LegalMatch: Immigration Law

San Francisco Joins Fight Against Trump's Attempt to Defund Sanctuary Cities

After repeated campaign claims that Obama’s executive order on immigration was an extreme overreach of executive power, it doesn’t come as a surprise Trump has issued an executive order of his own that runs contrary to what Obama was trying to accomplish.  In the wake of several questionable orders that have incited national outrage, San Francisco is fighting back and has filed a lawsuit against Trump in an attempt to block the order that would defund sanctuary cities.

What’s a Sanctuary City?

In a nutshell, a sanctuary city is a jurisdiction that limits local law enforcement cooperation with federal immigration agents.  These safe-haven cities don’t inquire into a person’s immigration status and do not use municipal funds or resources to enforce federal immigration requests. 

Although a sanctuary city cannot stop the federal government from enforcing immigration laws within their jurisdiction, federal officials often do rely on the cooperation from local authorities to enforce these laws.  For example, consider when an illegal immigrant gets arrested, is set to be released, and federal officials request local law enforcement to keep the illegal immigrant detained.  This requires cooperation and it’s something sanctuary cities could refuse to do.  In fact, case law suggests local compliance is entirely involuntary; the federal government cannot force local officials to enforce federal law. 

California, Vermont, Connecticut, and Rhode Island are the only states that have laws limiting local cooperation with federal authorities, but, according to the Immigrant Legal Resource Center, 39 cities, San Francisco being one of them, across the U.S. have policies enforcing limited cooperation.  Trumps executive order claims these sanctuary cities are violating federal law because they “shield aliens from removal from the United States”.  The order says state and local law enforcement agencies can perform the functions of an immigration officer and threatens,

“…jurisdictions that willfully refuse to comply…are not eligible to receive Federal grants…”.

Is the EO Valid?

The 10th Amendment, along with case law, tells us the federal government cannot force non-federal entities to do their dirty work.  Herein lies the major problem with Trump’s executive order because it’s asking, or otherwise coercing, states to do so.

Case law also tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies.  While the U.S. Constitution says the federal government can put conditions on the money they give out, case law tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies.  Conditions can be implemented, but they must meet certain requirements.

• The amount of funding to be taken away must be a “reasonable amount”.  Case law tells us that the federal government can take away a reasonable amount of funding, but not all funding.  For example, taking away 5% cut of federal funding has been found reasonable.

• The funding being threatened to be taken away must be relevant to the condition the government is trying to enforce.  If Trump wants to enforce federal immigration policy, the funding he wants to take away must be limited to enforcing that same policy.  Who would be responsible for enforcing immigration policy?  Local law enforcement officials.  Taking away law enforcement funding would be appropriate, however, taking away all funding from a city would not.  Trump’s executive order states sanctuary cities are “not eligible for federal funding, except as deemed necessary for law enforcement purposes…”  This suggests he would take away all funding except for law enforcement, which is contrary to the rule.
  
  
• Referenced. Federal funding requires legislation, which means funding doesn’t just appear out of thin air; it’s granted through legislation.  If the government wants to put a condition on how and when federal funding is given out, the condition must be specifically referenced in the legislation.  Trump would have to get Congress to pass new legislation.  Considering the GOP holds the majority of Congress, this seems feasible, but the conditions still need to be relevant.   
  
  
• Coerciveness. The threat to take away funding cannot be coercive—simple as that.  The Supreme Court has already ruled once before that taking away all of a state’s federal Medicaid money is coercive, so it seems to reason that the same principles would apply in San Francisco’s lawsuit. 

Supreme Court Nominee Could Change the Game

As you can see, Trump’s executive order has quite a few constitutional hurdles to jump before it can be held valid.  Case law suggests the order as written could prove unconstitutional, but we can assume Trump chose his Supreme Court nominee carefully in the sense that he hopes his nominee will further his own political agenda.  If Neil Gorsuch is confirmed as a Supreme Court Justice, there’s a legitimate fear looming that his vote could sway the bench in Trump’s direction.  

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Should Residency Requirements for Citizenship Be Based On the Sex of the Parent?

