AOS Interview at Sacramento,CA

[Brother Hesekiel 2,236]

Another point that's important: if your brother worked here in the US for 10 years, he had to file a yearly tax return. It is true that working without authorization is not being made an issue of at AOS, but being guilty of tax evasion, a felony, is not. So if your brother has not filed income tax returns, it's better late than never.

[Lexlee08 18]

Thanks everyone for your insights. Fortunately my brother has been filing income tax using his valid ITIN, so at least that will not be a problem. My sis-in-law went to the courthouse today to clarify the whole dissolution issue, she was given a court appearance day of March 14, to finalize everything, she was advised by the help-desk at the court that this will be the final step in the whole dissolution proceedings. They did marry in good faith all this time my sis-in-law never thought that this is an issue as she thinks that domestic partnership is just a piece of paper that they signed with the secretary of state and it's not "marriage". She and her ex were separated for awhile and the only reason why she filed the dissolution is to put a closure to her"bitter past" and never really thought much of it.

I did call the county in NV where they got married to check what they needed to do and the clerk told me that if the dissolution is not finalized then their marriage is null and void, and since it is null and void from the start then they don't have to file for anything. I even reiterated to the clerk if they need to file for an annulment I was advised that they do not need to file for it.

They have been really happy with everything that has been going on with their lives until this happened. Everything was very smooth sailing, I helped them put the whole I-130/I-485 package(thanks to the VJ guide). We filed their package Nov. 18,2010 we had it overnight delivered, so his receipt date was Nov. 19,2010(my sis-in-law's b-day), he had his biometrics 1/3/2011, he got his EAD 2/4/11, he applied for SSN 2/9/11, had his AOS interview yesterday 2/14/11 and he got his SSN yesterday too. My sis-in-law also filed a separate I-130 last Nov. 22,2010 for my niece(my brother's daughter) who is living with my parents in the Philippines.

So worse scenario will be the removal proceedings, how soon will that happen? How does it happen? Will they just arrest him or will they give him a time-frame? I just feel bad for both of them, they wanna start a fresh and new life together and this happens, of course they should have done it right the first place. They have been doing things themselves as they are living paycheck to paycheck. I just pray that they give them enough time to have the dissolution finalized and re-marry and file again.

[JimVaPhuong 4,863]

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

The second link is to an ICE copy of the same memorandum. It's not important, but I'd be interested to read what Shusterman has to say about it.

Anyway, the memo doesn't say what you originally indicated. You said USCIS had issued a memo that encouraged field offices to adjust eligible cases, even if they were in removal proceedings. The memo you linked to is from the director of ICE - not USCIS - and it instructs ICE to request USCIS to expedite cases where a petition has been filed that would provide relief from removal, and affirms USCIS' policy that it will expedite adjudication of cases where an alien is in removal - 30 days or better if the alien is in custody, and 45 days or better if not. This memo doesn't in any way suggest that USCIS is going to be more inclined to approve the case.

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.

Each state has it's own marriage laws. While a state will generally recognize most marriages lawfully entered into in another state, domestic partnership is not "marriage". In fact, it is often referred to as a "quasi marriage". It conveys many of the same benefits as marriage, but without the title of "marriage". No state is required to recognize a quasi marriage entered into in another state, nor to extend the same benefits and protections that another state would extend. The distinction is especially important in Nevada because they banned same sex marriage by constitutional amendment in 2002, but approved domestic partnerships in 2009.

Nevada does allow for domestic partnerships, and their law was patterned after California law. However, Nevada will not recognize a domestic partnership entered into in another state unless that domestic partnership is registered in Nevada. This leaves the OP's brother in the precarious position that his marriage may be valid under Nevada law, but not under California law, where he lives and where his AOS is being adjudicated.

http://www.leg.state.nv.us/NRS/NRS-122A.html

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.

If it's denied on the basis that no valid marital relationship exists then the only path for appeal would be to prove that the marriage was valid. That would be rather difficult since the facts would not have changed. You can't appeal on the basis of "good faith marriage" if you were, in fact, never legally married.

