QUESTION
Can my aunts children file for removal on her behalf?
Asked on Oct 01st, 2011 on Immigration - New York
More details to this question:
My aunt's removal of condition was denied because the immigration think that their marriage was fraud. They are not together anymore and now she met another guy so she filed a divorce to her ex husband. Does USCIS give her a green card to her next marriage? My aunt has two children and they are over 21. Can they file removal of condition and get approved even though their mom was denied?
7 ANSWERS
Immigration and Naturalization Attorney serving San Diego, CA
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Feldman Feldman & Associates, PC
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1) You need to have competent counsel talk to your aunt to review her denial of her removal. There is a difference between not showing enough evidence to prove good faith marriage and having USCIS determine the marriage was in fact fraudulent. If the latter she will be put in removal proceedings and can renew her application there. She needs to pull together everything she can to show her first marriage was not done just to get immigration papers. Marrying someone else does not cure the fraud as fraud prevents her obtaining permanent residency through not only her first marriage but almost any other avenue. 2) With regard to the children of your aunt there does not appear to be uniformity in how they are treated when USCIS believes the primary marriage is fraudulent. The facts and duration of your aunt's relationship to her spouse will be critical to both cases.
Answered on Oct 10th, 2011 at 12:44 PM
No. In fact, she can no longer adjust status with a new US Citizen spouse. The finding of fraud can have permanent damage on her immigration rights unless she proves that she entered the first marriage based upon a good faith relationship that resulted in marriage. She and her children must file new or a renewed self petition based upon the first marriage. I strongly recommend that she hire a competent and experienced immigration attorney. This is a complicated case.
Answered on Oct 08th, 2011 at 12:47 AM
Intellectual Property Attorney serving Menlo Park, CA
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Sheppard Mullin
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They will not grant her new application if it believes her previous marriage is for immigration only. She may be eligible to apply for waiver, though (so do her children). Please consult an immigration lawyer for details.
Answered on Oct 07th, 2011 at 11:44 PM
LCA Audits and Investigations Attorney serving Houston, TX
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Fong Ilagan
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No, she needs to appeal the decision. The next petition will be denied if she has been determined to have engaged in marriage fraud.
Answered on Oct 07th, 2011 at 5:47 PM
Immigration & Naturalization Attorney serving Seattle, WA
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Julian & Chin, LLP
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The denial of your aunt's I-751 petition to remove conditional status by CIS will led to removal proceedings before an Immigration Judge. The question before the Judge will be whether she had a bone fide relationship with her ex-husband or if she qualifies under other exceptions. If the Judge does not believe that your aunt qualifies for waiver and there is no issue of marriage fraud raised, then your aunt may be eligible for adjustment of status based upon her US Citizen child's petition. Of course, there are many other factors that will determine if this route is necessary or possible.
Answered on Oct 07th, 2011 at 5:16 PM
Criminal Defense Attorney serving New York, NY
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Law Offices of Nicklaus Misiti, PLLC
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It depends upon if the marriage was truly found to be a fraud. If it was then your aunt will be barred for life from adjusting status. Your aunt should speak with and retain an immigration attorney to review her case.
Answered on Oct 07th, 2011 at 5:14 PM
Immigration and Naturalization Attorney serving San Francisco, CA
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The Law Office of Christine Troy
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If DHS makes an actual fraud determination, as opposed to denying on other grounds, she is not allowed to file for a green card via the second marriage. It is my understanding that she is actually barred from obtaining a green card via any avenue at all, except perhaps the U visa.
Answered on Oct 07th, 2011 at 5:14 PM