This issue is geared toward the general practitioner, who handles family law matters. As you see through these excellent articles, attorneys practicing family law can run into immigration issues. I want to thank this issue's authors: Allison Wannamaker, Dawn Garcia and Terry Olsen. If you have an article, an idea for an article, a suggestion, or even a constructive criticism, please e-mail me at bbuchanan@kingballow.com or call me (615-726-5484).

                                                Bruce Buchanan

By Allison Wannamaker^•

     I often talk to people who believe marrying a citizen automatically solves a non-citizen's immigration problems. Others are surprised that having an American-born child does not save a non-citizen from deportation. Immigration lawyers learn through experience the U.S. immigration system is complicated, even for individuals who wish to join a spouse, parent, or other close family member in the United States.

     In the September 2009 TBA Immigration Law Section newsletter, Elaine Witty explained: “Immigrant visas are issued to foreign nationals who intend to immigrate to the U.S. permanently. Immigrating to the U.S. can be achieved through… family-based sponsorship.”
 

How does family-based sponsorship work?

      Sponsorship by a close citizen or permanent resident relative is one way to get permission to enter the United States permanently. According to the ABA, about 70% of all immigrants admitted each year are sponsored by a relative.^♦ However, not every relative can be sponsored: only immediate relatives (parents, spouses, and unmarried minor children), siblings of citizens, and adult children. The sponsor must prove a genuine family relationship, and demonstrate the foreign relative will have sufficient economic support. In addition, numerical limits on the number of visas granted each year have resulted in lengthy waiting periods or “backlogs” for non-immediate family members. Previous immigration violations, criminal history, alcohol or drug abuse, certain health conditions, and other negative factors might still make the family member inadmissible.

     In most cases filed since 2001, even spouses and other close relatives of a citizen or permanent resident cannot become permanent residents from inside the U.S. if they entered the United States illegally. The foreign relative must apply at a U.S. consulate overseas. If the relative was unlawfully present in the U.S. for six months or more, she must convince an officer at the consulate that her American spouse or parent will suffer “extreme and unusual hardship” if she is not allowed to return as a permanent resident.

     Consular processing, in this situation, is difficult and risky. Note that hardship to the alien, or even to the alien’s American children, does not count: the consulate may only consider hardship to a citizen or permanent resident spouse or parent. Further, the hardship test is case-specific, not uniformly applied from consulate to consulate, and not subject to review. If successful, the foreign relative has still spent months outside the U.S. waiting for interview(s), undergoing medical exams, and depriving family members in the U.S. of the relative's income or care. In many cases, the foreign-born relative is unsuccessful, and remains stuck outside the U.S.

     Because of arbitrary caps on the number of family visas available each year, it can take several years for an otherwise qualified family member to actually obtain a visa and become a permanent resident. Families may be separated for years, even decades, while waiting for green cards to become available and be processed. The length of the wait depends upon the type of relationship and the relative's country of origin. Even spouses of permanent residents must wait seven to 10 years to come to the U.S. legally, while most others, including adult sons and daughters of U.S. citizens, are forced to wait between four and 22 years.^♦♦ Only “immediate relatives” (spouses, unmarried minor children, and parents of adult U.S. citizens) are exempt from these waiting lists.
 

An example of the application process: sponsoring a foreign-born spouse

     Many family-based immigrants are the spouses of citizens and permanent residents. Aside from establishing the marriage is legally valid, the spouses must show they did not marry in order to evade U.S. immigration law. USCIS makes a case-by-case determination, but considers such factors as how long the couple knew each other before marrying; age, cultural, language, or religious differences; how well the spouses know each other’s friends and family; and whether the spouses have combined their households and finances. Supporting evidence might include joint banking and financial accounts; joint property ownership/lease; mail, household purchases, and other evidence of cohabitation; birth certificates of children born to the marriage; and affidavits from friends and family who know the couple. If the foreign spouse was already in removal proceedings before the wedding, the spouse faces a heightened evidentiary standard and presumption against approval unless the foreign spouse has resided outside the U.S. for two years.

Conclusion

     For many decades, U.S. immigration law has sought to unify Americans with foreign-born members of their immediate family. Families face many hurdles under the modern immigration system, but family-based immigration is still the most common way to become a permanent resident of the U.S. Since immigration law is a highly specialized area which changes frequently, general practitioners should consider referring these issues to an attorney who regularly practices immigration law, such as a member of the TBA Immigration Section.

