Tuesday, August 15, 2017

Visa Overstay and Marriage Green Card

same sex marriage green cards
What if you just married someone from another country and then you find out they came to America as a tourist many years ago, but overstayed their visa?  Is there a chance that you can still help them get their immigration paperwork done?  It is very possible.

The immigration rules in the USA allow certain* spouses of a U.S. citizens to have their visa overstay excused. They must have proof that they entered the USA in some sort of legal visa status.

What if My Spouse Lost The Passport They Used to Enter the USA?

It still may be possible to get proof that your partner entered the USA legally.  The Dept. of Homeland Security has a form called I-102 that you can fill out (it is located at www.uscis.gov) and pay a fee to ask for copy of what is called an "I-94 Card" or "I-94 Entry Record" in order to try to get written proof of entry. The more information you can put on the I-102, the better chance of getting a copy of their I-94 records from the Dept. of Homeland Security.

Another source of entry records may be the airlines, if your spouse flew into an American airport. Most airlines keep a passenger list for a certain period of time and it may be possible to email the airlines and ask for verification of entry.  While that does not prove that your spouse entered the USA legally, it provides secondary evidence and it may provide enough information so that the Dept. of Homeland Security can find your spouse's records.

*Why Do You Say "Certain" Spouses of U.S. Citizens? 

Some spouses of U.S. citizens cannot get a marriage green card even if they have proof they entered the USA legally.  For example, if your spouse committed certain crimes they may not be eligible for a marriage green card.  This blog article does not cover all of the reasons that a spouse may not be eligible for a marriage green card.

Exactly Where is the Law that States that My Spouse's Visa Overstay Should Be Excused?

The law is found in the Immigration & Nationality Act in section §245(a).  The law says that your spouse, who is an applicant for a marriage green card, must have been “inspected” at the U.S. border (or airport) and formally admitted into the U.S. "Inspected" means that they walked through the immigration inspection line at the airport or at the border port of entry.

The applicant for a marriage green card must submit proof that they entered the United States with a valid passport and a valid visa with their marriage green card application. (Exceptions are made for visitors from certain visa waiver countries and Canada when no visa is required; for those situations see more detailed blog article - link is below.)

Therefore, if person enters the USA as a B2 tourist, or an E3 Australian professional, or an F-1 student, or many of the other visa categories (but not all), and they overstayed their visa, they may still be eligible for a marriage green card if they are married to a U.S. citizen and if they will have proof they entered the USA legally.

Acceptable proof of inspection (by the immigration officers at the airport) for adjustment of status purposes includes a copy of the ID page of the passport, a copy of the visa stamp (the sticker on one of the pages of the passport) used to enter the U.S., and a copy of the I-94 Card (or the new  I-94 download Entry Record).

Do We Have to Submit a Special Form For the Visa Overstay to be Excused?

No, the Immigration Officers are familiar with the law and no special forms are required.

Where Can I Find More Details About This Law?

https://immigrationworkvisa.wordpress.com/2013/12/06/marriage-green-card-after-visa-overstay/
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If you’d like to discuss your case, you can call (619) 235-8811 and ask to speak with Danielle Nelisse, an immigration attorney with 17 years of immigration marriage green card experience.  

If she is not at her desk, please leave a voicemail message and she will call you back.

She does not charge a fee to take your call and discuss whether your case would qualify.  If you qualify, she can provide you with a quote for how much it would cost to represent you no matter where you reside.

_______________________________________________________________________________


Call Danielle Nelisse at (619) 235-8811 in  San Diego, California if you want to discuss legal representation for your immigration case – there is no charge for a brief telephone call or email questions.

When you call the office, just ask to speak to Danielle Nelisse.
Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 to ask about your case at no charge.

SEND INQUIRY EMAIL:

danielle@immigrationworkvisa.com
_______________________________________________________________________________

Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?

Age Difference for Marriage Green Card? Sex Questions?

same sex marriage green card age difference
I have noticed that my same sex couple clients often have more of an age difference than my different sex couple clients.

I am not sure why, but because there is a 25 year difference between me and my spouse (and I sponsored him for a marriage green card years ago), I am probably more sensitive to this issue than most immigration attorneys.

