AOS Interview at Sacramento,CA

[Lexlee08 18]

Hi everybody,

My brother had his interview at the Sacramento office today, he is adjusting basing from a marriage to a USC. He has been here since Aug. 2000(B1/B2), so he has overstayed for 10+ years. They got married 10/10/10, my brother had his divorce finalized April 2010, the problem is my sis-in-law. She had a domestic partner and she filed for dissolution of the domestic partnership Sep. 2010 and up to this time, she has not received a final decree. They were both surprised 'coz they were not expecting that this will be even brought up 'coz the federal government does not recognize same-sex union/domestic partnership. When they got married my sis-in-law never thought that the domestic partnership issue will come up. Anyways, long story short, the IO took my brother's EAD and I-94, and she told them that she needs a copy of the file regarding the domestic partnership dissolution. She told them that they will inform them of the result in writing after she reviews their case. So, they are really worried right now. The domestic partnership is here in CA, and my brother's divorce is also from CA, they got married in Reno, NV. The IO also kept insisting that if my brother worked the 10 years he's been here and that is considered fraud, of course my brother just kept quiet as he did not want to antagonize the IO. They faxed the file to her when they got home, so we are just waiting at this time. She even mentioned the fact that she can deny them instantly 'coz the validity of their marriage is in question, but she gave them a chance to give her the files that they had.

So, what do you think guys? Do they normally take your EAD and I-94 without approval or denial? I'm also nervous for them.

[bettermuscome 12]

a really watered down version of the story, there is more to this than meets the eye!

[Lexlee08 18]

What do you mean watered down version of the story bettermuscome? What do you wanna know, that I can clarify for you. I know it looks suspicious and not so typical, but the are happily married and have been trying to have kids as soon as possible. My sis-in-law realized that she has no future with a same-sex partner. It is probably a rebound relationship for both of them but they are happy and that's all that matters at this time. My sis-in-law is the USC and she knew about my brother's situation in fact she was the one that proposed to him( I know it's weird) but Oh well, who are we to judge with what will make other people happy.

[JimVaPhuong 4,863]

Someone who is in a registered domestic partnership in California is not free to marry someone else without first terminating the domestic partnership. There was a brief window of time in 2008 when registered domestic partners in a same-sex relationship could marry each other, but it has never been possible for someone in a registered domestic partnership to marry someone else without terminating the domestic partnership.

A California domestic partnership can be terminated by filing a Notice of Termination with the California Secretary of State. The couple must meet the eligibility requirements to use the Notice of Termination method. In that case, the domestic partnership would be terminated six months after the Notice of Termination has been registered with the Secretary of State's office. If the couple doesn't meet the requirements for a Notice of Termination then they have to seek termination in a California Superior Court, which is essentially the same process as a divorce.

The IO is asking for the domestic partnership termination file because they're trying to find out if the domestic partnership was still valid at the time of the marriage. From what you've said, it's almost guaranteed that the domestic partnership was still valid. Whether through the Notice of Termination or the Superior Court, the termination would take six months minimum.

The marriage is probably not valid because both parties were not free to marry. The AOS will probably be denied on this basis. The I-130 will also be denied because no valid marital relationship exists. Without a valid marital relationship, your brother has no basis to appeal the decision. There's a reasonable chance he'll be placed in removal proceedings.

Your brother should hire a lawyer - now.

[Lexlee08 18]

Hi Jim,

Thanks for the reply. That is scary, I better tell them to seek legal counsel now. My sis-in-law filed thru the Courts as they did not meet the eligibility criteria to file thru the Secretary of State. Well, at any rate, they just need to figure out what happened to the dissolution, so that way they can re-marry and file again. Do they have to do anything with the NV marriage? Since, it's null and void, from the start then I guess they should not do anything else. Thanks for always giving intelligent and factual advice.

[Myopia 93]

Hi everybody,

My brother had his interview at the Sacramento office today, he is adjusting basing from a marriage to a USC. He has been here since Aug. 2000(B1/B2), so he has overstayed for 10+ years. They got married 10/10/10, my brother had his divorce finalized April 2010, the problem is my sis-in-law. She had a domestic partner and she filed for dissolution of the domestic partnership Sep. 2010 and up to this time, she has not received a final decree. They were both surprised 'coz they were not expecting that this will be even brought up 'coz the federal government does not recognize same-sex union/domestic partnership. When they got married my sis-in-law never thought that the domestic partnership issue will come up. Anyways, long story short, the IO took my brother's EAD and I-94, and she told them that she needs a copy of the file regarding the domestic partnership dissolution. She told them that they will inform them of the result in writing after she reviews their case. So, they are really worried right now. The domestic partnership is here in CA, and my brother's divorce is also from CA, they got married in Reno, NV. The IO also kept insisting that if my brother worked the 10 years he's been here and that is considered fraud, of course my brother just kept quiet as he did not want to antagonize the IO. They faxed the file to her when they got home, so we are just waiting at this time. She even mentioned the fact that she can deny them instantly 'coz the validity of their marriage is in question, but she gave them a chance to give her the files that they had.

