USCIS scare, AOS approved and Divorce pending

[rebeccajo 14]

This strict legal/illegal point of view fails to account for an important difference that needs to be kept in mind. An immigration benefit is not a right that must be granted. In a criminal matter, the burden of proof is on the government to show a violation. For immigration, the burden of proof is on the immigrant to show qualification. In the absence of any evidence, the criminal goes free and the immigrant is denied.

As a general matter, I agree with you wholeheartedly. The fact, however, that the alien has the burden of proof when it comes to immigration benefits does not change the analysis above in the least. If the applicable law does not require the alien to disclose the fact that he is going through a divorce and does not permit the government to use such nondisclosure against him, then the immigration benefit cannot be denied simply because USCIS "does not like" the nondisclosure.

Let me ask you this.

If the RESULT of an officers findings can be a denial based upon termination of the marriage (defined as diaddie said several posts back as separation) what purpose is served in 'non-disclosure' of such facts other than to temporarily delay the denial, or to somehow circumvent it?

I concur with John. The main difference in the immigration process vs. civil or criminal law is a benefit versus a constitutional right.

Edited August 28, 2006 by rebeccajo

[john_and_marlene 162]

This strict legal/illegal point of view fails to account for an important difference that needs to be kept in mind. An immigration benefit is not a right that must be granted. In a criminal matter, the burden of proof is on the government to show a violation. For immigration, the burden of proof is on the immigrant to show qualification. In the absence of any evidence, the criminal goes free and the immigrant is denied.

As a general matter, I agree with you wholeheartedly. The fact, however, that the alien has the burden of proof when it comes to immigration benefits does not change the analysis above in the least. If the applicable law does not require the alien to disclose the fact that he is going through a divorce and does not permit the government to use such nondisclosure against him, then the immigration benefit cannot be denied simply because USCIS "does not like" the nondisclosure.

Do you have something that says a nondisclosure cannot be used against him? I would think it would at least cause more scrutiny to be applied to other qualifying/disqualifying areas.

It's just not that black and white. Can you say that there is noone in jail that did no wrong, committed no offense, told no lie, and yet was not believed because of some suspicious action or ommission of fact?

[TracyTN 237]

Hi Everyone,

i filed my AOS (I-130/I-485) sometime feb 2003 from clarksburg WV and recently had our interview at pittsburgh USCIS in jan 2006. Case was pending namecheck and recently got approved in 14th april 2006.

Since jan 2006 after our AOS interview, our relationship isn't strong and we have been living separately with no joint finances. We filed a no-fault divorce last month. However, I still haven't received either the welcome notice or the PR card.

I was also told to wait to receive the I-551 stamp until welcome notice is sent from VSC. However, I walked-in to USCIS at Charleston WV cuz of medical emergency and realized that I have to wait for 3 hours. They made me wait saying there is problem in the case. Eventually they invited me to a room and asked if we are still married and that if i lie, it will be perjury etc etc ....

Since divorce process wasn't completed, I said "yes, we are married". I am sure VSC will be aware of this as well.

Is there a possibility of my i-485 to be denied after local service center approval ?

I have email from Pittsburgh USCIS and 6-month I-551 stamp to prove i-485 approval.

What happens when case is approved and ready for green card production and divorce happens ?

Any information or pointers on the same will be highly appreciated.

Thanks

Atul

I'm sorry to interject in all this fun, but I am confused. Was the OP in the process of a divorce at the time of the interview or not? I bolded the part of the original post which are causing me to ask. It reads as if the marriage broke down AFTER the AOS interview - in which case, what are we arguing about?

Edited August 28, 2006 by TracyTN

[Dr_LHA 3]

Read the OP's post again. After his AOS interview he filed for divorce. Then he went into a USCIS office because of "medical emergency" (AP?) and he got taken into a room and quizzed by the USCIS officers.

IMHO this quizzing wouldn't have happened unless USCIS had got wind of the fact he was divorcing his wife. So at that point, him "holding back" the fact he was getting divorced by stating "yes, we are married", is going to prejudice USCIS against him in processing his Green Card, because the USCIS officier is basically going to think: "This guy is holding back information, sounds like he's trying to scam us".

Edited August 28, 2006 by dr_lha

[am1996 0]

Let me ask you this.

