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The Golden Door

News and views on immigration law

Archive for the ‘Family-based immigration’ Category

Same-sex marriage cases post-Windsor

Thursday, August 1st, 2013

You may not have heard, but an important change in immigration law happened on June 26, 2013.  On this date, the U.S. Supreme Court handed down its decision in U.S. v. WindsorThe Windsor case came up as a tax matter.  But Windsor isn’t just about taxes, although over $300,000 in federal estate taxes was at stake.  It was about the legal definition of marriage.  It was about whether a same-sex marriage can be treated differently than marriage between two people of the opposite sex.  Ultimately, the Supreme Court held that defining marriage as a union between a man and a woman violated the equal protection clause of the Fifth Amendment to the U.S. Constitution, and in doing so struck down Section 3 of the Defense of Marriage Act (“DOMA”).

This leaves the path clear for same-sex marriages to be (among many other things affected by federal law) the basis for immigration benefits, especially marriage-based immigrant visas and marriage-based adjustment of status applications.

The U.S. Citizenship and Immigration Services has, in an admirably prompt fashion, already gone on record as now accepting I-130 petitions from same-sex couples.  You can check out the guidance here.

The main thing you need to know if you want to file a petition for immigration benefits based on a same-sex marriage is that the marriage must be legally valid.  This means that the marriage must have been performed in a jurisdiction that allowed same-sex marriage at the time of the event.  This is sometimes referred to as the “place of celebration” rule.  It should not matter if you no longer live in that jurisdiction and currently live with your spouse in a place that does not legally permit same-sex marriage.

A legally valid marriage must be documented, whether by a certificate of marriage issued by a county government as is usually the case in the United States, or whatever is accepted as legal documentation of marriage in the place where it occurred.  For marriages abroad, a good place to check what documentation is considered legally sufficient are the websites for local U.S. embassies and consulates.  There is usually information for U.S. citizens interested in marrying in that foreign country, including what documents should be issued once the marriage is done.

So, for all those who thought they could not file for immigration benefits for their same-sex partners, the law has changed for the better!  If you need more help, advice, or representation in filing your application, contact Tran Law Associates about how to get your case started.

Eulogy for my Dad

Tuesday, July 16th, 2013

My father died recently.  Below is the eulogy I delivered at his funeral.  I wrote about him last year, a few months after it was clear that he was terminally ill:  see The Spirit of the Immigrant.  This, I guess, is the coda to that piece.


My dad is gone. I was wondering if it would be any less painful if dad died at a later age, after a very full and complete life? Maybe. I think part of the grief I feel is because dad was so vigorous and full of life before he got sick. His cancer robbed him of that vitality long before it took his life.

Dad was always there for us, opinionated, always ready to help, playful and grouchy in quick succession (like me, like my son). His love for his family, although almost never said in words, came through loud and clear in his actions. His last thoughts were what he could do to make sure my mother, my brother, my son, and I were taken care of. His last instructions to us were that we love and take care of each other.

It was sometimes hard to know, because dad rarely spoke about his own feelings, when he was proud of us or when he was disappointed. But in the end, I don’t think it really matters. He loved us, his children, whether we succeeded or failed in our endeavors.

As my mother has said in the days since his death, you cannot take any of your possessions with you when you go. What dad leaves behind are our memories – all of our memories – of a hard-working man who was always there for his family and friends. I have never known him to let anyone down, and I will miss his laughter, his bright smile, his stories that poked gentle fun at people, how he never complained about how unfair life can be, his strength of will, and his unconditional love.

Dad would want to thank many of his family and friends for their love and support over his lifetime, but particularly, since he became sick, I know that he would want to give special thanks to his good friends, Bac Bao and Bac Nhung, Di Ngoc Ha and Bac Chuong, and Bac Chan and Bac Thanh, and Bac Dich and Di Bich-Ngoc for caring for him in his time of need. Thank you for being good friends to my dad.

May his journey continue in peace and the knowledge that he is loved and deeply missed. Con tuong ba va nho ba nhieu.

Fraud or misrepresentation – a small mistake can derail a case

Friday, March 29th, 2013

I recently finished an adjustment of status case which should have been straight-forward.  It involved an elderly couple, both originally from Jamaica.  They had been married for decades, then divorced after wife moved to the United States and they grew apart.  She re-married, to a U.S. citizen, and got her permanent resident status and then her U.S. citizenship.  Her second marriage ended several years later, and several years after that she and her first husband grew close again and re-married.  She then applied for him to obtain his permanent resident status.

They were represented by prior counsel.  Everything seemed fine until they attended the adjustment of status interview.  At the interview, the officer asked about husband’s tourist visa application from 10 years ago.  Apparently, husband, who was recently divorced from wife at that time, had checked the “married” rather than the “divorced” box.  This was deemed by USCIS to be a fraud or misrepresentation and the adjustment of status application was denied.