Should U.S.- citizen fathers be treated the same as U.S.- citizen mothers? Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to unmarried parents—a father who was a U.S. citizen and a mother who was not. Although Morales-Santana became a permanent resident of the U.S. in 1975, the issue of citizenship came up when the federal government initiated deportation proceedings against him. 

Asserting he was in fact a U.S. citizen, the government denied Morales-Santana citizenship status on the grounds that his father didn’t meet residency requirements to transfer citizenship. Morales-Santana argued the relevant law was a violation on equal protection grounds and the Supreme Court decided to take this issue head on when they heard oral arguments in early November.

Under the law at the time of his birth, Morales-Santana could only be considered a U.S. citizen if his father had lived in the U.S. for at least 10 years before Morales-Santana’s birth, with at least 5 of those years being after turning 14. Morales-Santana’s father couldn’t meet those requirements because he moved to the Dominican Republic just 20 days shy of meeting that 5-year prong of the law.  Had Morales-Santana’s mother been a U.S. citizen at the time of his birth, he would have automatically been a U.S. citizen despite being born outside the U.S. 

Sound like a double standard? We know the 5^th Amendment affords equal protection from the federal government and the U.S. Court of Appeals for the 2^nd Circuit sided with Morales-Santana and ruled the laws governing citizenship for the children of unmarried parents violated the U.S-citizen father’s constitutional right to be treated the same as a U.S.-citizen mother.

Equal Protection under the 5^th Amendment

The legal requirements can get pretty complex because the specifics of certain immigration laws have changed quite often throughout the years, but Morales-Santana had 2 ways of gaining citizenship (other than naturalization):

• Children born outside the U.S. of parents, one of whom is an alien, and the other a U.S. citizen who, prior to the birth of the child, was physically present in the U.S. for periods totaling not less than 10 years, at least 5 of which were attained after the age of 14, can be citizens so long as the paternity of such child is established and legitimized before the child reaches age 21.
• Children born outside of the U.S. and outside of wedlock, acquire the nationality of the mother, if the mother is a U.S. citizen at the time of birth and has lived in the U.S. for a period of one continuous year (at any time in her life) before the child’s birth.

As you can see, residency requirements are quite different, making it harder for children of U.S.-citizen fathers than children of U.S.-citizen mothers. Morales-Santana couldn’t gain citizenship under the portion of the law that transfers citizenship from a U.S.-citizen mother since his mother wasn’t a citizen and, although Morales-Santana’s father was in fact a U.S. citizen, he didn’t meet the residency requirements of the law.

Despite the fact that Morales-Santana’s father was only 20 days away from meeting the residency requirements, why in the world should a U.S.-citizen father have to meet longer residency requirements than a U.S.-citizen mother?

Federal Government Disagrees

U.S. Attorney General Loretta Lynch argues there’s no equal protection violation because the law is based on the citizenship of the parents rather than the gender. When a child is born to parents of two nationalities, there will inevitably be competing interests. The rationale is that the U.S.-citizen parent needs to have the 10-year residency requirement in order to build a stronger physical connection to the U.S. since the alien parent would introduce a competing national influence.

The remaining section that transfers citizenship to a child born out of wedlock from a U.S.-citizen mother, the government argues, isn’t based on gender either, but rather solely on the legal relationship that an unmarried birth mother has to her child. A father must establish paternity before any legal relationship can exist.  I can see how this would be a valid basis for crafting the law in this manner.  Nevertheless, the application of the law (whether it was inadvertent is to be determined) does make it harder for U.S.-citizen fathers to transfer citizenship to their children born out of the country. 

Even if the intention behind the gender-specific language was based on the fact that unwed mothers have more legal rights to the child than the father, once paternity is established this argument is moot and, at that point, why would the father still have to establish longer residency requirements?

SCOTUS Previously Deadlocked

This isn’t the first time the high court has been faced with this issue. In 2010, the Supreme Court agreed to hear a case on the same issue, but the court deadlocked 4-4, leaving the lower-court decision intact. Although Justice Elena Kagan will participate in the case (she recused herself from the 2010 case), the court is still down a Justice and could potentially end up in another deadlock.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

How Trump Plans to Change Immigration Policy

Since the onset of Donald Trump’s campaign, we’ve been hearing about his plan to build a wall and about his strict stance on immigration issues. Up to this point, we haven’t heard many details regarding these new policies he plans to implement, but we finally got a glimpse in his recent speech out of Phoenix. Although he promises to “Make America Great Again,” can he really follow through with his plans for immigration policies?