I did call the county in NV where they got married to check what they needed to do and the clerk told me that if the dissolution is not finalized then their marriage is null and void, and since it is null and void from the start then they don't have to file for anything. I even reiterated to the clerk if they need to file for an annulment I was advised that they do not need to file for it.

Please consult with a family law attorney in Nevada before taking what the court clerk says at face value. The marriage is registered in the state of Nevada. At this point in time, there is nothing in the state or county records to indicate otherwise. If someone were to try to confirm with the state whether a marriage exists between them, the state would probably confirm it.

My personal opinion is that the court clerk is only partially correct. If someone were to challenge the marriage on the basis of the unterminated domestic partnership in California then a court in Nevada may indeed determine that the marriage is invalid. However, until someone actually DOES this, then the marriage remains on the books. This is why I previously said the marriage is "voidable", but not automatically "null and void". The records need to be corrected.

So worse scenario will be the removal proceedings, how soon will that happen? How does it happen? Will they just arrest him or will they give him a time-frame? I just feel bad for both of them, they wanna start a fresh and new life together and this happens, of course they should have done it right the first place. They have been doing things themselves as they are living paycheck to paycheck. I just pray that they give them enough time to have the dissolution finalized and re-marry and file again.

When an AOS is denied they will usually allow 30 days for a petition to reopen the case; i.e., an appeal. If they initiate removal proceedings then it will begin immediately after the 30 days have expired. It's possible they will take him into custody. It's also possible they would simply send him a summons to appear in immigration court for a master hearing.

[Lexlee08 18]

Jim, you are awesome, thanks for the reply, indeed very informative, you are right on! I will keep you guys posted on what will happen. THANKS Again!

[Myopia 93]

Anyway, the memo doesn't say what you originally indicated. You said USCIS had issued a memo that encouraged field offices to adjust eligible cases, even if they were in removal proceedings. The memo you linked to is from the director of ICE - not USCIS - and it instructs ICE to request USCIS to expedite cases where a petition has been filed that would provide relief from removal, and affirms USCIS' policy that it will expedite adjudication of cases where an alien is in removal - 30 days or better if the alien is in custody, and 45 days or better if not. This memo doesn't in any way suggest that USCIS is going to be more inclined to approve the case.

You're are right. I mixed ICE and USCIS up.In any event here is how Shusterman interpreted the memo Shustermans Take

ICE doesnt make policy for USCIS. USCIS doesnt make policy for ICE but they can both work in partnership together. Partnership being the operative word. The memo was very clear in what it was requesting of USCIS and it was also just as clear as to how USCIS would go forward with this request.

The initial memo said:

Close coordination and communication between the ICE Offices of Chief Counsel (OCC) and USCIS will ensure that all applications and petitions are adjudicated quickly to realize our shared goal of efficiently resolving cases in removal proceedings.

What do you think close coordination and communication mean?

I am sure that the word, "request", was just a way of stating something factual without sounding too authoritative. ICE can't direct anyone but ICE but if they are working in partnership then to request something already agreed in a policy memo makes sense.

Anyways, Jim, heres the USCIS memo :

USCIS Guidance on Subject

This policy memorandum applies to and is binding on all USCIS employees unless specifically exempt.

Upon notification from ICE that an application or petition pending with USCIS for an individual in removal proceedings must be adjudicated to allow the removal case to move forward, each USCIS field office will endeavor to complete action on the relevant petition or application within 30 calendar days of receiving the necessary A-file(s) if the individual is detained and within 45 calendar days of receiving the A-file(s) if the individual is not detained. If the next hearing in the removal case is scheduled within the 30- or 45-day time frame, USCIS will work with ICE, to the extent possible, to

complete action on the petition or application before the hearing date. Field offices will maintain communication with ICE regarding the progress and status of the case.

Sounds like direction to me.I never said that USCIS would be more inclined to adjust any cases.I said that they would be eligible. I said that ICE encourage the adjustments.

Bear in mind they are trying to reduce the backlogs when it comes to deportations.

Each state has it's own marriage laws. While a state will generally recognize most marriages lawfully entered into in another state, domestic partnership is not "marriage". In fact, it is often referred to as a "quasi marriage". It conveys many of the same benefits as marriage, but without the title of "marriage". No state is required to recognize a quasi marriage entered into in another state, nor to extend the same benefits and protections that another state would extend. The distinction is especially important in Nevada because they banned same sex marriage by constitutional amendment in 2002, but approved domestic partnerships in 2009.

