple entered into their marriage in good faith.
The I-751 form, Petition to Remove Conditions on Residence, is typically signed and filed by the married couple; it is a joint endeavor. For those foreign national spouses who remain part of a couple, the process can be somewhat complex but it is still straight forward. However, for those whose marriages didn’t pan out, it can be a little trickier. As a result, the two-year expiration date deadline can be quite a stressful time if a foreign national spouse ends up a foreign national divorcée or divorcé. This was pretty much the circumstance of the client I mentioned above; his marriage had ended in divorce and he was worried he would now be deported.
When I first meet with conditional residents prior to preparing their I-751, one of the first questions I ask is if they are still with their US citizen spouse, and if not, if they are separated or divorced. As we all know, the divorce rate in the US is relatively high – depending on whose statistics and what demographics you are looking at, it can be up to 50%. While I don’t know the statistics for divorce rates between US citizens and foreign nationals, I’m sure it is also relatively high; why should those marriages be any different? But contrary to popular myth, conditional residents will not automatically be deported or have to fear living in the US undocumented if their marriages don’t work out. Fortunately for those who entered into their marriage with good faith but whose marriages ended up with a divorce, there is a legal avenue for them to still become legal permanent residents.
The I-751 provides a hardship waiver that allows divorced conditional residents to get the conditions removed from their green cards. By checking the box that states “I or my parent entered the marriage in good faith, but the marriage was terminated through divorce or annulment,” the foreign national spouse is able to file form I-751 without their spouse’s help. I have represented several divorced clients who successfully apply for a waiver and are now legal permanent residents. But checking the box is the easy part, the real work is providing solid evidence that the terminated marriage was indeed entered into in good faith and it was not a green card marriage.
I often remind my clients that uncovering sham marriages is a top priority for USCIS and they will take any opportunity if they think any fraud was involved, including the I-751 process or even when a legal permanent resident applies for citizenship. Therefore it is crucial for conditional residents to collect and provide the evidence needed to support their claim that they attested to when checking the waiver request that states “I entered the marriage in good faith.”
The burden of proof required by the I-751 is quite steep and a critical part of that burden is providing bona fide evidence that the marriage was real. My advice for all conditional residents, regardless if they are filing jointly with their spouses, or applying on their own and requesting a waiver, is to seek legal advice and representation. This process can be tricky and a legal advocate can greatly assist them in presenting a solid case, writing an affidavit for those needing a waiver, and preparing them for their green card interview.
The other day I met with Elsa (not her real name) who has had a lawful status in the US since the late 90’s thanks to Temporary Protective Status (TPS). The US enacted the TPS program through the Immigration Act of 1990 as a way to aid countries that were being faced by difficult but temporary conditions such as war, epidemics, or natural disasters. This program created a process for foreign nationals to stay in the US if there were conditions in their homelands that prevented their safe return. It also provided a way for foreign nationals, such as Elsa, to have the opportunity to live and work in the US without the fear of deportation, but only temporarily.
For 15 years now, Elsa has been doing what it takes to stay in good status as a TPS beneficiary. She undergoes criminal background checks, files tax returns, has to demonstrate she has good moral character, and she saves the fees (approximately $500) every times she needs to have her application prepared and filed. For the past few years Elsa has been coming to Catholic Charities for assistance with re-registering her TPS since it is valid for only 18 months. Ithacan immigrants registered for TPS tend to be from Central American countries that have TPS designation: El Salvador, Honduras and Nicaragua. The current list also includes Haiti, Sudan, South Sudan, Somalia, and Syria. As of yesterday, Liberia, Guinea and Sierra Leone were also added due to the Ebola virus outbreak.
While this temporary status safeguards Elsa from deportation or detention and allows her to legally work in the US, it also places her life in a legal limbo since she never knows when her status could be terminated. For 15 years she has had to live with the ambiguity that if her country is deemed safe to return to, her lawful presence in the US could come to an end. Every time I see Elsa, she asks me the same question – “Why can’t I get a green card?” After spending 15 years in good status, albeit temporary, I think this is a valid question.
As depicted in the chart above, there are well over 300,000 TPS beneficiaries in the US. The majority are living in urban areas but there are others who have chosen rural areas, such as Ithaca, to make their temporary home. Similar to Elsa, they often have strong ties to their community and feel like they are in their permanent home. The ones I have met locally are for the most part living humble lives as they work in relatively low wage jobs often as cleaners or housekeepers, as farmhands in rural parts of the county, or as cooks or dishwashers in Collegetown or downtown Ithaca.