^•Allison Wannamaker is an associate at Thomason, Hendrix, Harvey, Johnson & Mitchell, PLLC in Memphis, Tennessee. Her practice areas include immigration and civil litigation. She may be reached by e-mail at wannamakera@thomasonlaw.com

^♦American Bar Association (ABA) Commission on Immigration, “Immigrants,” available online at

http://new.abanet.org/Immigration/Pages/Immigrants.aspx

(visited January 10, 2010).

^♦♦American Immigration Lawyers Association (AILA), “Talking Points: Relief for the Families of U.S. Citizens and Lawful Residents,” available online at http://aila.org/content/default.aspx?docid=28761 (posted Apr. 30, 2009).

By: Dawn A. Garcia^•

      It looks like a straightforward case: a potential client in a miserable marriage comes to your office and recites his tale of woe. He hires you to handle his divorce. You collect your retainer, file the divorce complaint, and wait for the inevitable fireworks that come with property division and visitation scheduling. You then discover your client only recently became a lawful permanent resident (LPR), and a conditional permanent resident (CPR) at that. What, if anything, does this mean for his divorce? Should he be concerned about immigration consequences? And what are a LPR and a CPR?

     Immigration law has two certainties: 1) it is complex and even the simplest question can have a complicated answer; and 2) it is full of immigration-specific legalese and abbreviations. This article offers a basic overview of immigration law and provides an introduction to some problems which might arise in a family-law practice.

     A “LPR” is an alien lawfully admitted to the United States as a permanent resident. Permanent, however, is sometimes a misnomer. The permanent resident admitted based on marriage to a U.S. Citizen, or LPR, acquires conditional status if the marriage is less than two years old when he or she is admitted. This is aimed at discouraging marriage fraud or “marrying for a green card.” It is fairly simple to verify this if you have a copy of the client’s “green card,” which is also known as the Permanent Resident card. The “green card” will show the date of admission and period of validity. If the card is valid for two years (instead of 10 years or no expiration), further inquiry is required to determine what conditions are present before a complaint for divorce or legal separation is filed.

     For a conditional LPR status based on marriage, the condition is a continuing, bona fide marriage. Within the 90 days prior to expiration of the two-year period, the conditional LPR and his spouse must submit a joint application for removal of the conditions with evidence of a bona fide marriage not entered into for the purposes of committing immigration fraud.

     The divorce attorney must be careful when counseling the CPR on divorce. Remaining in a marriage merely to retain your green card is analogous to marrying for a green card. Providing false or misleading information for the purposes of obtaining an immigration benefit can result in denial of the immediate petition, denial of future applications, and can result in revocation of CPR status and/or denial of citizenship. Is it a material misrepresentation to file an application to remove conditions and wait to file for divorce until the application is approved? Will false statements be required at the interview? Maybe, if they are expressing a profound love for each other while counting the days until they can get a final decree of divorce. A troubled marriage is not necessarily a fraudulent one, but it may be better to not muddy the waters by trying to prove a good marriage exists when it does not.

     Divorce, although problematic, is not an automatic bar to condition-free permanent residency. The divorced CPR can apply to remove conditions on his own, but - and it’s a big “but” - he must prove the marriage was bona fide without the help of his wife sitting beside him. The CPR should be careful to preserve evidence the marriage was legitimate at the beginning and later fell apart only after he found out she snores and she found out he leaves the toothpaste tube uncapped. Proof of mutual residence, joint accounts, joint assets, children of the marriage, mutual wills, and other things married couples typically do, can overcome a presumption of a marriage fraud. The still-married CPR can also apply on her own if she is a victim of domestic violence committed by the spouse, but must show 1) she was battered or subjected to extreme cruelty; and 2) the abuse occurred during the period of conditional permanent residence.

     Another issue to be aware of is the alien who is married to a US citizen or permanent resident, but who is waiting for approval of his or her adjustment to permanent resident. The act of marriage itself does not confer any immigration benefits nor citizenship, as some believe. The U.S. citizen, or LPR, must file a petition on behalf of his or her spouse. Divorce will terminate the petition and leave the alien out of status, and may result in the initiation of removal proceedings by Immigration and Customs Enforcement (ICE). The alien typically cannot self-petition unless she was the victim of domestic violence.

     One problem which often does not become apparent until long after a divorce is final and the children are grown, is unpaid child support obligations. When an LPR wishes to become a naturalized citizen, he or she must prove, among other things, he or she possesses “good moral character.” Failure to comply with court-ordered support payments is evidence of lacking moral character. A recent naturalization case processed through my office was nearly derailed because the LPR had difficulty proving he’d been faithfully making his monthly child support payments (yet another reason cash is not a good form of payment). Fortunately, he and his ex-wife had a fairly civil relationship and she had a handwritten list of dates and amounts going back 15 years - she also had calendars showing every weekend and holiday he had spent with the children, which helped establish the veracity of her handwritten payment ledger. The LPR (and any divorcing client) with minor children should be counseled to pay court-ordered support and to keep proof of payments. Where the payments are made through a child support office, this may not be an issue, but for direct pay, the client should write a check and keep bank statements.