Build a Wall

This has been Trump’s priority from the get go. The wall will be built with above-and below-ground sensors, towers, aerial surveillance, and enough manpower to guard the wall, locate tunnels, and keep out cartels. The most interesting part of his plan—to have Mexico pay for 100% of the wall.  Not exactly sure how he plans to make this happen.

In fact, after Trump’s speech, Mexican President Enrique Peña Nieto adamantly insisted that Mexico would not pay for the wall and Mexico’s foreign Minister says this point is nonnegotiable. Although Trump denies ever speaking with him about payment of the wall, Peña Nieto maintains he made this point clear to Trump during their recent meeting.

End Catch-And-Release

Trump plans to detain illegal immigrants until they can be physically deported back to the country they came from, rather than release them just across the border, but he can’t entirely keep this promise either, as many countries refuse to take back their own citizens. Not only that, but this could result in lengthy and unnecessary detaining periods which presents civil rights issues.

Zero Tolerance for Criminals

The day he takes office, Trump plans to remove the 2 million criminal aliens from the country. Other than issue detainers for illegal immigrants immediately upon arrest and triple the number of deportation officers within the department of Immigration and Customs Enforcement, Trump didn’t give much other detail. He did, however, state he plans to pass what he calls “Kate’s Law,” which would mandate minimum sentences for criminal aliens convicted of illegal re-entry.

Hiring 5,000 more Border Patrol agents is also on the list, but there was no mention of the costs associated with hiring this nearly 25% increase.

Block Funding for Sanctuary Cities

Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars. Withholding federal money for compliance with federal policies isn’t a new concept, as it’s regularly done today so this one could fly.  

Cancel Unconstitutional Executive Orders and Enforce All Immigration Laws

In 2012, President Obama granted temporary reprieve from deportation to migrant children. Trump, along with many others, believe these actions were unconstitutional. In 2014, Obama tried to expand this program; Texas and 25 other states challenged the constitutionality of his action. A federal judge stayed the President’s executive order and it remains that way ever since the Supreme Court deadlocked in a 4-4 decision.

Presidents get their powers to issue executive orders only when authority is taken from the constitution, current legislation, or from Congress delegating such power. The law mandates illegal aliens be removed and, according to the federal Judge’s opinion, there isn’t a law in effect that gave the administration the power to issue this order.  Supporters say Congress delegated the power to deal with immigration issues but, with an equally divided court, the Supreme Court effectively refused to answer the question. 

Regardless, Trump would have the authority to revoke Obama’s executive order.  

Only Issue Visas from Countries with Adequate Screening

Trump initially called for banning Muslims from entering the country and later switched to banning Syrian refugees. Now, his stance appears to have softened by claiming only individuals placed through “extreme vetting” will be allowed in, but this could just be a way to mask the discriminatory motives behind his initial harsh stance. 

Trump also stated he would create a list of countries from which immigration will be suspended, where he plans to build safe zones in order for refugees to stay in their home region. Once again, he promises others will foot the bill— “we’ll get the money from the gulf states.”

Ensure Countries Take Their Deported People Back

There are several countries that are uncooperative and refuse to take back their citizens. However, the Supreme Court has ruled we cannot permanently detain these illegal aliens indefinitely, so any illegal criminals must be released after their sentence has been served. 

Trump did not offer a solution on how he plans to force other countries to take back their citizens.    

Cut Off Benefits and Reform Legislation to Benefit American Workers

Trump plans to ensure E-verify, an online system employers can use to check whether applicants are authorized to work in the U.S., is fully utilized. Additionally, no government benefits for illegal immigrants will be issued.  

