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Strategies for same-sex marriage green card cases

By Thomas M Lee

With the U.S. Supreme Court recently striking down key provisions of the Defense of Marriage Act and overturning California's Proposition 8 ban on gay marriages, countless numbers of same-sex couples have already gotten married and if not, are happily planning their future weddings. A significant number of those will likely want to file green card applications for their spouses who have immigration issues. This blog entry is meant to give such couples helpful tips and pointers for getting that green card. And, this article is written based on several assumptions, such as: (1) the spouse applying for the greencard ("beneficiary") is presently here in the U.S. after a lawful entry with inspection and is maintaining lawful nonimmigrant status; (2) the beneficiary entered the U.S. with inspection but fell out of status and is being sponsored by a U.S. citizen spouse; or (3) the beneficiary entered the U.S. with inspection but fell out of status, is being sponsored by a lawful permanent resident spouse (ie, greencard holder), AND is eligible for INA section 245(i) (see here for more info on 245(i)). However, if one of the assumptions don't fit your situation, don't lose hope because you may be eligible for a 601 waiver.

1) Understand the steps in getting the green card:

The first part of the entire greencard application process is the paperwork itself. All of the forms you need are available at the USCIS website at www.uscis.gov. After the required forms are completed, signed, and mailed to the correct USCIS lockbox with the correct filing fees and supporting documents, such as the copies of the beneficiary's passport, medical exam, passport photos, and marriage certificate as well as the petitioner's tax returns and evidence of U.S. citizenship or lawful permanent residence, the USCIS will send you receipt notices indicating the fees paid and an ASC biometrics appointment telling your beneficiary spouse where to appear to have their picture and fingerprints taken. There may be additional documents to submit, such as divorce and criminal records. Depending on where you live, you may receive an interview notice telling you where and when to appear for the interview within 5 or 6 months. Note that some jurisdictions are fast, while several take much longer than others.

Within about 90 days after the biometrics are taken, the beneficary will receive an Employment Authorization Document / Advance Parole card that can be used to obtain an SSN, Driver License, and opening a bank account. It can also be used to travel out of the U.S. for an emergency reason and to return to the U.S. without having abandoned the filed green card application. However, please NOTE that the 3/10 year bars will apply if the beneficiary was out of status for a certain amount of time at the time of departure. So, if you are not sure whether you can leave without triggering the bar, call or email me for a free consultation. Too lazy to call or email me? Then play it safe and stay put in the U.S. until the green card arrives in the mail.

While you are waiting for that interview notice, start preparing for it now.

2) Preparing for the green card interview:

The key to having a successful green card interview is to first understand its purpose. The interview is structured to detect fraud, and to determine whether you and your spouse have met your burden of proof in proving that the beneficiary is eligible for the requested benefit. My clients ask me all the time that isn't it enough to show our marriage certificate? Nope. As the U.S. Supreme Court confirmed in its cautious side step decision, anyone can get married so long as it is in the right State. Here, you must prove that you entered into the marriage for bona fide reasons, ie, love, and not just to get a green card, and that you two are living a shared life together.

Your burden of proof is even higher if the green card application is submitted within 2 years of the marriage because it will automatically have the fraud presumption. And, married couples who decide to wait two years after getting married to submit the application will still go through the same level of scruntiny at the interview because the USCIS officer may question why did you wait two years before applying? Was it to get around the fraud presumption?

So, the important thing to do now is to prepare the documents for the interview to show that you two are living a shared life together.

First, are both names on the apartment lease agreement? If not, get your landlord to add your spouse's name to the agreement. If you own your home, it would be a good idea to have both names on the title.

Second, a share life together means that you two have commingled your funds. Get together all of your joint bank account statements. However, a bank account statement that shows little to no activity with less than $100 in the account can be a red flag. Make sure that both of you are using the same account. And, issue each other credit cards from your respective charge cards. Other helpful documents are auto insurance documents showing that both of you are insured drivers in the same household, and health and life insurance documents as well. Bills in both names are also good. Basically, the more the better so that when the interviewing officer asks you to show documents that you two are living together, you can push forward a mountain pile of organized and individually filed and labelled documents.

Third, work on your photo album. Remember that when preparing the photo album, it should be a collection of photos documenting your happiness and precious moments together. Wedding and reception photos are a definite given. Photos taken at family parties or during the holidays are a must. And, photos taken during vacations are also good. What the USCIS officer does not want to see are graphic or explicit photos that would never be shown to your own parents. Keep it clean! Also, I don't like seeing meaningless photos that were obviously taken for the sake of taking a photo, such as a photo of your spouse sitting on the couch looking bored and drinking beer. If you have a funny photo, put it in the album! Breaking the ice with the interviewing officer by getting them to chuckle at a photo of your spouse making a fool of him/herself will definitely help.

And, take frequent trips down memory lane. Remind each other how you two met, where you went on your first date together, what do each of you like and hate eating, and so on. This way, if asked about these questions at the interview, whether separately or together, both of you will be on the same page.

3) DON'T change your attitude!

On the day of the interview, you should arrive at least 30 minutes in advance dressed in attire that shows you respect the interview process. The green card interview is an official government process, so dress the part. You don't need to wear business formal clothes like a suit. Business casual is best. And, be careful of what metal objects you wear to the interview because you will have to go through metal detectors in the lobby.

It is inevitable that you and your spouse will be nervous at the interview. It is natural and the officers are aware of that. However, do NOT change your attitude! This means that if you two are not naturally overly affectionate with one another in public, DON'T do it at the interview. Basically, be yourselves and be 100% honest! In fact, you are legally required to be 100% honest because both of you will be placed under oath at the start of the interview. So, if you are forgetful and can't remember your spouse's birthdate, just say so. If you are not sure how to answer the question, just tell the truth! The worst thing you can do at an interview is to guess an answer and look like a liar at the interview. It is far better to look like an honest moron than a lying genius.

Also, DO NOT interrupt the officer if he/she asks your spouse a question that they forgot the answer to. Ie, don't spit out unsolicited answers. This is a huge pet peeve to most officers. And, DO NOT talk to your spouse directly in front of the officer unless the officer says it's OK to do so, which is rarely the case. If your spouse needs an interpreter, bring one with you to the interview.

Further, remember that the more respect you show to the officer, the better you will get treated. Good eye contact is important as well as body language.

Finally, my most important advice is that you should bring a lawyer with you to the interview. Certainly, I'd like that lawyer to be me, but if not, bring an experienced immigration lawyer who will know when to speak up and demand that a supervising officer be present for the interview and who help keep the officer be mindful of their duties to adjudicate your case and to apply their discretion in a just and fair manner. The reality is that while your marriage is now legal in California, don't forget that over 50% of voters disapprove of it and supported Proposition 8. Accordingly, having a lawyer at your interview will help to remind the officer that personal prejudices have no role in the administraton of justice.

Please note that the information I am providing here in this entry, or in my website is NOT to be construed as legal advice nor is it meant to form an attorney-client relationship. For a free legal consultation by phone, please call or email me anytime.