USCIS scare, AOS approved and Divorce pending

[john_and_marlene 162]

Ok John. I think but am not sure that you and I are on the same page.

I thought the salient point in that ruling was the last sentence...."The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

As a layperson (which I am) to me this sort of gets to the heart of the OP's initial query.

And just for my understanding - why wouldn't jury instructions be a good place to look for an understanding of the law? I thought that's what jury instructions were - spelling out to laypeople what information they must look at and what reasoning they must use in order to come to a lawful conclusion. Not what they personally think is right or wrong, but what the law says.

LOL....I really hope I haven't spent the last 15 years of my life in this law office with my head up my proverbial rear.....

We are sort of on the same page. The link you give was for the criminal conviction of someone accused of immigration fraud. If the OP were ever charged and tried for the suspected fraud, the prosecution would have to provide this level of proof. My point is that the USCIS do not even have to meet this level of proof to deny the GC--they just have to rule that the evidence of fraud that they have is more convincing to them than any evidence to the contrary. They don't have to convict him of the criminal offense to deny the benefit. The adjudication of the benefit is not a criminal ruling and doesn't have to meet the same standard of evidence. Why do I make the distinction here? Because I don't want to leave the impression that this level of proof is required to deny the benefit.

[rebeccajo 14]

Are we talking about different statutes?

Ok John. I think but am not sure that you and I are on the same page.

I thought the salient point in that ruling was the last sentence...."The government need not prove that the defendant knew the specific immigration law he was evading, but rather need show only that the defendant acted with knowledge that his conduct was unlawful. "

As a layperson (which I am) to me this sort of gets to the heart of the OP's initial query.

And just for my understanding - why wouldn't jury instructions be a good place to look for an understanding of the law? I thought that's what jury instructions were - spelling out to laypeople what information they must look at and what reasoning they must use in order to come to a lawful conclusion. Not what they personally think is right or wrong, but what the law says.

LOL....I really hope I haven't spent the last 15 years of my life in this law office with my head up my proverbial rear.....

We are sort of on the same page. The link you give was for the criminal conviction of someone accused of immigration fraud. If the OP were ever charged and tried for the suspected fraud, the prosecution would have to provide this level of proof. My point is that the USCIS do not even have to meet this level of proof to deny the GC--they just have to rule that the evidence of fraud that they have is more convincing to them than any evidence to the contrary. They don't have to convict him of the criminal offense to deny the benefit. The adjudication of the benefit is not a criminal ruling and doesn't have to meet the same standard of evidence. Why do I make the distinction here? Because I don't want to leave the impression that this level of proof is required to deny the benefit.

Ok, ok...yes yes that's exactly what I thought. And that's what I thought when I read the ruling. Hey I'm not a lawyer....just a lowly legal secretary and yeah, the bosses have to explain stuff to me. I figure that's what they make the big bucks for.

[john_and_marlene 162]

Are we talking about different statutes?

Yes

[Aussielad 37]

am1996 what type of law are you in??

[am1996 0]

We are sort of on the same page. The link you give was for the criminal conviction of someone accused of immigration fraud. If the OP were ever charged and tried for the suspected fraud, the prosecution would have to provide this level of proof. My point is that the USCIS do not even have to meet this level of proof to deny the GC--they just have to rule that the evidence of fraud that they have is more convincing to them than any evidence to the contrary. They don't have to convict him of the criminal offense to deny the benefit. The adjudication of the benefit is not a criminal ruling and doesn't have to meet the same standard of evidence. Why do I make the distinction here? Because I don't want to leave the impression that this level of proof is required to deny the benefit.

I completely agree with you there. In general terms, with the same exact facts, it is certainly far easier to deny somebody a civil benefit than to convict that person of a criminal offense. This is as axiomatic as it gets.

The interesting thing about the cases that have been posted is that the government did not prevail in them inspite of the burden being on the alien to establish that he qualifies for the immigration benefits. The cases also greatly clarified and in many cases curtailed the amount of discretion given to USCIS as it adjudicates these cases.

[rebeccajo 14]

Are we talking about different statutes?

Yes

Oooooooooooooooooooo............I'm soooooooooooo confused!!!!

[JenT 0]

I still have a headache.

[john_and_marlene 162]

We are sort of on the same page. The link you give was for the criminal conviction of someone accused of immigration fraud. If the OP were ever charged and tried for the suspected fraud, the prosecution would have to provide this level of proof. My point is that the USCIS do not even have to meet this level of proof to deny the GC--they just have to rule that the evidence of fraud that they have is more convincing to them than any evidence to the contrary. They don't have to convict him of the criminal offense to deny the benefit. The adjudication of the benefit is not a criminal ruling and doesn't have to meet the same standard of evidence. Why do I make the distinction here? Because I don't want to leave the impression that this level of proof is required to deny the benefit.

I completely agree with you there. In general terms, with the same exact facts, it is certainly far easier to deny somebody a civil benefit than to convict that person of a criminal offense. This is as axiomatic as it gets.