Biometric Entry-Exist Visa Tracking System

This one is actually already law, but it’s never been implemented or used. Trump wants to begin this process in order to track expired visas. This would require building infrastructures at points of entry and exit, new personnel, and a whole slew of other hurdles, which is why it’s never been implemented. 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Man Arrested for Adult Adoption Scheme to Defraud Undocumented Immigrants

Adoption is a popular way to expand a family, but did you know that adults can also be adopted? Adult adoption is the legal process of adopting a person who is over the age of 18 years old and results in the legal parent-child relationship. In the United States, the most common reason to adopt an adult is for inheritance purposes. It is easier to leave property or other financial assets to someone who is legally related to you as opposed to someone who is not.

But one con man used the adult adoption process to defraud unsuspecting immigrants. Sixty-three year old Helaman Hansen from Elk Grove, California was arrested and indicted earlier this year for conspiracy to commit mail and wire fraud, 11 counts of mail fraud, and one count of wire fraud for operating a fraudulent adult-adoption program targeting undocumented aliens. Undocumented immigrants are foreign-born people who don’t have a legal right to be or remain in the United States.

Between October 2012 and January 2016, Hansen and his co-conspirators sold immigrants what he called a “Migration Program.” The program promised immigrants the opportunity to achieve U.S. citizenship by being legally adopted by a U.S. citizen. They got approximately 500 victims to pay more than $500,000 to join the program, and none of his victims obtained U.S. citizenship. If convicted, Hansen faces a maximum penalty of 20 years in prison and a $250,000 fine.

How Do Adult Adoptions Work?

First, it is important to note that most states allow adult adoptions, although some have limitations or simply do not permit such adoptions. For example, Alabama only allows adults over the age of 18 to be adopted if they are permanently disabled or mentally retarded. In Arizona, you have to be under the age of 21 to be adopted. Michigan and Nebraska don’t allow adult adoptions.

Each state has its own legal process for adopting an adult, but generally, adoption is the same legal process whether the individual is a child or an adult. The court in the state of adoption will issue a new birth certificate for the adopted person. At the same time, any existing legal relationship the adopted individual has with biological or custodial parents is severed. The adopted adult has the option of changing his or her last name and the adoption records are typically sealed.

How Does One Immigrate to the U.S.?

It’s not easy to immigrate to the United States. However, there easier ways of legally immigrating to the United States: 

One can immigrate to the U.S. and secure a job in the country in order to obtain a green card. This option is typically utilized by skilled professionals. Second, "green card marriages” allow couples to get married so the non-citizen spouse can obtain a green card. The green card lottery is the third most common way to immigrate. With the lottery, a person can get an immigrant visa to come to the U.S.

One can also immigrate to the U.S. through family based immigration, if:

• You are a U.S. citizen’s spouse, parent, or child;
• You are a U.S. citizen’s unmarried child above the age of 21, married child or a sibling; or
• You are the spouse or minor child of a Green Card holder.

Why Can’t an Undocumented Immigrant Obtain U.S. Citizenship?

The law is cut and dry on the requirements for immigration. Under the law, an adoption must be finalized before the child turns 16 years old. Further, in order to adopt an undocumented immigrant, the child would have had to have lived with you in your legal custody for two years before filing the visa petition.

Based on what we know about the Hansen case, Hansen promised undocumented immigrants the ability to become U.S. citizens. His victims were too old and did not live in the custody of the adoptive parents for two years before filing the visa petition. Hansen also had no intention of making good on his promise to help his victims attain U.S. citizenship.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

New York to Allow Young Illegal Immigrants an Opportunity Out of Immigration Limbo

In the United States, around 1.4% of students in kindergarten to high school are considered undocumented. Often, the children come to the U.S. when they were young and their parents were undocumented. At the moment, 1.4% means around 1 million children are in the U.S. illegally. Many of these individuals were raised in the United States, speak English, and are trying to become productive members of society.

But due to their immigration status, the 1 million children will not be able to find legal employment and may face detention or deportation.

In New York State though, the State Education Department voted to allow qualifying individuals to receive certifications and licenses for professions in education despite unauthorized immigrant status. This is a great step forward to helping the young and growing population, but it brings a lot of unresolved issues into the light.

What is the situation that undocumented immigrants face? Who benefits from the State Education Department’s decision? Why is this so important in the first place?