     The best way to keep a divorce from turning into an immigration problem is to first ask a client about her immigration status, even if she doesn’t “look like an immigrant.” If he or she is not a U.S. citizen, there may be an immigration issue that must be resolved before filing for divorce. Second, determine what her immigration status is. And if she doesn’t know or isn’t sure, contact an immigration lawyer to help her figure it out. Third, if your client tells you she has an “H-1A” visa and that sounds like she has a serious strain of flu, consult with a reputable immigration attorney to make sure the client’s immigration status is protected to whatever extent possible. Better to make sure the client understands the possible consequences of divorce than to have her call you afterwards just to let you know she’s happy to be free from that no-good heel, but is now in removal proceedings because the divorce terminated her legal status.

^•Dawn Garcia is a solo practitioner in Franklin, Tennessee. Her areas of practice include immigration, family law and bankruptcy law. Ms. Garcia received her B.S. degree from Middle Tennessee State University in 2003 and her J.D. from Vanderbilt University School of Law in 2006. She is a member of the Tennessee and Wisconsin Bars as well as the American Immigration Lawyers Association. Ms. Garcia may be contacted at www.dawngarcialaw.com.

By Terry Olsen*

     For immigration law purposes, divorce is the legal termination of a valid marriage, but separation does not legally terminate a marriage, unless a separation agreement as drafted and/or per the relevant state law or applicable country is seen to have the legal effect of a divorce. Nonetheless, the immigration lawyer must be diligent in keeping consistent contact with his Conditional Permanent Resident (“CPR”) client in order to be aware of all issues concerning the condition of the client’s marriage, such as physical separation, legal separation, and divorce.

     Before exploring the effects of a divorce for a CPR, it is best to provide an overview of the normal process for a CPR and the U.S. citizen spouse to petition to remove the Conditions on Residence. For a normal process without a pending divorce or a final order of divorce, the CPR must file the Form I-751 Petition jointly with the U.S. citizen spouse within 90 days preceding the second anniversary of the awarding of the green card. The joint petitioners have the burden to prove the marriage was entered in good faith and not entered in for the purpose of evading U.S. immigration laws.

     For the normal I-751 process, the petitioners usually submit the following: proof of joint ownership of property (joint tenancy); commingling of assets such as insurance policies, joint bank accounts, joint credit accounts, tax forms; birth certificates of children born to the petitioners; photos of the petitioners; and sworn affidavits of people attesting to the relationship of the petitioners.

     In the context of a divorce not being finalized, and thereby a dissolution of a marriage is still pending, the CPR must file an I-751 Petition jointly with his U.S. citizen spouse. INA §216(c)(3)(A) and (B) and 8 CFR § 216.4(c) provide the USCIS may approve the I-751 Petition and remove the CPR’s conditions if:

                •  The CPR and petitioning spouse (unless deceased) jointly file an I-751 within the 90 days immediately before the two-year anniversary of the date the CPR obtained permanent resident status;

                • The CPR and petitioning spouse (unless deceased) appear for an interview; and

                • USCIS determines the following facts are true:

                • the marriage was legal where it took place;

                • the marriage has not been terminated;

                • the marriage was not entered into for the purpose of procuring permanent residence status; and

                • no fee (other than attorney for filing assistance) was paid for the filing of the underlying I-130 or I-129F (fiancé visa).

     Note the USCIS may not deny an I-751 Petition solely because the spouses are separated, and/or have initiated divorce or annulment proceedings. At the same time, the USCIS has the discretion to consider legal separation or initiation of divorce or annulment proceedings as suggesting the CPR entered into the marriage for the sole purpose of procuring permanent resident status.

     In the context of a final order of divorce having been issued, the CPR cannot file jointly due to the termination of the marriage before the two-year anniversary, but the CPR may file alone after requesting a waiver to remove the joint filing requirement. The CPR must show the qualifying marriage was entered in good faith. As a qualification of the waiver, the CPR must submit proof the marriage has been terminated either through divorce or annulment. It is important to highlight the USCIS determines whether the marriage was entered in good faith based on the intentions of the parties at the inception of the marriage. The CPR has the burden of proving the marriage was in entered in good faith and not entered in for the purpose of evading U.S. immigration laws. The USCIS service center will refer the I-751 Petition to the nearest USCIS office so an interview of the CPR will be conducted regarding the waiver.