Compared to the several million of undocumented immigrants who are waiting for Comprehensive Immigration Reform (CIR) or an executive action by President Obama to see if they can get relief from the fear of deportation and the opportunity to work with authorization, Elsa’s status is almost enviable. For 15 years she has been shielded from deportation or detention and has been able to participate in the formal economy. She was also able to get a driver’s license. But the caveat is this is only temporary. Therefore, as fortunate as her position may seem to some, the fact is unless there is some legislative change through Congress, Elsa won’t be eligible to get a green card anytime soon and will have to live in a legal limbo.
Even though their status says “temporary,” the roots TPS beneficiaries are putting down in the US run deep but unfortunately may not be safeguarded or permanent. For many of them, repatriation to their former country isn’t a viable option, so they would be forced to go back to being undocumented and living in the shadows if their country’s designation is terminated. They would have to leave the formal economy and move to the underground economy. This is unsettling and that is why when someone like Elsa, who has paid her dues and is a contributing, law abiding member of our community, repeatedly asks “Why can’t I get a green card?” I, too, have to wonder, why not?
Part of the legal services ISP provides involves helping foreign nationals (FN) obtain legal permanent residency through their US citizen spouse. We file many spousal petitions, to be processed either in the US or abroad, and fiancé(e) visa applications (where the US citizen and FN fiancé(e) are required to marry within 90 days of arriving in the US). When I first began filing these types of forms, I have to admit I was completely naïve to the fact that the majority of the petitioners I was assisting had met their spouses or fiancé(e)s on-line.
I remember being surprised when one of my first spousal petitioners responded to my question of how she met her husband with a very matter-of-factly “in a chatroom,” as if everyone met that way. He was from a country known for their beautiful beaches and prestigious universities and I had assumed she had met him there while vacationing or studying abroad. Like I said, I was naïve. I had never delved into the world of on-line dating so this was pretty new to me. When I look back, the answer of “he friended me on Facebook,” has far outweighed “we met through friends.”
Being from different parts of the world isn’t a deterrent to starting a relationship when virtually you can meet anybody on a smartphone. And those virtual relationships can quickly evolve into a marriage. For marriages that are going to involve a FN spouse, the impracticalities of picking up and moving to a new country or navigating a fairly complex immigration system are often overshadowed by the couple’s desire to tie the knot and quickly start living their lives together. Even though I am still fairly neutral as to whether I think on-line dating leads to more successful marriages or heartbreaks, I do have some thoughts and words of caution.
Admittedly, I do have clients who met on-line and seem happily married, but I have also seen an increasing number of former clients with broken hearts – enough that I feel compelled to blog about them. I have witnessed people who were shamed, hurt, and/or humiliated even though they entered with good faith into their marriage or engagement. Unfortunately for them, their partners either misrepresented who they were during their virtual relationship or they never had good intentions when making promises of lasting love or exchanging vows or they simply changed their mind. And I have seen both sides get duped – sometimes it’s the US citizen spouse or fiancé(e) who is deceived and other times it’s been the foreign national.
For those relationships that didn’t pan out, no amount of Skyping, Facebooking, or chatting on-line could have teased out what lay ahead. Things like alcohol or substance abuse, chronic infidelity, controlling behaviors, or downright lies aren’t revealed in the chat rooms. One woman described how loving and attentive her US citizen spouse was when he visited her in her home country, and how respectful he had been to her family, and then upon her arrival into the US he immediately began sexually abusing her. Even though there are safeguards in place, such as the International Marriage Broker Regulation Act (IMBRA), that provides some protection by requiring any violent criminal histories of sponsoring US fiancé(e)s/spouses (including domestic violence) be revealed to the FN, this woman suffered through several months of abuse, mainly because her spouse had never been arrested.
Another FN spouse took the long journey to the US only to have her US citizen spouse, a former drug addict (unbeknownst to her), relapse shortly after they were married and begin using again. She didn’t want to stay married to a drug addict, but she also didn’t want to shame her family by getting a divorce. Another US citizen traveled abroad to meet her on-line fiancé, posting every part of her trip on Facebook, only to have him humiliate her by standing her up at the altar. And more recently, there seems to be an uptick in the number of women calling to inquire about how to bring their new spouse or fiancée to the US who are 20 – sometimes 30 – years younger than they are. I always ask, “How did you meet?” but I already know the answer…. “on-line.”