The interesting thing about the cases that have been posted is that the government did not prevail in them inspite of the burden being on the alien to establish that he qualifies for the immigration benefits. The cases also greatly clarified and in many cases curtailed the amount of discretion given to USCIS as it adjudicates these cases.

The decisions there just said you cannot declare that a marriage is not bonafide just because a couple does not live together. The immigrant still has the burden of proof that the marriage is bonafide, but simply not living together cannot be the determining factor.

As I said before, the viability of the marriage is not the same as being bonafide. The USCIS may not make determinations of viability, but can make determinations whether it is bonafide.

[am1996 0]

am1996 what type of law are you in??

I am a mid-level/senior corporate finance associate at a very large national firm. While I am a US citizen, I was not born in the US and have only been naturalized a few years ago. In fact, I've had to deal with the old INS and USCIS all through the undergrad and law school and have numerous friends who've done the same.

NONE of this gives me or anybody else out there ANY credibility, however. Instead of focusing on the person's background (and sooooooooooo many people misstate/exagerate their backgrounds on the Internet), I continue to invite people to examine my reasoning and the support I provide for it and then form their own opinions on the matter.

[john_and_marlene 162]

I'm a janitor - but that may be an exaggeration

[am1996 0]

The decisions there just said you cannot declare that a marriage is not bonafide just because a couple does not live together. The immigrant still has the burden of proof that the marriage is bonafide, but simply not living together cannot be the determining factor.

As I said before, the viability of the marriage is not the same as being bonafide. The USCIS may not make determinations of viability, but can make determinations whether it is bonafide.

This is all 100% correct. These cases (and I am certain that there are others that further clarify the issue) establish the following, however:

1) A marriage entered into in good faith and still "legally unterminated" is sufficient to support an AOS petition;

2) Once an alien is able to prove that the marriage was entered into in "good faith" and that it has been "consummated," USCIS is REQUIRED and has NO DISCRETION but to award the petitioner an alien status without regard to the marriage's solidity or viability;

3) Unless there is EVIDENCE (rather than "feelings" or "suspicions") that the marriage was a fraudulent or a sham marriage, the fact that the alien misrepresents that he and his wife are still residing together does NOT consitute a material misrepresentation and does NOT render him ineligible for an adjustment of status.

These cases have other rather important holdings but I'll leave those to somebody else.

[john_and_marlene 162]

I'm a janitor - but that may be an exaggeration

OK ... I'm not a janitor, but I can perform heart surgery cause I saw it once on T.V.

The decisions there just said you cannot declare that a marriage is not bonafide just because a couple does not live together. The immigrant still has the burden of proof that the marriage is bonafide, but simply not living together cannot be the determining factor.

As I said before, the viability of the marriage is not the same as being bonafide. The USCIS may not make determinations of viability, but can make determinations whether it is bonafide.

This is all 100% correct. These cases (and I am certain that there are others that further clarify the issue) establish the following, however:

1) A marriage entered into in good faith and still "legally unterminated" is sufficient to support an AOS petition;

2) Once an alien is able to prove that the marriage was entered into in "good faith" and that it has been "consummated," USCIS is REQUIRED and has NO DISCRETION but to award the petitioner an alien status without regard to the marriage's solidity or viability;

3) Unless there is EVIDENCE (rather than "feelings" or "suspicions") that the marriage was a fraudulent or a sham marriage, the fact that the alien misrepresents that he and his wife are still residing together does NOT consitute a material misrepresentation and does NOT render him ineligible for an adjustment of status.

These cases have other rather important holdings but I'll leave those to somebody else.

I would say that filing a no-fault divorce immediately after the AOS interview is EVIDENCE. Unless the OP supplies some measure of evidence to rebut it, the scales tip in the direction of fraud. They apparently had other evidence too based on their allegations. I doubt they asked the questions out of the blue.

I think the missing element for the OP is the good faith part.

[rebeccajo 14]

I'm a janitor - but that may be an exaggeration

BWAHAHAHAHAHAHAHAHAHAHA!

[TracyTN 237]

OK ... I'm not a janitor, but I can perform heart surgery cause I saw it once on T.V.

And I stayed at a Holiday Inn Express last night!!

[am1996 0]

I would say that filing a no-fault divorce immediately after the AOS interview is EVIDENCE. Unless the OP supplies some measure of evidence to rebut it, the scales tip in the direction of fraud. They apparently had other evidence too based on their allegations. I doubt they asked the questions out of the blue.

I think the missing element for the OP is the good faith part.

John, I think that we all understand your argument and find it quite compelling. I also think that we all agree at this point that USCIS' inquiry will focus on all the circumstances surrounding the marriage and that the OP will be required to establish, by a preponderance of the evidence, that his marriage had been entered into in "good faith," as that term is defined in case law.

My only point all along has been that the OP's response to USCIS' "are you still married" question may not have been unlawful, imprudent or "dumb." The cases (at least the ones that have been posted in this thread) seem to suggest that his answer either did NOT amount to a misrepresentation or, even if it did, that the misrepresentation does NOT make him ineligible for an adjustment of status. Do you agree with this assessment?

Edited August 29, 2006 by am1996