If the RESULT of an officers findings can be a denial based upon termination of the marriage (defined as diaddie said several posts back as separation) what purpose is served in 'non-disclosure' of such facts other than to temporarily delay the denial, or to somehow circumvent it?

I concur with John. The main difference in the immigration process vs. civil or criminal law is a benefit versus a constitutional right.

Rebecca, this is an aside, but I appreciate both the substance of the question as well as the tone. To the extent I haven't done it before, I'll do my best to reciprocate.

If the law says that USCIS adjudicators may only deny the OP's petition if he is legally divorced, then the fact that a divorce decree has been merely FILED would have no effect on him. Once again, we do not know what the requirements of the applicable laws are as they relate to this specific situation, which is the reason that we cannot answer the OP's question one way or the other, or tell him that his actions were "intelligent" or "dumb."

In order for the OP to get in trouble, his nondisclosure must be somehow penalized by the applicable law. If he was not required to make the disclosure and the government is not allowed to hold it against him, he CANNOT get in trouble. This is the way ALL laws work, both civil and criminal, immigration statutes and traffic ordinances, etc...

[TracyTN 237]

Thanks dr_lha.

[Dr_LHA 3]

Let me ask you this.

If the RESULT of an officers findings can be a denial based upon termination of the marriage (defined as diaddie said several posts back as separation) what purpose is served in 'non-disclosure' of such facts other than to temporarily delay the denial, or to somehow circumvent it?

I concur with John. The main difference in the immigration process vs. civil or criminal law is a benefit versus a constitutional right.

Rebecca, this is an aside, but I appreciate both the substance of the question as well as the tone. To the extent I haven't done it before, I'll do my best to reciprocate.

If the law says that USCIS adjudicators may only deny the OP's petition if he is legally divorced, then the fact that a divorce decree has been merely FILED would have no effect on him. Once again, we do not know what the requirements of the applicable laws are as they relate to this specific situation, which is the reason that we cannot answer the OP's question one way or the other, or tell him that his actions were "intelligent" or "dumb."

In order for the OP to get in trouble, his nondisclosure must be somehow penalized by the applicable law. If he was not required to make the disclosure and the government is not allowed to hold it against him, he CANNOT get in trouble. This is the way ALL laws work, both civil and criminal, immigration statutes and traffic ordinances, etc...

You're making the same basic mistake over and over. A person isn't "penalized", they're simply not given a green card. This isn't considered a punishment, its just "not giving a benefit".

Experience of many people on shows that USCIS can deny GC for any reason they damn well please. If they think the guy is going to get divorced as soon as he gets his green card, and they suspect this is because the marriage is fake, they will deny his application. The only recourse he has against this is to file an appeal in which the burden of evidence is on him, not USCIS, to prove his case.

[am1996 0]

You're making the same basic mistake over and over. A person isn't "penalized", they're simply not given a green card. This isn't considered a punishment, its just "not giving a benefit".

For the purposes of this analysis, this "benefit" vs. "right" distinction is irrelevant. It doesn't matter whether he does not receive a benefit or is denied a right if the denial is based on something that the government is not allowed to take into account.

[john_and_marlene 162]

The permanent residence can be taken away after approval if it is discovered that the marriage was for immigration benefit only. In this case, it appears that additional information was produced by the USCIS that indicated that such a fraud has been perpetrated. For him to overcome this suspicion, he would have to present some evidence that the marriage was bonafide even though he filed for divorce. If he stands by the "correctness" of his declaration that he was married -- implying an ongoing relationship, he has cut his opportunity short of supplying evidence that might be beneficial to him. With the suspicion of fraud and no evidence by the OP to negate it, the benefit will likely be denied/rescinded.

[Dr_LHA 3]

It doesn't matter whether he does not receive a benefit or is denied a right if the denial is based on something that the government is not allowed to take into account.

You're living in la-la land if you believe that's how USCIS works. If you really are a lawyer you will have heard of something called reasonable doubt. If USCIS has any reasonable doubt that you are defrauding them, they will deny the Green Card benefit and do not have to provide any evidence or burden of proof as to why they denied his application.

What about this can you not understand? They are obviously suspicious of the OP, as apparent in the grilling. It matters not whether he what he said was a lie or the truth. If they don't belief his marriage is real, he won't get a green card. Its up to him to prove the USCIS officier wrong in his suspicions. If he doesn't he'll get denied, simple as that.