Marriage is complex. Entering into a marriage with someone from a different part of the world (even if the petitioner formerly lived there), or from a different culture can add to that complexity. And a marriage resulting from on-line dating certainly has to add another layer to an already multi-layered situation. As chat rooms, Facebook, and on-line dating services become the normal way for US citizens to meet potential foreign national spouses, I think it is important for both parties to vet out who their partner is. Personally, I would do a background check at the minimum. I would also caution someone entering into a marriage that started on-line to slow down and do their homework before rushing into something as complex as a marriage. Legal practitioners can vet your spousal or fiancé(e) petition, and USCIS and the NVC can further vet and then approve or deny it, but only you can vet the person you say “I do” to.
This week’s Ithacan Immigrant features Abdul, who originally moved to the US from Morocco. Abdul owns a pizzeria in Lansing and we have been assisting him with petitioning to bring his wife to the United States.
ISP: Why did you come to the US?
Abdul: I came to get more experience – like with education. Also, to learn about the traditions here and the chance for more opportunity.
ISP: Why did you decide to live in Ithaca?
Abdul: I came here because my friend was living here.
ISP: What was your first impression of Ithaca?
Abdul: When I first saw Ithaca I thought it was very different than my country – a big difference. Because I came at the end of March, it was still snowing. I remember one big snowstorm when I first came – I was wondering about this because when I left my country it was sunny – it was such a big difference.
ISP: What is your favorite American food?
Abdul: It’s pizza! I like cheese pizza, just regular cheese pizza.
ISP: Where is your favorite place to shop in Ithaca?
Abdul: For food shopping, I like Wegmans. I like the kind of vegetables they have, like okra – it’s my favorite food from my country. And I find it here in Wegmans – that’s a big thing.
ISP: What is the biggest difference between Ithaca and your home town?
Abdul: My home town specifically is an oasis. It’s a little bit dry, it’s hot in the summer and cold in the winter but it’s different than here. There is no snow. Here there is a lot of rain and snow. But where I am from, it is dry.
In the early 1990’s, I worked for Miami-Dade County in a refugee program that provided advocacy for Haitian & Cuban women who were involved in domestic violence. At that time, the Violence Against Women Act (VAWA) had not been put into legislation and there was little legal remedy or relief for battered immigrant women whose immigration status was not permanently established. Since then, there have been major steps in assisting battered immigrant women as immigration law has evolved to include self-petitions for relief through VAWA, as well as the U visa category, where a victim of crime (including domestic violence) can be offered immigration relief.
When I started working at Catholic Charities in 2009 I received a call from an immigrant woman who was involved in domestic violence and her husband was threatening to have her deported. Within weeks, I came across another immigrant woman who divulged her visa had expired and upon interviewing her I learned of an incident where she had accompanied her US citizen spouse to an appointment with an immigration attorney and had the forms necessary for him to petition for her to attain legal permanent resident status prepared. But instead of having the attorney mail the completed application, her husband took it home saying he had changed his mind and was going to “report her to immigration.” The combination of coming across these two women so early on in my tenure at Catholic Charities was the catalyst for me to take the steps to implement a legal services program and to become a BIA accredited representative.
As an agency that assists battered immigrant women – regardless if they are here undocumented, are a conditional resident, or here on a visa – we are committed to ensuring our clients can take the control of their immigration status away from their abusive spouse’s hands. We can assist them with filing VAWA self-petitions or U nonimmigrant status applications (both provide a pathway to a legal immigration status), or prepare the petition needed for their conditional residency be changed to permanent residency without their abusive spouse’s signature by using the “extreme cruelty” waiver option.
A declaration or statement from the client that thoroughly addresses her abuse is the foundation of all of these petitions or applications. A VAWA self-petitioner or a U nonimmigrant applicant often wins or loses her case based on how effectively she can show in her own declaration whether or not she meets the eligibility requirements to receive the immigration benefit she is applying for. Because of my prior work in Miami, I am very familiar with the language and cultural barriers that often prevent immigrant women from disclosing their abuse. But once they are ready to get some assistance it is essential to capture their story (often letting it unfold over several appointments) and then helping them submit the strongest statement or declaration possible.