Nevada does allow for domestic partnerships, and their law was patterned after California law. However, Nevada will not recognize a domestic partnership entered into in another state unless that domestic partnership is registered in Nevada. This leaves the OP's brother in the precarious position that his marriage may be valid under Nevada law, but not under California law, where he lives and where his AOS is being adjudicated.

http://www.leg.state.nv.us/NRS/NRS-122A.html

I was referring to Californian law. When two people take a domestic partnership agreement in California then they also agree to be subject to that law outside of California.That is how the Californian law reads. That would mean that the Nevada marriage doesn't legally exist even if it is on the books as being so. Do they have to legally dissolve the marriage in Nevaa when its invalid? According to the state of Nevada they don't have to.

A marriage performed in Nevada is "void," automatically, on either of two conditions: that the parties are related by blood any closer than second cousins; or if either party has a "a former husband or wife then living." If a marriage is void for one of these reasons, no decree of annulment or other legal proceeding is required to dissolve it. Nevertheless, parties in such circumstances often want a piece of paper declaring that the marriage was a non-marriage, and the court may make a "declaration of nullity of a void marriage" if asked to do so. Invalidation of a marriage on the grounds of bigamy "does not bar" prosecution for the crime of bigamy.

As for them appealing a removal. If they remarry as soon as they have the legal dissolution and resubmit the I-130 then they wont have to prove anything other than they are now married.If the IO was so inclined and there were no pertinent factors that prevented the adjustment than they could be adjusted.

Ill just throw this in too. It's just some extra reading

Media Matters Article.

To the OP, Sorry if I confused your thread with extraneous matters but this stuff is important for your family member. At the end of the day this is just a forum with people who want to help but our advise may not be right so a qualified attorney is always a good place to start especially in a situation where denial may be imminent.

Edited February 16, 2011 by Myopia

[JimVaPhuong 4,863]

You're are right. I mixed ICE and USCIS up.In any event here is how Shusterman interpreted the memo Shustermans Take

ICE doesnt make policy for USCIS. USCIS doesnt make policy for ICE but they can both work in partnership together. Partnership being the operative word. The memo was very clear in what it was requesting of USCIS and it was also just as clear as to how USCIS would go forward with this request.

The initial memo said:

What do you think close coordination and communication mean?

I am sure that the word, "request", was just a way of stating something factual without sounding too authoritative. ICE can't direct anyone but ICE but if they are working in partnership then to request something already agreed in a policy memo makes sense.

Anyways, Jim, heres the USCIS memo :

USCIS Guidance on Subject

Sounds like direction to me.I never said that USCIS would be more inclined to adjust any cases.I said that they would be eligible. I said that ICE encourage the adjustments.

Bear in mind they are trying to reduce the backlogs when it comes to deportations.

ICE isn't encouraging that the adjustment be granted. They are asking USCIS to "poop or get off the pot", so to speak. The pending AOS petition is standing in the way of moving forward with the removal case, and this is causing a backlog of people waiting for their removal cases to be decided. USCIS is directing their field offices to try to adjudicate these cases as quickly as possible, within the 30/45 day guidelines if possible, in order to help ICE clear the backlog. The USCIS memo is also clear that field offices are not to change the way that they adjudicate those cases. They are only to try to adjudicate them more quickly:

USCIS will adjudicate all applications and petitions subject to this memorandum according to existing laws, regulations, and USCIS policy, including as they pertain to USCIS’s fraud detection and national security responsibilities.3 If acting on ICE’s request to adjudicate a particular application or petition might compromise those responsibilities or adherence to any law, regulation, or policy, USCIS will notify ICE that the adjudication will not be completed within the 30- or 45-day time frame and will keep ICE further apprised about the status of the case.

I was referring to Californian law. When two people take a domestic partnership agreement in California then they also agree to be subject to that law outside of California.That is how the Californian law reads. That would mean that the Nevada marriage doesn't legally exist even if it is on the books as being so. Do they have to legally dissolve the marriage in Nevaa when its invalid? According to the state of Nevada they don't have to.