Be Ready for Questions

What type of questions do the Immigration Officers ask if there is more than a 5-10 year age difference between spouses?  It depends.  Some Immigration Officers do not ask any questions pertaining to age because it seems they have already decided, based on your body language and circumstances, that you are really living together and really married despite the age difference.

The Immigration Officers I have encountered while representing clients at marriage green card interviews with couples who have more than a 5-10 year age difference tend to ask indirect questions about age differences, such as:
  • Does your spouse take any medication (assuming older spouses take medication and the younger one is relied upon to help with medication maintenance);
  • What do you and your spouse have in common? What do you do together for fun?
  • How did you meet?
  • How long have you been in an committed relationship?
  • Do you and your spouse have common friends? 
  • What do you like about your partner?
  • What do you dislike about your partner?
  • Why did you marry your spouse?
  • Do you have your spouse on your Facebook page?
  • Have you always been attracted to older (younger) people?
Real Life is Not a Movie

I have found that the Immigration Officers do not expect your life to be like a movie. Most couples are not spectacularly attractive.  Most people did not have a fantasy sky writing marriage proposal.  They probably asked each other to marry them during a commercial break while sitting on the couch. Or in the garage. Most people did not have a fantasy destination wedding.

Most people usually go to the local courthouse to get married.  Most people that the Immigration Officers interview do not have the money to express their love and devotion like the movie stars on television. There is probably no giant, expensive wedding ring - usually just a simple band.  My point is that the Immigration Officers are not allowed to judge couples based on their financial capacity to prove they are married. More than expensive gifts or weddings, they are interested in your day to day life because people who really live together, no matter what age, have to get normal every day things done like cook and clean and take out the trash.

 Let's Talk About Sex, Baby

So far my clients have not been asked about their sex life.  Not when they have it, how they have it, or where they have it.  But it is possible.

For example, one of my different sex clients was asked when was the last time he had sex with his wife, but that was because (I believe) he forgot some other crucial information (like where and when he met his wife).

My client frankly expressed his confusion about whether oral sex constituted having sex but eventually it ended up with an awkward moment followed by approval of the green card.

Some of my clients, due to age and disability, no longer have sex, but they are affectionate with their partner.  Some of my clients sleep in separate rooms due to all kinds of medical or psychological reasons.

The Dept. of Homeland Security is simply trying to figure out if you are really married or not -- and let's face it, not having sex and not sleeping together is what a lot of marriage couples end up doing.  It seems to me the government does a pretty good job trying to define what type of marriage you have without judging, but then again they are under a legal obligation to make a decision whether the marriage green card application was just a scam to help someone stay in the USA.

Please Talk About Age Difference and Sex Before the Marriage Green Card Interview

same sex marriage green card questions
I believe the best way to prepare for the marriage green card interview is to have a discussion with your partner before going to the interview regarding how you define your marriage, and develop a way to describe it in short sentences.

For example, if the immigration officer asks, "why don't you sleep in the same bed together?" you do not need to give your entire medical history and all the gory details.  It is ok to give a short abbreviated answer about your current medical condition and the other ways that you are affectionate with your partner.

Danielle Nelisse, Immigration Attorney
During your pre-interview discussion, be sure to discuss how you would describe your relationship in terms of love, affection and companionship.  What small niceties do you do for each other every day? What sweet nicknames do you call each other? What favorite foods do you cook for each other? What small gifts do you pick up for each other at the store? What do you do for each others' family members?  All of these gestures of kindness describe a loving, committed, married relationship.

Most couples I know whose age differences are more than 10 years like it that way.  Be prepared to discuss why this is so and what you like about being married to someone who is much older or younger than you.

If you are still anxious and uncertain about the marriage green card, why not hire an Immigration Attorney in your area to go with you?  The fee is usually $500 - $700 and the peace of mind? Priceless.
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Danielle Nelisse, Immigration Attorney                                         Email  
San Diego, California USA                                                             Blog                                  
Website
(619) 235-881 _______________________________________________________________________________

Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?

Worthy of a Marriage Green Card

I have recently noticed that some of my LGBT clients have an unexpected reaction to getting a marriage green card in the mail.  They look sad.  They look unhappy.  They tell me it is because they feel "unworthy."  What's wrong?  Why aren't they celebrating?

My clients explain to me that for many years they have been living in a straight world where often they are forced to lie, pretending to be something they're not, or to like something they don't, just to blend in with the heterosexual norm.