“Fraud” or “misrepresentation” are words that you do not want to hear from USCIS.  They are definitely a sign that your application is in trouble, because it makes you inadmissible and/or deportable.  Luckily, “fraud” or “misrepresentation” are not as adverse a bar to obtaining immigration benefits as a false claim of U.S. citizenship, which is an immutable (non-waivable) bar unless you fall into a very narrow exception.  Still, it’s a very serious matter.

In this case, husband was illiterate and had not completed his visa application himself.  A stranger waiting in line with him at the visa office helped him.  So the first response to the charge of fraud or misrepresentation should have been that he had no intent to deceive and, further, the alleged deception would not have helped him get his visa.  Had he been married, as indicated on the visa application, to a U.S. lawful permanent resident, as his then ex-wife was by this time, this would have been an adverse factor in his visa application.  This is because having strong ties to the U.S., such as to a lawful permanent resident spouse, weighs against being able to establish strong ties to your home country, a condition of being issued a tourist visa.  So this misrepresentation would not have helped him get his visa approved.

Even had husband deliberately intended to deceive in his visa application, a waiver of this ground of inadmissibility is available if you can demonstrate that denial of the adjustment of status application would result in extreme hardship to a U.S. citizen spouse.  In this case, both husband and wife had serious health problems.  Husband was frail and in severe ill health.  In fact, he had suffered a serious medical emergency in Jamaica the last time he was there from which he could easily have died.  Part of what made that event so life-threatening was that after he arrived at the hospital he was not treated for 16 hours while the hospital demanded upfront payment for treatment.  If he were forced to return to Jamaica then the next time he needed acute medical care he would face the same lack of prompt service and he would be allowed to die waiting for care.  Deportation to Jamaica would be a death sentence.

Prior counsel in the case did not dispute the finding of fraud or misrepresentation, or submit information about husband’s or wife’s medical conditions and medical history.  In fact, the only thing prior counsel submitted to argue hardship was statements from husband and wife, and their friends and family, that they loved each other and had for decades, and now were reunited and could not bear to live apart.  Not good enough.

Long story short, I disputed that husband deliberately misrepresented his marital status, and we submitted medical records and information about hospital conditions in Jamaica, and the case was approved.  What really helped, I believe, was to show the human costs in the case.  This was an elderly man who would have died the next time he needed emergency medical care in Jamaica.  That would have caused an extreme hardship to his wife.


“Do you have anyone I can marry?”

Friday, February 3rd, 2012

For those of you have who found true love with a foreign national, it can be bewildering how much paperwork you have to file to get permanent resident status for your spouse so that you can both live together here in America.

You may think, “We love each other and want to live together.  This is a real marriage.   Just how much evidence do we have to submit to get this done??”

Well, I just got a call the other day from a gentleman who was offering himself up for marriage, asking if I knew of any foreign ladies in distress in need of a green card.  This gentleman was a little surprised that my office was not interested in his services, and responded to my “Thanks, but, no thanks,” with a playful, “But who will ever know?”

Hah!  For those with real marriages whose green card applications are stuck in immigration limbo, you know that US Citizenship and Immigration Services and the Department of State aren’t such pushovers when it comes to proving a real marriage.  There are plenty of real marriages where husbands and wives have been living separately for years waiting for immigrant visas to be approved.  I’m sure these applicants would have plenty to say to the gentleman who was so ready to enter into a fraudulent marriage.

So, for all you international couples in love, let me warn you:  You may know that your love is real, but there are unscrupulous scam artists out there marrying for money who make proving the validity of your marriage that much harder.

If you would like expert assistance with the immigration process, Tran Law Associates is happy to help you out.  We understand what counts as strong evidence of a valid marriage and can help you make the best possible submission for your application.  You can contact us at (215) 690-1933, or check us out at

“Can I send her home?”

Monday, May 16th, 2011

The flip side of marriage-based immigration is when the marriage goes sour.

For couples who have been married less than two years by the time the petition for permanent resident status is filed, the immigrant spouse gets what is known as conditional permanent residency for a period of two years.  At the end of this two-year probationary period, the couple must show that the marriage is still intact to have the conditions removed and full permanent resident status granted to the immigrant spouse.  If the sponsoring spouse refuses to help the immigrant spouse apply to remove these conditions, it becomes a much harder process for the immigrant spouse to obtain full permanent resident status on his or her own.  During this two-year probationary period, then, the sponsoring spouse’s help to remove the conditions on residency can be used as a lever for the good behavior of the immigrant spouse.

Not infrequently, I get calls from men (and, so far, they have all been men) who, after jumping through the sometimes considerable hoops needed to get their fiancées or wives into the country legally, then become disenchanted with these women.  Maybe the women are not as nice as they were when the couple was courting.  Maybe the women used these men to get their green cards.  Maybe the men expected someone more servile and grateful for the privilege of bringing them into the country and are unhappy to be confronted with a person with strong views and desires of her own who is unwilling to merely be a housewife, mother, and housekeeper.  Whatever the reason, the marriage falls apart.  And then, the men ask me, “Can I send her home?”