      It is imperative the CPR file a waiver of the joint filing requirement for the I-751 Petition once the divorce order has been issued. The CPR is ineligible for an approval of an I-751 Petition if the marriage is terminated and a waiver has not been filed. If the marriage terminates after the submission of the I-751 Petition, but before its approval and a waiver petition has not been filed, the CPR spouse will not have the condition removed and will become subject to removal proceedings.

* Terrence L. Olsen formed his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee in 2003. He received his B.A. degree in English from the University of Tennessee at Chattanooga, a Master of Fine Arts in Creative Writing from Southern Illinois University, and his J.D. from the William and Mary School of Law. His practice areas include both employment immigration law and family immigration law. Mr. Olsen is an adjunct professor at Bryan College for its MBA program, and most recently taught an immigration paralegal course at Chattanooga State for the Fall of 2009. He has given immigration law lectures to international students and advisors at numerous universities. Mr. Olsen is the Chair of the TBA’s Immigration Law Section. He may be contacted at tolsen@tlolaw.com.

NOTICE: The information available in this newsletter includes basic legal information and is not a substitute for legal advice or professional alternative dispute resolution advice. The information is provided for general information only. It should not be considered legal advice or other professional advice. You should consult an attorney if you have questions concerning any specific situation.

Terrence Olsen
Chair
Olsen Law Firm
(Chattanooga)
(423) 648-9390
tolsen@tlolaw.com

Susan Schultz Davis
Davis Immigration
(Knoxville)
(865) 470-4307
susan@davisimmigration.com

Rehim Babaoglu
Vice-Chair
Thomason Hendrix Harvey Johnson & Mitchell PLLC
(Memphis)
(901) 525-8721
babaogluR@thomasonlaw.com

Bruce Buchanan
Newsletter Editor
King & Ballow
(Nashville)
(615) 726-5484
bbuchanan@kingballow.com

Barry Frager
Treasurer
The Frager Law Firm PC
(Memphis)
(901) 763-3188
bfrager@fragerlaw.com

Jeremy Jennings
Secretary
Jennings Immigration Law Office
(Knoxville)
(865) 470-0788
Jeremy@jenningsimmigration.com

Sean Lewis
UPL Committee Liaison
Law Offices of Sean Lewis PLLC
(Nashville)
(615) 646-6002
Sean@SeanLewisAttorney.com

Mona Mansour
West TN Delegate
Apperson Crump & Maxwell
(Memphis)
(901) 156-6300
mmansour@appersoncrump.com

Timothy Price
Pro Bono Committee Chair
(Memphis)
(901) 525-5524
tprice@justice.com

Mario Ramos
Middle TN Delegate
Mario Ramos PLLC
(Nashville)
(615) 329-4588
Mario@mrvisa.com

Allison Wannamaker
Pro Bono Committee
Thomason Hendrix Harvey Johnson & Mitchell PLLC
(Memphis)
wannamakera@thomasonlaw.com

Elaine Witty
Legislative Committee-Chair
Siskind Susser PC
(Memphis)
(901) 682-6455
ewitty@visalaw.com

Description:

This Immigration Law Enforcement Seminar is specifically designed for both lawyers who are experienced immigration lawyers, and for lawyers who may never practice immigration law during their career. Currently, immigration law enforcement—on a federal level and a state level—can and most likely will affect a lawyer’s practice no matter what type of law that the lawyer practices. Therefore, lawyers relatively new to the practice of law or to immigration practice or even the experienced lawyer should attend this Seminar on April 16, 2009.

This seminar will focus on the basics of immigration law enforcement as it pertains to being a practicing lawyer in Tennessee.

The Basics:

Credit Hours: EP: 0.00 Dual: 0.00 General: 3.00

Producer(s): Terrence Olsen

Speaker(s): Rehim Baboglu, Bruce Buchanan, General Robert E. Cooper, Jr., Daron Hall

Format: On site

Location: Tennessee Bar Center - Nashville

Registration: April 16, 2010 8:00 AM - 8:30 AM

Course Schedule: April 16, 2010 8:30 AM - 11:45 AM

Sponsoring Sections: Immigration Law

Agenda: Immigration_Agenda (2).pdf

The Costs:

$115.00 section member price

$135.00 TBA member price

$197.50 non-member price (Includes TBA Complete Membership)

$260.00 non-attorney price

TBA members who are judges, lawmakers and law students can take TennBarU onsite courses at no charge for the programming. There may be a separate charge if meals, special materials or other premium features are involved.

Regsitrations for On Site courses within five(5) days of the course may be charged a late fee.
 

REGISTER NOW