My clients explain to me they were taught the values of homophobic, heterosexist, discriminatory culture and religions, where they were exposed to negative ideas about homosexuality and same-sex attraction.

My clients explain that like everyone else, some LGBT people were socialized into thinking that being non-heterosexual is somehow “wrong” and how this has led to feelings of unworthiness.

My clients explain how for years, even though they were raised to be a devote Catholic, or a devote member of a different church, they were not accepted because they were gay.  The recent change, where they can get married, and simultaneously become legal is a change so intense, and so quick, that it is hard to process.
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They feel this way even though in 2015 the Supreme Court Justices have said this:

 “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

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They feel this way even though in 2015 President Obama addressed the Supreme Court decision supporting same sex marriage, calling it a "victory for America:"


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Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview? Call (619) 235-8811 or  Email her at danielle@immigrationworkvisa.com

Will Unequal Attractiveness Prevent Marriage Green Card Success?

same sex marriage green card
Recently an article published in the Onion caught my eye, as it dealt with the issue of "mixed attractiveness," a term I have not heard before.  The article was about a loving couple whose level of attractiveness did not match.

When couples call me to talk about whether one of them are eligible for a marriage green card or not, often times the issue of age disparity arises.  However, I have never had anyone ask the question, "What if my partner is much more attractive than I am?"

Perhaps it is easier to discuss disparities in terms in age rather than attractiveness.  When I am retained to work on a case, I ask for a color photo of the wedding ceremony and that is -- in many cases -- (since I often do not meet my clients in person) the first time I see the difference in not only their ages, but their attractiveness levels.

Do Heterosexual and Homosexual Partners Have the Same Age Gap?  No.

Facebook examined their accounts of people in relationships and they found that internationally, the average age gap between heterosexual partners is 2.4 years, with the male being older than the female.  But the age difference was significantly higher in same sex relationships, where the average age different averaged 9 years.

And it seems that the older we get, the bigger the age gap.  The Facebook study showed that older people were more likely to have a partner whose age differed significantly from their own than younger couples.


same sex marriage green card
There are so many theories for why May-December hookups do seem to be far more common in the LGBT community than elsewhere: a smaller pool of potential partners overall, more age-diverse social groups, the fact that how long you’ve been out can be similar even when actual years (how old you are) are not, a general removal from traditional heterosexual life patterns altogether, or just that queers as a group are more open-minded.

Usually when there is a large age difference there is also an "attractiveness difference. The Immigration Officers who conduct the marriage green card interviews are accustomed to seeing a 5-25 year age difference in the couples that appear before them, and therefore they are also accustomed to seeing couples with "mixed attractiveness."

Gay culture media highlights youth, muscle, and good looks as valuable when it comes to sexuality and relationships. All one has to do is turn the pages of your favorite gay newspaper or magazine (that doesn’t necessarily have to be sexual in nature) and you’ll be distracted by photographs and advertisements of attractive people.

What Do Immigration Officers Think About Mixed Attractiveness?

 I would hazard a guess that many Immigration Officers are probably straight and do not compare the "real life" couples they interview for marriage green cards with the glamorized gay and lesbian models reflected in the press.

From all my years of observing the couples that appear for marriage green card interviews inside the federal government's USCIS offices, the U.S. Citizens (straight or gay) that the Immigration Officer's interview every day, all day, come in all shapes and sizes: overweight, elderly, disabled and sometimes disheveled.

Their spouses probably look very different than them in terms of skin color, age, culture, income level, education, and language skills. Every once in a while a "beautifully matched' couple may appear, but that is not the norm in the real world.  More often than not, what impresses the Immigration Officers the most is whether the couple knows each other, respects each other, have activities they like to do in common, and have a strong emotional connection  - not whether they "match" in terms of looks.
__________________________________________________________________________

If you’d like to discuss your case, you can call (619) 235-8811 and ask to speak with Danielle Nelisse, an immigration attorney with 17 years of immigration marriage green card experience.  

If she is not at her desk, please leave a voicemail message and she will call you back.

She does not charge a fee to take your call and discuss whether your case would qualify.  If you qualify, she can provide you with a quote for how much it would cost to represent you no matter where you reside.

____________________________________________________________________________


Call Danielle Nelisse at (619) 235-8811 in  San Diego, California if you want to discuss legal representation for your immigration case – there is no charge for a brief telephone call or email questions.