No state requires a formal decree be issued in that state in order to void or terminate a marriage granted in that state. If any state did require this then it would be much more difficult to marry in one state and divorce in another - you'd need divorce certificates from both states. As long as you've got a certificate issued in any state then the marriage is usually considered terminated in all states.

The commentary you pointed out is stating that it's not necessary to obtain a certificate declaring the marriage void because the circumstances make the marriage void. I don't dispute that, but lacking a certificate certifying that to be the case then someone who is not in a position to issue a decision based on Nevada law is going to be free to conclude that the marriage is still viable. If, for example, you wanted to apply for a marriage certificate in another state then you would be required to sign a statement declaring that all previous marriages were legally terminated. You wouldn't need a certificate from the State of Nevada in order to legally sign that statement. However, if you were in a courtroom facing a divorce proceeding based on that marriage then you'd need evidence to counter the marriage certificate and prove that the marriage was void. The judge would look at the evidence and make a decision based on it. An IO isn't going to try to interpret Nevada family law in order to make that determination. As the commentary indicates, there are times when someone will want a declaration of nullity from a family court judge. I think this is one of those cases.

As for them appealing a removal. If they remarry as soon as they have the legal dissolution and resubmit the I-130 then they wont have to prove anything other than they are now married.If the IO was so inclined and there were no pertinent factors that prevented the adjustment than they could be adjusted.

Yes, but that's not an appeal. That's a new petition. There would be no basis to appeal the original petition.

[Myopia 93]

We really digressed with this and went seriously

I mentioned this memo for the OP's benefit not for an extended debate on wording or motive.

He should not think that denial will be the end of the Immigration journey for him. He can put another application in that will be valid once he is legally married and USCIS will look at it as the situation that caused him (hypothetically) to be denied will have be resolved.

The only reason he will be denied is because he has an invalid marriage. So once he marries his wife again he will be able to file again and even if he is in removal proceedings and/or in detention; USCIS CAN adjust his case again.

Of course they dont have to but it is what is is.

That was my point.

The OP wont get a letter of annullment and if he is denied based on the invalidity of the subsequent marriage in Nevada...he wont need a letter from the judge as USCIS will have already decided that the marriage was invalid in the first place.

Appeals. New Petition. You get my point.

Khalass.

Edited February 16, 2011 by Myopia

[Lexlee08 18]

Thanks Myopia and Jim, very informative and I appreciate it!

[Lexlee08 18]

Hi everyone,

Just an update on my brother's case, they received the denial letter yesterday and they had a consultation with the immigration attorney as well. The lawyer told them that she knows the immigration officer that did their interview and she has a reputation of being "tough and harsh". My sis-in-law also has an appointment with the the court for a hearing to get default judgement (scheduled for Mar.14). She is planning to go to the court today to request if she can expedite the hearing sooner than the 14th. The lawyer is charging them 3k and if they have to go to a hearing it could go up to 5k. She advised them to get married sooner and also to make sure that when they got married they they are more "prepared" i.e. better dressed, with family, and get married locally as Reno,NV weddings have a bad rep with the IOs.

I am hoping that they can get this resolved sooner.

[Myopia 93]

Hi everyone,

Just an update on my brother's case, they received the denial letter yesterday and they had a consultation with the immigration attorney as well. The lawyer told them that she knows the immigration officer that did their interview and she has a reputation of being "tough and harsh". My sis-in-law also has an appointment with the the court for a hearing to get default judgement (scheduled for Mar.14). She is planning to go to the court today to request if she can expedite the hearing sooner than the 14th. The lawyer is charging them 3k and if they have to go to a hearing it could go up to 5k. She advised them to get married sooner and also to make sure that when they got married they they are more "prepared" i.e. better dressed, with family, and get married locally as Reno,NV weddings have a bad rep with the IOs.

I am hoping that they can get this resolved sooner.

In this case you can't even fault the Immigration Officer. She was doing her job and there was nothing to do but denial.

All the best.

[Lexlee08 18]

Hi Myopia,

We know and we just need to move forward and do the "right" thing.