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5 Pitfalls to Avoid in a Marriage-Based Immigrant Petition

by Sherrod Seward, Partner, Queen City Immigration Law, 704-500-2075

A marriage-based immigrant petition is one of the most commonly used methods of obtaining a lawful permanent resident (“LPR”) status in the United States. Lately, Queen City Immigration Law has been honored to receive an increased interest in these types of petitions from our clients. However, the popularity of these spousal green card cases has also given rise to some basic misconceptions and mistakes that are often overlooked or ignored, resulting in frequent denials by USCIS. Our attorneys have identified some of the more common misconceptions during the marriage-based immigration process below.

1. BONA FIDE MARRIAGE REQUIREMENT

A marriage-based green card petition will be denied if USCIS is not convinced that the marriage between the petitioner and the foreign spouse is real. USCIS is on high alert for marriage fraud and will seek to find holes in the love stories of petitioners. It is important to take the process seriously and be prepared to give details. If a marriage is determined by USCIS to be a fraud, the foreign national may be permanently barred from migrating to the United States.

2. PROVIDING PROPER DOCUMENTATION

It is not only imperative that the underlying marriage be valid and real, but also properly documented. There are instances when petitions are denied when it is discovered that one of the spouses is still married to someone else. It is necessary that any previous marriage be officially terminated. USCIS will need official documentation from the appropriate authority that the divorce is finalized.

3. FAILURE TO MAINTAIN LAWFUL NONIMMIGRANT STATUS

If the foreign spouse entered the United States without inspection and admission or remained in the United States after expiration of their authorized period of stay, he or she has failed to continuously maintain lawful nonimmigrant status. In general, an applicant for LPR status may not obtain a green card unless their stay in the United States has at all times been lawful. Such person will usually need to leave the United States and apply for an immigrant visa at a consular post in their home country. However, leaving the United States after accruing a period of unauthorized period of stay might result in a lengthy ban from coming back to the United States, ranging from 3 to 10 years.

4. CRIMINAL RECORD

There are certain convictions that will make the U.S. citizen or LPR petitioner ineligible to file a green card petition for his or her spouse. Similarly, the foreign spouse might also become ineligible to obtain a green card if they have been convicted of some specified crimes, whether in the United States or abroad. It is important to have your criminal record examined by a competent attorney in order to obtain an assessment if the conviction will hinder the petition. Depending on the crime convicted of, a skilled immigration attorney can help apply for a waiver to remove the impediment. Even if a conviction is expunged or given lenient treatment under a first offender statute, it is still necessary to let your attorney know prior to filing the petition.

5. AFFIDAVIT OF SUPPORT REQUIREMENT

The Affidavit of Support is a pledge from the petitioner-spouse to the government to financially support the foreign spouse for a period of time and prevent him or her from becoming a public charge. It is not uncommon for petitioners to overlook the importance of the Affidavit of Support and fail to present documentation to prove access to sufficient income and funds. Typically, the Affidavit of Support will require documents such as tax returns and employment verification.

The list above only represents some of the more commonly encountered problems with spousal petitions for LPR status. A consultation with an immigration attorney is recommended for most cases to avoid the pitfalls and prevent a denial by USCIS. If you require further information on the details and nuances of a marriage-based petition, please do not hesitate to contact Queen City Immigration Law at 704-500-2075 for a consultation.