When There is No Place To Call “Home”

Under the current immigration law, there are 4.4 million undocumented immigrants. These young individuals who grew up and lived in the United States, unfamiliar with their country of origin, may be forced to return to a country they know nothing about.

These young individuals were brought to the U.S. when they were children. They did not have a choice whether to come to the U.S. or stay in their family’s home country. Now, they live in a country that wishes to deport them to a country that they never considered to be their home.

Along with isolation and fear of deportation, they do not have a right to work and cannot receive welfare or food stamps. The decision from the State Education Department can be a real step forward to help them gain valid employment and become U.S. citizens.

But the Number of People that Benefit From the Decision is Limited

To benefit from the State Education Department’s new policy, all applicants need to qualify under the Deferred Action for Childhood Arrival (“DACA”). Individuals need to apply for DACA and must fulfill the following requirements:

• come to the United States before their 16th birthday
• be under the age of 31 with no valid immigration status on June 15, 2012
• lived continuously in the United States between Jun 15, 2007 to present time
• currently enrolled in school, graduated from high school, obtained GED, or were honorably discharged from the military
• no felony or significant convictions, or three or more misdemeanor convictions, and poses no threat to national security or public safety.

Due to the nature of illegal immigration, it is not clear how many people fall under this category. But, as of 2012, the U.S. government estimates that there are 11.4 million illegal immigrants in the nation. Of the 11.4 million illegal immigrants, only 1 million of them are children and even then, not all will be able to apply for DACA.

A Limited Number Will Benefit from the New Policy, So Why is this So Important?

Right now, immigrants in the U.S. face many struggles to join and integrate into society. But it is far more difficult for illegal immigrants who fear detention or deportation at any moment. They face the options of deportation or accepting a job that may pay less than minimum wage.

As the number of illegal immigrants raised in the United States grows, Development, Relief, and Education for Alien Minorities Act (“DREAM Act”) have been enacted throughout various states. But even then, Acts like the one in California only offer illegal immigrant students a chance to apply for financial aid. It does not give them a path to apply for citizenship.

The reality is that there is no clear, guaranteed way for illegal immigrants to gain citizenship. They may marry a U.S. citizen, they may be sponsored by their employer, or they may apply for asylum/refugee status. In each case, the government will track and regulate those paths to citizenship. It may put relatives that cannot pursue those paths in danger of detention or deportation.

In 2015 alone, 96,519 individuals with no criminal ties were deported. The number may seem high, but in fact 2015 was the lowest year of deportations since 2008. Families were separated, with many U.S. born children forced to follow or say good-bye to their parents and older siblings. The State Education Department’s decision to allow qualified individuals to apply for professional license and certification gives young immigrants a chance to find legal employment. It will give these individuals a chance to become citizens of our nation and forge a path for those that will follow.

Authored by Janice Lim, LegalMatch Legal Writer

The Automatic Citizenship Debate

Last year, a Taiwanese woman in labor may have forced a plane to divert to Alaska in an attempt to give her baby American citizenship. It worked, but she was sent back to Taiwan without her American baby.

While she could face a hefty bill for forcing the plane to land, there’s a larger legal issue. According to Alaska state officials, the baby is eligible for U.S. citizenship. Any baby born in flight has the right to be an American citizen if that is where the baby first arrives—even if born in international air space.

Automatic Citizenship vs. Automatic Birthright Citizenship

Children born to two U.S. citizens are automatically citizens. This is different from receiving automatic birthright citizenship, which comes if only one parent is a U.S. citizen. If only one parent is a U.S. citizen at the time of a baby’s birth, the parent must have lived in the country for at least five years after reaching 14 years old for the baby to qualify for automatic birthright citizenship.

Even if one parent is a U.S. citizen, there’s no conditions on the child keeping citizenship. The only glitch is regarding illegitimate children. Typically, automatic citizenship applies—with no conditions—but the U.S.-born father must acknowledge paternity before the child’s 18^th birthday. The acknowledgment must be in writing or by court order. In addition, the father must financially support the child until his or her eighteenth birthday.

A baby eligible for automatic birthright citizenship is one who either has one or both parents without U.S. citizenship status. According to the Pew Research Center, at least 4.5 million children live in this country who have at least one parent not authorized to live here. Approximately 4 million illegal immigrants live in the country with their U.S.-born children.

