Issues concerning child custody are always intense and even more so during the holidays as families and children inevitably struggle with who are the children going to be with on which day. When an immigration component is present, it sometimes is used as a threat by one parent against the other. I have seen threats made in cases where both parents are in the United States as well as in situations when one parent is in the United States and the other is outside. In both situations, an undocumented parent should not be afraid of losing custody only due to immigration status.
A few days ago, USCIS released a new policy memo on the approval of visa petitions for widows/widowers. The new policy allows a spouse of a deceased petitioner to continue with the immigration process even if the surviving spouse has remarried. (Under prior interpretation of the law, a surviving spouse could not immigrate if he or she remarried after the death of the petitioner.)
The reason for the new policy is due to a decision in a case called Williams V. Secretary, US Dept. of Homeland Security, 471 F.3d 1228 (11th Cir. 2014). In Williams, a foreign born spouse, Raquel Pascoal, married a U.S. Citizen, Derek Williams, and he filed a Form I-130 (Petition for Alien Relative) on her behalf. Mr. Williams died before USCIS adjudicated the petition. Ms. Pascoal then filed a Form I-160, Petition for a Widow(er). USCIS denied that petition because she had not been married to Mr. Williams for two years. (At that time the law required that a marriage must have had lasted two years.) She then remarried and divorced a short time thereafter. Upon her divorce, she sought to reopen the relative petition that Mr. Williams had filed on her behalf, but USCIS denied that as well indicating that she was prevented from reopening the I-130 because she had remarried.
The Court held that the statute did not prevent Ms. Pascoal from doing exactly as she planned on doing – she could seek to reopen her prior immigrant visa petition despite her remarriage. USCIS has now decided to adopt Williams as policy in all cases in the United States.
The new policy plays out like this:
If the U.S. Citizen spouse filed a petition for alien relative (Form I-130) before the U.S. Citizen spouse died and the surviving spouse has not remarried:
The I-130 will automatically convert into a Form I-160, petition for a widow(er). The surviving spouse can seek to immigrate as a widow(er).
If the U.S. Citizen spouse filed a petition for alien relative (Form I-130) before the U.S. Citizen spouse died and the surviving spouse has remarried:
The I-130 will remain an I-130. The surviving spouse may continue with the immigration process provided that he or she was residing and still resides in the United States at the time the petitioner died.
In either situation, it does not matter whether USCIS had approved the petition prior to the petitioner’s death. Nevertheless, a petition may still be denied on the merits if it would have been subject to denial if the petitioner had not died.
The policy memo does not change the law for widow(er)s of U.S. Citizens who are in the United States on K-1 visas. As long as the K-1 married the U.S. Citizen within 90 days of admission, the K-1 (and any children on K-2 visas) may continue the immigration process by applying for adjustment of status. It is not necessary for the widow(er) to file a Form I-360, just as it would not have been necessary to file a new Form I-130, had the petitioner not died. For non-immigrants on K-3 or K-4 visas (foreign citizen spouse and children of U.S. Citizens), their Forms I-130 would convert into Forms I-160 and they would continue the immigration process as widow(er)s and children of widow(er)s.
It is important to note that the policy of permitting widow(er)s to immigrate on a petition even if they have remarried only applies to those surviving spouses who were married to U.S. Citizens. It does not apply to spouses who were married to lawful permanent residents.
It seems the news is all bad in terms of immigration – stories about closing our borders, or denying the admission of Syrian refugees, or talk of eliminating birthright citizenship. With this kind of news, it seems that the situation is hopeless for immigrants. It does seam bleak. Nevertheless, I decided to focus on the positive this Thanksgiving and have come up with a list of programs/visas/strategies for which we can give thanks.
- The refugee program continues to exist
I do not know what will happen with the Syrian refugees and I hope it will be resolved so that everyone feels secure but nevertheless we should be glad that we have a refugee program at all. We have admitted people into the United States from all corners of the world. Right now the topic of the day is Syrian refugees, but in our recent past, we have allowed people to enter as refugees from Viet Nam, the former Soviet Union, and Cuba. We have a tradition, and indeed a responsibility, to admit people into the United States who have been persecuted abroad. Although there is controversy with the current situation, we should be thankful that we remain in a position to admit refugees.