As someone who is going to file their case, it is extremely important to use interviewing techniques that will flesh out the intersection between culture and the different types of abuse. The power and control tactics used by batterers include physical violence, coercion, threats, intimidation, and isolation, destruction of important documents or possessions, and emotional, sexual or economic abuse. An abuser of immigrant woman also employs culture to enhance their control. During interviews, I have had clients describe how their husband prevented them from learning English or would force them to sign papers that were written in English they could not understand, how money they were saving to send to their families back home was stolen, how they were shamed in front of their family members or others from their community, or how their passports and birth certificates (as well as their children’s) were hidden or destroyed, or how the abuser was telling lies to their family or how they were made to say disrespectful things to them during telephone calls. The psychological abuse that seemed to be the most effective though was the threat of deportation. The fear of being physically separated from their children because they could be sent back home without them is often the most debilitating.
Since batterers can manipulate immigrant women into staying in abusive relationships if they think they will be deported and permanently separated from their children, it is important to educate them about their rights and the resources available in their community they can get to protect themselves. And once they are ready to take action on their situation, it is important for their new host community to have the appropriate resources it takes to help them leave an abusive home. Ithaca’s Advocacy Center works hard to make sure all women, including immigrant women, can seek safety, shelter and other types of support services if they are being abused. Local law enforcement are available to immigrant women and their children, and are there to ensure their safety. And as stated before, Catholic Charities is committed to ensuring battered immigrant women can get the legal services needed to take the control of their immigration status away from their abusive spouse’s hands.
With April 15 (aka Tax Day), quickly descending on us, I’d like to address the overlap that exists between immigration benefits and paying taxes. As a person who provides legal immigration services, I pretty much review personal income taxes of my clients on a daily basis since they accompany many of the applications I file with U.S. Citizenship & Immigration Services (USCIS). Most people think only the IRS cares about taxes, but when it comes to immigrants filing their taxes, USCIS can be equally interested.
First of all, I’d like to point out the importance for employed immigrants, regardless of immigration status, to file their taxes. Fortunately, many immigrants I assist have successfully filed their taxes in an accurate and timely fashion. However, there are others who have not filed taxes for various reasons and I have seen this have challenging consequences if they are applying for an immigration benefit. For example, I have clients whose citizenship applications were put on hold because they couldn’t affirmatively answer “NO” to the following question at their citizenship interview: “Since becoming a lawful permanent resident, have you ever failed to file a required Federal, State or local tax return?” They are then left scrambling to meet a deadline USCIS has imposed to prove they have filed taxes for the past 5 years or their citizenship application can be denied.
I have other immigrant clients whose petitions to bring family members to the U.S. have been delayed because they didn’t file taxes for the past 3 consecutive years but need to report on the required Affidavit of Support (AOS) their adjusted gross income as reported on the past 3 years of their filed income taxes. While this might seem like an innocuous example, it does lengthen the time it takes for an AOS to be filed and in turn extends the amount of time before a family can be reunified.
Once Comprehensive Immigration Reform (CIR) is passed and USCIS will have to either approve or deny applications from immigrants seeking a legal status this nexus might again come into play. Having an established tax history will most likely be a favorable factor USCIS considers when assessing the good moral character of someone who is applying for some type of legalization benefit. In fact, ONA Legal Counsel, Gary Liao, counsels immigrants who are waiting for CIR to pass to obtain an Individual Tax Identification Number (ITIN) and begin establishing a history of paying taxes sooner rather than later.
Since ISP has had first-hand experience with how critical it is for immigrants to file their taxes, we try to be proactive in educating our clients about its importance and refer clients to different tax preparers, programs, or services or when needed. For example, we refer clients to Alternatives Federal Credit Union’s (AFCU) Brian Zapf following their citizenship interviews if they need to prove they have filed taxes since he can assess whether they are even required to file taxes and if so, can actually prepare them. We also refer clients to the Community Tax Program Brian directs at AFCU since it is a great resource in Ithaca for those living in low income households to get free tax preparation. Anther resource we have identified locally is someone to help out with ITIN applications who charges reasonable rates. Since there is a tangible nexus between immigration benefits and filing taxes we are committed to making sure our clients know about this.