Thursday, October 2, 2014

Verifying the immigration status of the person you plan to marry


Husband to wife: “Um, I actually don’t have legal status here in the U.S.”

These probable words led that wife to hire me for her divorce. They had gotten married a few years earlier, with a joyous and elaborate church ceremony, after a period of courtship. She had been in H-1B status and he had said that he had F-1 status. Later, after a few years of marriage, she began to apply for a green card, and needed evidence of her husband’s status. When, after numerous requests, she failed to get that evidence, she finally confronted her husband and learned the truth.  

This woman erred in failing to confirm the man’s status before marrying him. If you are in the same situation—that is, you are in a non-immigrant status and you are seeking to marry someone, this woman’s situation has lessons for you. In this blog post, I will discuss ways to confirm someone’s status, unromantic though it may be. In future blog posts, I will discuss the issue of verifying a person’s assets and marital status, and the importance of preserving evidence of a good-faith marriage.

The most important aspect of any marriage between people who are not both U.S. citizens is that the marriage be bona fide. That is, purpose of the marriage cannot be to evade U.S. immigration laws. Entering into a fraudulent marriage can carry severe penalties, including removal from the United States and, for a naturalized U.S. citizen, the loss of citizenship.
Assuming, therefore, that your intended or possible marriage is bona fide, you still might want to verify the other person’s status. Below are ways to do so.

U.S. citizen

A person who is a U.S. citizen might be able to show any of the following evidence of such citizenship:
-          A U.S. passport
-          A certificate of citizenship
-          A naturalization certificate
-          A birth certificate that shows a birth within the United States

Someone could have been born outside the U.S. and have a certificate of citizenship, but not have a naturalization certificate. U.S. immigration law provides that such people can become citizens once certain conditions are met, that is, via operation of law. Such persons therefore are not required to be naturalized.

Generally speaking, persons born in the U.S. receive U.S. citizenship at birth. A U.S. citizen is not required to have a passport.

Permanent resident

A permanent resident will have a green card. In addition, that person might have an immigrant visa stamp in his or her passport.

Non-immigrant classifications

Someone admitted in a non-immigrant classification will have a form I-94. If the classification involves admittance for a specific period of time, then the I-94 will show such an “admitted until” date. Other classifications, including F-1 and J-1, involve admittance for “duration of status.” That is, the person is lawfully present in the U.S. so long as that person maintains the conditions of that status. Persons in F-1 or J-1 are supposed to have a current I-20 or DS-2019 form, respectively.

I never met the ex-husband of my divorce client. By the time she came to me, she already had kicked him out of their home and he already had returned to his own country. However, I suspect that that person might actually have been in F-1 status at some point, but then may have stopped his studies while remaining in the U.S. In such a case, his I-94 would not have shown his lack of status. Rather, he would have been unable to show a current I-20 to my client.
I hope you, unlike my client, do not face the same shocking revelation.


[PS I still remember one of my first meetings with this client. After we sat down, I looked at her. She looked at me. We both started laughing.] 

The above information does not constitute legal advice and does not form an attorney-client relationship.

Calvin Sun, 215-983-3723, 610-296-3947, csun@calvinsun.com









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