So, what do you think guys? Do they normally take your EAD and I-94 without approval or denial? I'm also nervous for them.

I think it was naive on both of their parts to think that the domestic partnership wouldn't be brought up. It may not be used for immigration purposes but it certainly does throw some suspicion on the validity of the new marriage simply because your sister in law must have really loved her ex in order to wish to legalize her relationship in the way that she did. Now here she is married to a man and it turns out that the marriage is probably not valid.

I would definitely get a lawyer.

What type of visa did your brother enter the US with? What evidences did he use to prove bonafide marriage?

[Lexlee08 18]

HI Myopia,

Thanks for the reply, he entered as a visitor(B1/B2). They have joint bank account, 3 bills with both their names. He is not included in the mortgage 'coz the house is under short-sale right now. They will call a lawyer today to consult.

[Lexlee08 18]

By the way, is it standard procedure to take the EAD and original I-94 away without approval or denial of the case? The Io took his EAD and I-94.

[Harpa Timsah 13,258]

By the way, is it standard procedure to take the EAD and original I-94 away without approval or denial of the case? The Io took his EAD and I-94.

That typically happens with approval. Though it sounds like this case will be denied because prior marriage not dissolved. Good luck.

[Myopia 93]

HI Myopia,

Thanks for the reply, he entered as a visitor(B1/B2). They have joint bank account, 3 bills with both their names. He is not included in the mortgage 'coz the house is under short-sale right now. They will call a lawyer today to consult.

Ok then thats not so bad. If the application is denied then he can still refile once the dissolution is finalized.USCIS had a memo last year that encouraged the districts to adjust those cases that were eligible to be adjusted even if the applicant was in removal proceedings. So worse case scenariro, your relative is denied and placed in removal proceedings...once the petitioner is able to file for him then he may be able to avoid removal. Please note that they will have to remarry again with a license etc because the initial marriage will be voided.

Edited February 15, 2011 by Myopia

[Deputy Purple 1,294]

What is "so bad" is that by the time they can re-file he'll likely be in removal proceedings already. This will raise the bar of evidence required to prove bona fide relationship.

While you can argue that they tried to get married & file prior to the removal proceedings it could just as easily be argued that the original filing was fraudulent as she wasn't free to marry and suspicious because she only filed to dissolve the domestic partnership 1 month prior to her marriage to the out of status alien.

This is a good example of an ounce of prevention being so much better than a pound of cure. Don't get me wrong, I'm not coming down on the OP or saying it's impossible just saying that you've got to acknowledge that the whole process just got a lot messier for them and they should get a professional on their side.

[JimVaPhuong 4,863]

Hi Jim,

Thanks for the reply. That is scary, I better tell them to seek legal counsel now. My sis-in-law filed thru the Courts as they did not meet the eligibility criteria to file thru the Secretary of State. Well, at any rate, they just need to figure out what happened to the dissolution, so that way they can re-marry and file again. Do they have to do anything with the NV marriage? Since, it's null and void, from the start then I guess they should not do anything else. Thanks for always giving intelligent and factual advice.

There's a mandatory six month period of separation required for a dissolution. That period of separation usually begins the day the petition is filed with the court. If they filed for the dissolution last September then the six months has not expired yet, which is why the dissolution hasn't been granted yet. It will also depend on whether they've resolved all issues related to the dissolution of the DP, including a property settlement. Like I said, the process is very much like a divorce.

The marriage is not "null and void". It is "voidable" because one of the parties was not free to marry. They're going to need a clean slate before they can begin again. I would recommend they consult with a family law attorney in Nevada and see about getting the marriage annulled.

If I were in their shoes, I wouldn't do anything about the marriage until USCIS denied the AOS. There is a faint chance USCIS might actually conclude the marriage was valid because it occurred in Nevada rather than California, and approve the AOS. There's no point in preemptively nuking the AOS petition until they're sure it's dead.

By the way, is it standard procedure to take the EAD and original I-94 away without approval or denial of the case? The Io took his EAD and I-94.