When you call the office, just ask to speak to Danielle Nelisse.
Email danielle@immigrationworkvisa.com or call (619) 235-8811 or (877) 884-6644 to ask about your case at no charge.

SEND INQUIRY EMAIL:

danielle@immigrationworkvisa.com
_______________________________________________________________________________

Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?

Supreme Court Gay Marriage Decision

In the summer of 2015, the right of same-sex couples to legally marry expanded to all 50 states this morning in a historic Supreme Court decision. Such a wonderful decision!

Leading the majority 5-4 vote, Justice Anthony Kennedy — who has arguably progressed the gay rights cause more than any other American jurist — stated in closing that:

“it would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they … respect it so deeply that they seek to find its fulfillment for themselves. They ask for equal dignity in the eyes of the law.”

What Does This Mean for Marriage Green Card Processing?

The Dept. of Homeland Security has been granting marriage green cards based on same sex marriages for a couple of years now, even if the couple resided in a state that banned gay marriage.  They granted the marriage green cards for all same sex couples no matter where they lived, so long as their marriage was legal wherever it took place. 

Now couples do not have to go out of state to an equality state to get married. No more mandatory destination weddings!

How Long does Marriage Green Card Processing Take?

It takes about 6 months (sometimes less) from start to finish to obtain an approved marriage green card.  Sometimes travel out of the USA is restricted during processing, so it is good to talk to a professional before planning that honeymoon cruise!

Is the Green Card for Same Sex Couples Different?

No, it is the exact same green card as different sex couples receive.  If a couple is married for less than 2 years (even if they have been together for 10 years) the card is always issued for 2 years, but it can be renewed for 10 years.

Is the Marriage Green Card Interview Conducted Differently for Same Sex Couples?

Slightly.  Well, the rules are the same, but sometimes there are some different issues.  For example, if a same sex spouse was previously married in a different sex marriage there may be questions.  Or, if no one knows about the wedding because it would be dangerous or too controversial due to work or family, questions may arise.

What if I Have More Questions About Whether My Spouse Qualifies for a Marriage Green Card?

The best thing to do is to talk to an immigration attorney who has experience with marriage green cards for same sex couples.  Questions might be "How much does it cost?"  "What if my spouse is 20 years younger than me?"  "What if we kept our relationship a secret?" "What if we met online?" "What if we have no proof of our relationship?"  "What if we have an open relationship?" "What if my spouse overstayed their visa?"  "What if my spouse has a DUI?" "What if my spouse has children from a previous marriage?"

Feel free to call me at (619) 235-8811 to ask me questions about my experiences with same sex marriage green cards -- initial phone calls are not billed.

Danielle Nelisse, Immigration Attorney   |      Email

Other Immigration Questions Concerning Same Sex Married Couples:

_______________________________________________________________________________

Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?

Gay Marriage to B2 Tourist

Contemplating marriage to a foreign tourist? 

gay marriage green card
As those of us who have been "around the block" a few times know, when you finally meet the perfect partner there are very few obstacles that would stop us from being with them. What if your new found love is from a different country and needs a green card? 

Now that DOMA has been overturned, gay marriage is legal, and same sex marriage green cards are also legal. Binational gay marriages are more and more common. Whether you met at a gay bar, online, at a pride event, film festival, concert, or through friends, it is probably possible not only to marry, but to obtain a green card for your same sex partner. 

Things to consider:

1. Do you have a wide age range (over 15 years)?

Many couples, whether gay or straight, have age differences, usually between two and fifteen years. What if you are 20 years older than your partner?  It usually is not a problem, so long as you have activities that you both like to do together.  

2. Do you have religious differences?

In general, most couples have similar beliefs and values, even if they were raised according to different religious principles.  That is why they get along with each other.  Many people these days (67% of people who marry between 36 and 45) are in interfaith marriages. Each partner should have an understanding of the others' religious beliefs.

3. Do you have major cultural differences?

If cross cultural issues exist it can cause conflicts over differences in fundamental beliefs, differences in parenting styles, and even impact what is served for dinner.  Cultural differences are accepted if the couple have discussed their differences, understand and accept each others' differences, and can express ways that their differences make their relationship richer.

4. Were either of you married previously?

Well, first of all if you were married, your divorce would have to be legally finalized in order to get married again. What if the first marriage was to a different sex person? 