The debate on whether to get rid of the automatic birthright citizenship has raged on for years. Opponents of this type of citizenship claim parents who aren’t allowed in the U.S. shouldn’t be rewarded. Some proponents argue it’s not the parents or the children that is the problem.

Pros of Citizenship by Being Born in the U.S.

1. Birthright Citizenship Doesn’t Guarantee Parents’ U.S. Citizenship

My colleague Jay Rivera wrote in his blog that “anchor babies” don’t give their parents automatic U.S. citizenship. Indeed, having a baby who has automatic birthright citizenship won’t stop a parent or parents from being deported. Yes, once 21 years old, the child can decide to petition for the parents to become citizens. However, the child has to meet income requirements and the parent or parents must meet eligibility requirements. If they were here illegally and left, they probably face a 10-year reentry ban.

2. The 14^th Amendment Supports Automatic Birthright Citizenship

Many other countries based their citizenship on bloodlines, or in Latin: “jus sanguinis.” In contrast, the U.S. has long been a nation of immigrants. This is reflected in the 14^th Amendment, which grants anyone born on American soil—or airspace—citizenship.

3. Stopping Birthright Citizenship Won’t Solve the Immigration Problem

The U.S. definitely has an immigration problem. According to the U.S. Department of Homeland Security, or DHS, 11.4 million illegal immigrants reside in the country. However, changing automatic birthright citizenship ignores the fact that most people living here illegally arrived after they were adults.

Cons of Citizenship by Being Born in the U.S.

1. Maternity Tourism

For decades, temporary foreign workers, foreign students, international travelers and permanent visa residents and those who’ve entered the U.S. illegally have used birthright citizenship to their advantage. One prime example is the Taiwanese woman who wanted to give birth in America and diverted the plane just to do so. The problem is, temporary foreign workers and foreign students are here to either work or go to school. They are here to travel. They shouldn’t be able to use the system to remain in the United States longer or give their children something that isn’t rightfully theirs to give: American citizenship.

2. Automatic Birthright Citizenship Should Be Eliminated

Automatic birthright citizenship is an antiquated practice. Many countries have already eliminated this practice. America should do so too. No matter how bad the term “anchor babies” may sound, that is what happens. The baby eventually will anchor some relative to America. The child will grow up and may decide to bring the former temporary foreign worker or foreign student back to the U.S. Maybe she will decide to bring a grandparents or siblings to the country. The point is that the baby who receives automatic birthright citizenship is a possible pipeline to American citizenship for others.

3. Automatic Birthright Citizenship Hurts The Immigration Process

The process of giving U.S. citizenships to babies just because they were born on U.S. soil hurts the immigration process. About 779,929 people became naturalized U.S. citizens in 2013. They earned their American citizenship. They worked hard and played by the rules. Granting citizenship to babies just because they were here is a great incentive for more illegal immigration, not less.

4. The 14^th Amendment Isn’t Connected to Automatic Birthright Citizenship

Many proponents of automatic birthright citizenship point to the 14^th Amendment as the reasons not to get rid of the “right.” Well, they’re wrong. The language of the Amendment has two criteria. The first is one must be born in the United States. The second is the person must be to the jurisdiction of thereof. Both requirements can’t be met by just being born in the country.

To be “subject to the jurisdiction thereof” refers to a citizen not owing an allegiance to any other foreign country. It was designed to ensure people granted U.S. citizenship were loyal to the country and jurisdiction there resided.

In fact, according to U.S. Senator Jacob Howard, the 14^th Amendment specifically excluded people born in the country who are foreigners, ambassadors’ families, foreign ministers accredited to the U.S, and Native Americans born within the U.S. and whose tribes retain relations with the federal government.

Should America Continue Automatic Birthright Citizenship?

No. It’s doesn’t make sense to continue automatic birthright citizenship. This system rewards those on maternity tourism who want U.S. citizenship, but not willing to work for it. Besides, American citizenship is too precious just to give away to anyone. Stop the practice now.

Children born in the U.S. because of their parents’ choices should be eligible for U.S. citizenship at the age of 21. Ultimately, it should be their choice if they want to become a U.S. citizen or remain a citizen of their parents’ country.