In this case, yes. Regardless of the outcome, neither of these documents are needed anymore. If they are approved (not likely, in my opinion) then the green card will supersede the EAD. If they are denied (likely, in my opinion) then the EAD should never have been approved. The I-94 expired long ago.

Ok then thats not so bad. If the application is denied then he can still refile once the dissolution is finalized.USCIS had a memo last year that encouraged the districts to adjust those cases that were eligible to be adjusted even if the applicant was in removal proceedings. So worse case scenariro, your relative is denied and placed in removal proceedings...once the petitioner is able to file for him then he may be able to avoid removal. Please note that they will have to remarry again with a license etc because the initial marriage will be voided.

Can you try to find a link to that memo? I'd like to read the details. This couple still has some issues to resolve before they can remarry and try again. If the IO denies and places him in removal proceedings before they can get the issues resolved then they will have no basis to appeal. If they manage to get things cleared up and marry after removal proceedings have begun then the INA still requires USCIS to presume the marriage is a sham. Ironically, the prior invalid marriage might actually work in their favor since it would help prove that they didn't marry just to avoid removal.

[Myopia 93]

What is "so bad" is that by the time they can re-file he'll likely be in removal proceedings already. This will raise the bar of evidence required to prove bona fide relationship.

While you can argue that they tried to get married & file prior to the removal proceedings it could just as easily be argued that the original filing was fraudulent as she wasn't free to marry and suspicious because she only filed to dissolve the domestic partnership 1 month prior to her marriage to the out of status alien.

This is a good example of an ounce of prevention being so much better than a pound of cure. Don't get me wrong, I'm not coming down on the OP or saying it's impossible just saying that you've got to acknowledge that the whole process just got a lot messier for them and they should get a professional on their side.

It is not as bad as if the applicant had entered on the VWP. Then he would have had no recourse at all. At this point they would need to scramble but it is not as bad as it could be. Saying that, I do agree with your observations about the circumstances related to the marriage but it is what it is.

I never suggested that they did not need a professional but at this point the ball has started rolling so there really is nothing else to do but prepare for the inevitable. The inevitable being a denial based on the I-130 due to the marriage being null and void.

[Myopia 93]

Can you try to find a link to that memo? I'd like to read the details. This couple still has some issues to resolve before they can remarry and try again. If the IO denies and places him in removal proceedings before they can get the issues resolved then they will have no basis to appeal. If they manage to get things cleared up and marry after removal proceedings have begun then the INA still requires USCIS to presume the marriage is a sham. Ironically, the prior invalid marriage might actually work in their favor since it would help prove that they didn't marry just to avoid removal.

Here is the link to the memo

Memo

If the couple were able to marry before being placed in proceedings then they would be eligible to have their case adjusted and the Assistant director of ICE has encouraged this in the memo.

This is shustermans take on it

Shusterman's Take

As far as the domestic partnership dissolution, they are subject to Californian law regardless of where they move so the marriage in Nevada was invalid and if USCIS approve the petition that would be a Hail Mary pass to the OP's relative indeed.

Why would they not have a basis to appeal. They can say that they married in good faith even though it was voided. If they are able to be legally married then they will be able to adjust and USCIS have directed the DO to do so. It is still discretionary.

Obviously it looks like they married in order to confer immigration benefits to the OP's relative but there may be information missing. If they faxed details of the dissolution then that would void this entire threads summations.

[Myopia 93]

Can you try to find a link to that memo? I'd like to read the details. This couple still has some issues to resolve before they can remarry and try again. If the IO denies and places him in removal proceedings before they can get the issues resolved then they will have no basis to appeal. If they manage to get things cleared up and marry after removal proceedings have begun then the INA still requires USCIS to presume the marriage is a sham. Ironically, the prior invalid marriage might actually work in their favor since it would help prove that they didn't marry just to avoid removal.

Here is the link to the memo

Memo

If the couple were able to marry before being placed in proceedings then they would be eligible to have their case adjusted and the Assistant director of ICE has encouraged this in the memo.

This is shustermans take on it

Shusterman's Take

As far as the domestic partnership dissolution, they are subject to Californian law regardless of where they move so the marriage in Nevada was invalid and if USCIS approve the petition that would be a Hail Mary pass to the OP's relative indeed.

Why would they not have a basis to appeal. They can say that they married in good faith even though it was voided. If they are able to be legally married then they will be able to adjust and USCIS have directed the DO to do so. It is still discretionary.

Obviously it looks like they married in order to confer immigration benefits to the OP's relative but there may be information missing. If they faxed details of the dissolution then that would void this entire threads summations.