In cases of prior marriage to a different sex partner, you may be asked how/when you "came out," and when you made sexual identity decisions.  It doesn't matter what your answer is, but you should be able to talk about it.

5. Do either of you have children? 

If so, eventually a discussion about whether the children should know about your gay partner needs to happen. If the decision is made not to tell the children about the gay marriage (and the children live elsewhere), be prepared to explain why.

6. Does your foreign partner want to live the majority of the time in the USA for at least three years?

After being granted a marriage green card, foreign nationals are expected to reside inside the USA for the majority of each year (7 months or more would be good) for three years.  After that, if they are still married to a U.S. Citizen, they are allowed to ask for USA citizenship.  After they are granted USA citizenship, they do not have to reside inside the USA for any period of time in order to keep their USA passport.

7.  Did your foreign partner overstay his or her visa?

gay marriage green card
Current law allows a U.S. Citizen to marry a foreign national who has overstayed his/her visa and apply for their marriage green card (also called "permanent residence").  When they apply for "adjustment of status," the fact that the foreign national overstayed their visa (for any length of time) is excused. 

8. Did your foreign partner work without legal authorization?

Current law also excuses the fact that a foreign national worked without legal authorization when they marry a U.S. Citizen and apply for a marriage green card. 
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What if I have more questions about same sex marriage green cards?

Attorney Danielle Nelisse has successfully processed hundreds of marriage green cards over the last 15 years - it is one of her areas of specialty.

If you have questions you can call her at (619) 235-8811 or email her at danielle@immigrationworkvisa.com.  There is no charge for the first call or email.
_______________________________________________________________________________

Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?

Marriage Green Card Interview Different Rules?

It is good to know ahead of time that part of the marriage green card processing involves getting interviewed by an Immigration Officer at your local immigration office.

If you didn't hire an Immigration Attorney to help prepare your adjustment of status application, you may want to consider hiring an Immigration Attorney to go with you both to the marriage green card interview.  

One way to find an attorney experienced with same sex marriage green card interviews is to check the attorney listings on your local  LGBT Business Directory.  Most LGBT business organizations, such as the one I belong to, have added an "immigration attorney" category to help you locate the type of attorneys who specialize in immigration law.

Whether you already have an attorney retained, or you hire one just for the interview, the attorney should either meet you at their office or schedule a long (usually at least 45 minutes) teleconference to discuss what will occur at the marriage green card interview.

Even though the marriage green card interviews are conducted by Immigration Officers all over the USA, they are conducted in the same manner.  It seems all of the Immigration Officers had the exact same training.  They have been carefully instructed to handle same sex marriage green card cases the same way as different sex marriage green card cases.

However, as an attorney who has been present during many interviews, I have noticed some differences in these areas of questioning:
  • Previous marriages to a different sex partner;
  • Bi-sexual history; 
  • Whether each partner has come out yet at work or to family;
  • Unusual financial arrangements;
  • Inability to tell certain (or any) family members about marriage;
  • Traveling by one partner without the other; 
  • Examination of Facebook accounts;
  • Open non-exclusive relationships;
  • Decisions about children;
  • Lack of photographs showing participation in traditional holidays; or,
  • Lack of witnesses at the wedding ceremony.
Danielle Nelisse, Immigration Attorney
A good immigration attorney with a lot of marriage green card interview experience should be able to take a good look at your case (each and every one is different!) and in a caring manner discuss any sensitive areas of questioning before you go to the marriage green card interview.  It is all part of helping your partner adjust to how business is conducted in America.

Our goal is to try our best to predict the areas of questioning you may face so that we feel prepared.  Our goal is success!

Danielle Nelisse can be reached via email at danielle@immigrationworkvisa.com or at (619) 235-8811 during her office hours.

www.daniellenelisse.com
_______________________________________________________________________________

Other Immigration Questions Concerning Same Sex Married Couples:

What are the issues if my gay spouse entered the USA as a B-2 Tourist ?

Exactly what happens at a marriage green card interview?

How does a person get married in the USA? 

Tips on how to help your helping your partner adjust to America during the Adjustment of Status process.

What if my spouse entered the USA legally, but overstayed their visa?

What if my spouse is HIV positive?

Is “coming out” important to the Immigration Officer who conducts the marriage green card interview?