Authored by Taelonnda Sewell, LegalMatch Legal Writer

The Basics of Hiring an Immigration Lawyer

Immigration Law Basics

Preparing for an Immigration Marriage Interview

When a non-citizen gains U.S. citizenship by marrying a U.S. citizen, it’s referred to as an immigration marriage. Most non-citizens enter the country via a fiancé visa. The U.S. has strict laws governing immigration marriages to reduce immigration marriage fraud. Immigration marriage fraud refers to entering into a fraudulent, or fake, marriage with the intent to deceive the immigration authorities. 

To determine whether the couple married for love or citizenship, the married couple must take part in a marriage interview. A marriage interview, also called the green card interview, tests the legitimacy of the marriage and provides the non-citizen with permanent residency status. 

The marriage interview involves an immigration officer asking both spouses questions. Another immigration officer observes the couple as the answer questions. The second officer is trained to detect fake marriages. If the immigration officer believes there is any deception, the couple receives a second interview. The second interview is tougher.

Review Ahead of Time

Prior to the interview, its vital the spouses look over paperwork submitted to the United States Citizenship and Immigration Services (USCIS). The immigration officer conducting the interview will look at the documents to determine if the spouses are lying.

Spend Time Discussing Circumstances and Facts Surrounding the Relationship

The USCIS wants to know things like:

• How the spouses met
• How the relationship developed
• How the spouses visited or corresponded
• When the spouses corresponded or visited each other
• Why the couple decided to get married
• Details about the wedding, if married
• Details about the couple’s future plains, if still engaged

A couple’s answers shouldn’t sound rehearsed. There shouldn’t be too much disagreement either. Couples are known to disagree about who attended the wedding or birthday gifts, but this can also look bad. When couples don’t have the correct answers, it can make the immigration official suspicious.

Always answer questions honestly and to the point. For example, if the immigration officer asks the number of child, then give the exact number. Don’t go into detail about their names or birth order. If the immigration officer wants to know that information, he’ll ask.

Dress in Appropriate Attire

Immigration officials are looking for any sign the couple has a sham marriage. The couple’s attire should be:

• Neat
• Conservative
• Professional

Don’t wear T-shirts or jewelry with symbols and slogans that make immigration officials wonder about morals or lifestyle.

Preparing for the Stokes Interview

When a couple doesn’t convince immigration officials their marriage is real at the first green card interview, the couple will be called to attend a second interview. The second interview, called the Stokes interview, is sometimes referred to as the fraud interview. Prior to conducting the second interview, the immigration officer may inform the couple why the first interview didn’t go well. The couple will be interviewed separately.

The immigration officer will ask very invasive, personal questions. The interview is recorded. The statements in the first and second interviews will be compared. The goal is to look for any discrepancies. The Stokes interview takes several hours to complete. Once each spouse is asked questions separately, they complete another interview together.

Preparing for the Stokes interview requires bring all original documents, such as marriage certificates and joint bills. It’s better to organize them and make copies.

Consulting an Attorney

It’s always best to prepare for a marriage interview by consulting an immigration attorney. An attorney will review documents and conduct mock interviews. The purpose of conducting mock interviews is to familiarize the couple with the entire interview process.  

Authored by Taelonnda Sewell, LegalMatch Legal Writer

Who Is an Ilegal Immigrant?

In 2014, there were approximately 11.3 million people in the U.S. who didn’t have the legal right to live in the country. According to the Pew Research Center, the 11.3 million people make up 5.1 percent of the U.S. labor force. Should these people be called illegal immigrants, undocumented immigrants or something else? It really depends on the individual’s circumstances.  