“No,” I tell them.  “You don’t have the right to send her home.  You have the right to tell Immigration that she has left you and that you don’t want to live with her any more, but you do not have the right to decide whether she stays or goes back home.”  If the callers are interested in the why of this, I tell them that the decision as to whether someone who obtained  immigration status through marriage gets full permanent residency depends on whether that marriage was entered into in good faith and not  to obtain an immigration benefit.  And a child born of that marriage is pretty strong, although not definitive, evidence that the marriage was entered into in good faith.

I also get calls from women, and occasionally from men, who are being threatened by their sponsoring spouse with being “sent home” if they don’t “behave.”  And I tell them the same thing:  “No, he does not have the right to send you home.  That decision belongs to the government.  But he does have the right to refuse to help you get your permanent green card.  If you entered the marriage in good faith, you can apply for your permanent green card on your own and you may get it, if Immigration believes you.”

So, please, if you are thinking about filing a petition for a potential spouse, remember that while the decision to marry that person is yours, the decision as to whether that person can stay in America should you tire of him or her is not. You can save yourself the process of hiring an immigration lawyer to sort through such issues by thinking carefully before making such a decision. Please visit us at our address below if you have questions.

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

“Operation Morning Glory” — Marriage fraud in Salt Lake City

Saturday, September 25th, 2010

In August 2006, during a sting dubbed “Operation Morning Glory,” federal immigration agents raided the homes and businesses of dozens of Vietnamese-Americans suspected of involvement in a large-scale marriage visa fraud ring.  During that sweep, the feds netted 24 to 31 Vietnamese-Americans in and around Salt Lake City, Utah, who had recruited Utahns to enter into fake marriages with Vietnamese men and women to bring them to the United States under the marriage visa laws.

The ringleaders paid Utahns anywhere from $500 to $10,000, plus travel expenses, to go to Vietnam, participate in a fake engagement or wedding with the Vietnamese national being sponsored as the ‘fiance(e),’ take tons of photos as a couple with the Vietnamese national in different outfits in different locations to make it look like the couple had spent a lot of time together, and sign-off on the paperwork to petition for the Vietnamese national to immigrate to the United States based on the fake marriage.  Vietnamese nationals paid up to $30,000 for this service.  Anywhere from 80 to 100 fake marriages were arranged by this ring over its five-year run.

According to a 2008 U.S. Department of State report, a total of 90 individuals were successfully prosecuted in conjunction with the visa fraud ring, which is one of the biggest uncovered in immigration enforcement history.  The 90 individuals prosecuted makes it sound like both the ring organizers and the recruited Utahns were prosecuted, as the original sweep only netted 24 Vietnamese-American organizers.  Possible sentences for the charges ranged from 5 years for marriage fraud to 10 years for alien smuggling.  The fraudulently-sponsored spouses are, of course, subject to deportation for immigration fraud. They’ll need the help of the best immigration lawyers after committing such a crime.

The Deseret News, a Salt Lake City newspaper, led its reporting on the operation with this statement:  “On the crowded streets of Ho Chi Minh City, Vietnam, advertisements selling U.S. marriage visas are as common as ads for produce at grocery stores, according to federal agents.” Photographers advertising ‘wedding’ packages are also quite common in Ho Chi Minh City (Saigon) and Hanoi).  These packages usually include a few days during which the photographer takes pictures of the the happy couple in rented wedding attire, at a restaurant with rented ‘wedding guests,’ and other evidence of a happy ‘courtship.’  U.S. immigration authorities are well aware of this practice, and, needless to say, it does nothing to help real couples obtain marriage visas.

While it may seem that faking out U.S. immigration authorities is just a matter of learning what is needed to convince a consular officer to issue a fiance(e) visa and/or to convince a USCIS officer that two strangers are a happily married couple, being caught in immigration fraud means real jail time for U.S. citizens and deportation (and probably being barred from returning to the U.S. for a very long time or forever) for non-citizens.  The policy behind family-based immigration laws is to reunite actual family members.  These laws are abused when criminals decide to use them to bring anyone over who can afford to pay.  Suspicious consular officers or immigration officers then demand more proof from Vietnamese petitioners and make them jump through more hoops to get the same benefit as every other type of petitioner.  As an example of the visa refusal rate for Vietnamese nationals, in 2009 the consulate in Ho Chi Minh City refused 42.3% of all B visa applications.  The bottom line is that immigration fraud, whether marriage fraud or otherwise, makes it even harder for U.S. citizens and legal permanent residents of Vietnamese ethnicity to reunite with their real family members because it makes immigration officers extra suspicious of Vietnamese cases.

Djung Tran, Esq.

Tran Law Associates