Only after that can you start talking about law, in the appeals process.

[john_and_marlene 162]

You're making the same basic mistake over and over. A person isn't "penalized", they're simply not given a green card. This isn't considered a punishment, its just "not giving a benefit".

For the purposes of this analysis, this "benefit" vs. "right" distinction is irrelevant. It doesn't matter whether he does not receive a benefit or is denied a right if the denial is based on something that the government is not allowed to take into account.

They can't take into account anything he didn't give them. In this case they can't take into account any evidence that the marriage was bonafide despite a filing of divorce because he offered none.

They can take into account a lack of evidence to dispute some claim that the marriage may have been for immigration benefit. They don't have to hold it against him that he said he was married. They can hold it against him that he did not show evidence of a bonafide marriage.

[am1996 0]

You're living in la-la land if you believe that's how USCIS works. If you really are a lawyer you will have heard of something called reasonable doubt. If USCIS has any reasonable doubt that you are defrauding them, they will deny the Green Card benefit and do not have to provide any evidence or burden of proof as to why they denied his application.

At the risk of once again sounding condescending, there are specific procedures, statutes and regulations that are in place that specifically govern the type of burden that each party has, the type and the amount of evidence that is required or is sufficient to overcome the burden, etc... The term "reasonable doubt" (just like "totality of the circumstances," which I addressed earlier) has a specific legal meaning and applicability. The reason I am mentioning all of this is because it is entirely possible (we have no way of knowing either way, which is the point that I've been trying to make) that the statute(s) that govern the issue do not allow the OP's nondisclosure to create a "reasonable doubt" or to do anything else to harm the OP and/or to get his benefits denied.

For instance, if the laws say that USCIS is not allowed to deny your AOS petition just because you have a couple of minor speeding tickets, you cannot be legally denied your immigration benefit regardless of the way the USCIS adjudicator feels about speeders or the dangers that they cause.

Once again, my point is not that the OP's actions were intelligent or prudent. My point is that we have NO IDEA, all the speculation on both sides notwithstanding. We can continue making very reasonable, logical and compelling arguments on both sides until cows come home, but none of these opinions or arguments will amount to much until and unless the OP finds out exactly what the law requires of him under the circumstances. To get that knowledge, he will most likely have to go see an immigration lawyer.

Edited August 28, 2006 by am1996

[Kez/JWolf 6]

OMG are you still giving your interpretation of USCIS law.... wow......

Why dont you go and train to be a immigration lawyer.... then once you done that.... do about 2 years work with uscis and get some real experence... then come back and spout the laws at us all...

It is becoming very boring

Kezzie

[Dr_LHA 3]

For instance, if the laws say that USCIS is not allowed to deny your AOS petition just because you have a couple of minor speeding tickets, you cannot be legally denied your immigration benefit regardless of the way the USCIS adjudicator feels about speeders or the dangers that they cause.

True, but a USCIS officer can deny a case if they feel the person is committing fraud in representing a fake marriage for immigration purposes as a real one.

Note the use of the word "feel" as opposed to "prove".

As john_and_marlene pointed out above, the OP does not face loss of immigration benefit because he didn't tell USCIS he's getting divorced, but rather because USCIS suspect (or maybe even know) that he's getting divorced. Getting divorced shortly after getting a Green Card is a huge red flag. The OP has to prove beyond doubt that he is deserving of a Green Card.

[john_and_marlene 162]

This is not about a couple of traffic tickets. The standard of proof here is “preponderance of the evidence” unless there has been a previous finding of fraud.

When derogatory evidence has be found, opportunity is given to rebut the evidence. It could be argued that they gave the OP that opportunity when they asked him about his marriage.

http://www.uscis.gov/lpbin/lpext.dll/inser...pter-32-11-46-1

Rebutting Derogatory Evidence. Derogatory information, like supporting documentation, need not comply with the strict rules of evidence. However, the adjudicating officer must keep in mind that the applicant or petitioner must be afforded an opportunity to inspect and rebut adverse information, except certain classified materials, which should be discussed in general terms without jeopardizing the security of the information or the source. [see 8 CFR 103.2( B )(16) and Matter of Tahsir, 16 I&N Dec. 56 (BIA 1976). See also Appendix 10-5 of this field manual.]

Edited August 28, 2006 by john_and_marlene