- Immigrants have strong advocates who are involved litigation throughout the country on their behalf
Advocates have tirelessly worked on litigation relating to the Flores v. Reno settlement which regulates the treatment and conditions of unaccompanied minors in federal immigration custody. Litigation is also pending concerning the visa bulletin and the State Department’s counting of available visas. People are calling this litigation “Visagate.” Finally, there is ongoing litigation about DAPA ( Deferred Action for Parents of Americans and Lawful Permanent Residents) and an expansion of DACA (Deferred Action for Childhood Action). By Executive Action, President Obama was seeking to the defer the deportation of certain parents of US Citizens and permanent residents. He also sought to expand the number of children eligible for DACA. The State of Texas filed and obtained an injunction against the government in implementing these programs. Currently the government has filed a Petition for a Petition for a Writ of Certiorari asking the U.S. Supreme Court to overturn the injunction blocking DAPA and expanded DACA. Despite the setbacks, it is nice to know that we have such strong advocates working on these issues.
- The USCIS website is much improved
I know that it may seem silly to give thanks to a website but it has not always been the case that USCIS had a website that had accurate, current information on it. In preparation for this blog post, I was able to go to their website and easily find the material I needed. Over time the website has become easier to use and has been made to include timely and relevant information. This is not true for all government agencies. Of course there are still problems with USCIS and the use of electronic technology but at least the website is working well as a place from which to obtain general information.
- We have visas that are issued for humanitarian cases
Humanitarian visas have not been around that long. U visas, for victims of certain crimes and who have been helpful to law enforcement, have only been around since 2000. The same is true for the T visa, issued for victims of Human Trafficking. We are fortunate that our government has recognized these victims and that the law allows them to apply for temporary status, leading to a permanent status. These visas are used a lot now but there was a time, when we did not have them. They help people remain safely in the United States who would, in most cases, not otherwise have had a way of legally remaining here.
We have a great deal for which to be thankful. Have a nice Thanksgiving.
A common question I receive from my clients when applying for a green card based on their marriage is whether they can bring in their phone to the interview and show the officer their Facebook page. Or, my clients ask it another way, “Can’t the officer just go online and look at my Facebook page?” It is a reasonable question. No one prints out photos any more. Everything is online. Unfortunately the answer is “no,” for a couple of reasons. First, you want to give the officer hard copies of proof of your good faith marriage – you want them to have something they can look at later when reviewing your case. Second, the officer does not have the time and probably the internet access to go look at your Facebook page. Also, Facebook pages can be taken down easily. It is not the best proof of your good faith marriage. Below are some suggestions of what you should submit as proof of your good faith marriage.
1. Print out pictures, texts, tweets and submit hard copies
You can and should use material from social media as proof of your relationship. However, you cannot give your twitter name and expect the officer to log onto Twitter and find you. You must print out all tweets, pictures, texts – whatever you want to use.
2. Submit documents that show proof of shared financial assets and debts
Social media is not the best proof of a good faith marriage and indeed, I would rank it last. What USCIS wants to see and expects to see is proof that you are living together and sharing a life together. They expect to see everything in joint name – checking accounts, credit cards, savings accounts, investments, etc. Now, you do not have to dramatically change your life if you do not want to. Many people keep separate checking accounts and do not want to commingle their money. This is fine, but you will need to explain to the officer why you handle your funds the way you do and you should plan on submitting more of the other types of evidence if you do not have much in the way of shared financial documentation.
3. Submit proof that you are residing together and you are sharing a life together
There is a great deal of other proof that you may submit. If you are renting a place to live, you should submit a lease agreement. If you own a place, the joint title. If you have life insurance, renters’ insurance or home insurance together, submit copies of the policies. If your spouse is a beneficiary on benefit plans that you receive from your employer, you should submit those as well. You may submit all other proof that goes along with living together – copies of phone bills, utility bills, cable bills. Ideally you have this documentation in both of your names. Submit proof that you have taken trips together – copies of itineraries, plane tickets, and hotel bills.
4. Submit photos, not videos
Again, you cannot refer a USCIS officer to a website to look at your photos. Also, you cannot bring a video in and expect the officer to watch your wedding. Everything should be printed out. Print out your photographs and attach them to standard size paper (so they do not get lost). Do not give them 100 photos. Choose 20 or so that show your relationship over a period of time, not just your wedding, but events that have taken place after that. Photos with other family members are the best.
Be creative with what you submit. If you submit a variety of items, you will be successful at your interview.