An illegal immigrant refers to a person who has violated some immigration policy or law enforced by the U.S. A person who enters into the country illegally has committed a crime. Thus, the term illegal immigrant does apply. The question is not whether the person is human, as many immigration advocates want to focus on, but if a crime was committed. A person commits a criminal act under U.S. immigration laws if she:

• Enters the country without a visa or valid immigration documents
• Enters or attempt to enter the country at any time or place other than the areas designated by U.S. immigration
• Enters or attempts to enter the country by concealing, misrepresenting, or falsifying a material fact
• Re-enters the country after being deported and without valid visa or immigration documents
• Gain entry into the country using fraudulent or fake documents
• Impersonates a U.S. citizen
• Intentionally commits fraud on an immigration application
• Marries a U.S. citizen in a sham marriage for permanent resident status                                                                                                          

This crime is punishable by six months of incarceration and a fine of $250. This punishment for each illegal entry a person attempts or succeeds in committing. Like other crimes in the United States, the federal government has the burden of proving its case beyond a reasonable doubt. In immigration, that means the government has to prove beyond a reasonable doubt that the immigrant did enter or attempt to enter the country illegally.

What about Undocumented Immigrants?

What about those who arrived in the U.S. legally, but remained in the country without a green card? If the non-citizens were here legally, but overstayed their welcome, they are considered undocumented immigrants. An undocumented immigrant is an individual who entered the country legally, but fails to leave before his visa expires. This was the case for many of the 9/11 hijackers who overstayed their student visas.

Is overstaying a visa a crime? No.

To remain in the country without legal authorized immigration status is a violation of immigration laws. A violation is punishable by civil penalties, not criminal ones. However, civil penalties for undocumented immigration include deportation. Although undocumented immigrants do not have to pay fines or serve jail time, illegal immigrants and undocumented immigrants can both be deported from the United States.  

Authored by Taelonnda Sewell, LegalMatch Legal Writer

Marrying an Immigrant

What Is a Fiancé Visa?

For U.S. residents or lawful permanent residents who wish to marry a non-citizen immigrant, a fiancé visa allows their partner to travel to the U.S. for the purposes of marrying the citizen. The fiancé visa allows the alien to enter the U.S. and marry their citizen partner within 90 days. Once the marriage is completed, they will typically be granted conditional residency for a period of two years. After two years, the immigrant may apply for an adjustment of status, in which they can be granted lawful permanent residence.

Alternatively, a person can also petition a non-citizen that they are already married to. They can do so using a Spouse Visa application. This requires much documentation of the couple’s marriage and may have a different time frame than a fiancé visa.

 What Is Needed to Obtain a Fiancé Visa?

In order to obtain a fiancé visa, the U.S. citizen must obtain and file a form I-129 Fiancé Petition. This establishes their relationship with the person travelling to the U.S. for marriage purposes. In addition, the immigrant applicant must supply all standard immigration documents, such as a valid ID, passport, medical records/bank records, and other documents. They must also have a clean criminal record, and should be able to support themselves while living in the United States.

In addition, the couple will usually have to supply evidence that they are truly engaged and are not seeking to evade immigration laws or requirements. For instance, they may need to provide phone transcripts, photographs, e-mails, and other documents that show how the couple has been interacting together. They may be subject to an interview by immigration authorities once the immigrant has travelled to the U.S.

What Is Immigration Marriage Fraud?

Immigration marriage fraud is when a non-citizen foreign alien tries to get married to a U.S. citizen for the sole purpose of obtaining citizenship or lawful permanent residence. Such marriages are prohibited under U.S. immigration laws. Violations of such laws may be met with severe penalties, such as removal/deportation from the U.S., and a ban on re-entry in some cases.

In addition, the U.S. citizen spouse may also face legal consequences if they knowingly enter into a fraudulent immigration marriage arrangement. Even third parties can be implicated in such crimes if they help to facilitate a fake marriage.

As mentioned, immigration authorities take many steps to discover and prevent the occurrence of fraudulent marriages. Thus, if you are planning on marrying an immigrant, it’s important that you follow all of the immigration steps and requirements very carefully. If you’re unsure of any documents or issues, it may be helpful to enlist the services of an immigration attorney.

Do I Need a Lawyer for Assistance with Immigration and Marriage Issues?

Some people may have many questions and inquiries when seeking to marry an immigrant. You may need to hire an immigration lawyer in your area if you need guidance or advice when filing specific types of visas. Your attorney can inform you of all the steps that you need to handle in order to proceed. Also, if you come across any additional legal issues or disputes, your attorney can help represent you during court appearances or appearances before an immigration board.