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  • Article: Great Victory on a K1 visa and Marriage Petition. By Shah Peerally

    Great Victory on a K1 visa and Marriage Petition

    by


    Facts : A marriage case which was lost in interpretation.

    Client (Beneficiary) came to see us when she was placed in removal proceedings (aka deportation) because the Department of Homeland Security(DHS) was convinced that she entered in a sham marriage to obtain immigration benefits. Client came to the United States on a valid K1 fiancee visa and applied for her adjustment of status (form I-485).  Client was scheduled for a fraud marriage interview around 2009 and the officer decided that the marriage was not bona fide, that is, entered solely to get immigration benefits. During the interview the adjudicating officer was over-aggressive figuratively ‘attacking’ the US citizen for actually entering in what the immigration officer believed to be a ‘sham marriage.’  During the interview the officer pressured the US citizen to admit that he was actually paid to marry the Beneficiary. The Beneficiary was from a Muslim country and barely spoke English.

    When the Beneficiary and her husband petitioner (Petitioner) came to see us in 2010, they were both devastated because they felt it was unfair decision especially since both were actually in a real marriage and were struggling to make ends meet.  They were living in a small room and both working hard to have an ‘American Dream’. Nothing prepared them for an ‘American Nightmare’.  During the adjustment of status interview at the United States Citizenship and Immigration Services (USCIS) office, Beneficiary was unable to explain that in the Islamic traditions, the male spouse is supposed to give a sum of money to the female spouse as part of the marriage ceremony.  This amount is known as the “Mohar” and without this money, a marriage is not sealed under Islamic law.  The officer seeing the document of the money concluded that this amount was being paid from the US citizen to the Beneficiary foreign citizen, which resulted in the very aggressive interview threatening the US citizen of prison time.  The US citizen petitioner who actually suffered from PTSD from a war torn country, under pressure, admitted something which he did not actually do.  He admitted that he (the petitioner) gave money to her spouse Beneficiary as if it was a ‘crime’. In fact, it was the truth that he gave the money but the officer misunderstood that money was actually paid to the Petitioner instead of the Beneficiary. Note that if money was actually paid to the Petitioner to enter in the marriage, the marriage would have definitely been a fraudulent marriage unless it was Mohar money. In this case, the petitioner in this case was male so the money was being paid by him not vice versa.

    Based on that the officer conducted one of the most oppressive ‘interrogation’ which not only led to a denial but to traumatizing both the US citizen and his wife.  The adjudicating officer also forced the US citizen to sign an admission of fraud.  Note that they were not represented by an attorney at this time. When we asked the Petitioner why he signed the admission, he answered was very scared and noted that “just like someone under torture would admit, I admitted”.  Although he was not being tortured, he told us that he felt this way especially because he re-lived his time from the war-torn country. Once we learned of this fact, we wanted to see a copy of the video recorded interview.  Note that the fraud interviews are often video recorded. We asked the government in court to give us a copy of the video recording, however they omitted to comply.  After numerous attempts on the Freedom of Information Act (FOIA), approximately two years later, we received a copy of the video which was recorded by the USCIS. When we watched the video, it was clear that this was not the ‘typical’ immigration interview and it was a tensed situation.  It actually reinforced our perception that this was a wrongful denial and we were now more convinced that our client was telling the truth.  Now we had to find a strategy to prove that the marriage was not a sham marriage.

    The real challenge was to  prove the ‘bona fide’ of the marriage especially since there was a signed admission by the US citizen that there was fraud involved.  With a written admission our law firm’s task was almost impossible. However, attorney Shah Peerally was convinced that the couple had a bona fide marriage after speaking to many people in the family, friends and ultimately watching the video.  Shah, wanted to fight this case because he believed that the couple was capriciously, arbitrarily and wrongfully denied the ability to live a peaceful life together.

    Issue: How could lawyer Shah Peerally prove that the marriage was bona fide so many hurdles in the case?

    One of the biggest hurdle in this case was that the Beneficiary entered on a K1 visa and unless the USCIS had adjudicated in her favor in the adjustment of status, only a judge could now make a de novo assessment and grant the case.  The judge was not ready to send the case back to USCIS because at this point it was under court’s jurisdiction. Unlike a case where an I-130 could be refiled, the K1 cannot be refiled while someone is inside the United States.  Nonetheless we need to prove that there was a bona fide marriage and one of the ways to do that was to request the USCIS to do a ‘home visit’ to check on the couple whether they were actually living together or not. Since the case was already in court, the USCIS not longer had jurisdiction of the case, therefore no investigation on the bona fide of the marriage was to be done.  The question was how to convincingly prove the bona fide of the marriage.

    Our Approach:

    Shah Peerally actually argued this case in court, and during the master calendar hearing told the judge that the marriage was still viable and ongoing between the two parties and request the judge to allow him to file a form I-130 (Alien Relative Petition) on behalf of Beneficiary.  While on procedure such attempt cannot work because the client entered on a K1 visa, the I-130 petition compelled the Department of Homeland Security(DHS) to actually investigate the marriage. The judge agreed to this approach and Shah filed a form I-130 for the Beneficiary and agreed that the DHS could go through a home visit at any time.  The couple was called for another interview at the USCIS office based on the I-130 where Shah personally explained to the officer the behavior of the previous officer was outrageous and the entire misunderstanding of the case.  Shah also did a mental evaluation of the US citizen and the impact of the interrogation and denial of his wife benefits.  The report concluded that under pressure the US citizen, due to his PTSD conditions, would admit to many possible things including the present admission. The USCIS agreed with Shah in around 2011 and actually sent someone for a home visit.  Ultimately at the visit, the DHS officer was actually satisfied with the couple living together and approved the form I-130 that it was an actual bona fide marriage.  However, the approval of the form I-130 could not actually be used while the Beneficiary is in the United States and since Beneficiary is from a previously war-torn country and also might have accrued unlawful presence, it would not have been wise to send her to her home country to get her I-551 stamp to come back.

    Shah decided to approach it differently, getting ready to call the DHS officer who approved the I-130 and the officer who made the ‘home visit’ to testify on the case. However, before calling on them to testify, Shah called the prosecutor and requested to terminate the removal proceedings based on the fact that the DHS did find it was a bona fide marriage.  This could be concluded on the fact that the form I-130 was approved.  Unfortunately the government refused to terminate the case.  Nonetheless Shah went ahead and filed a motion to terminate based on proof of a bona fide marriage and on judicial economy.  The judge agreed with attorney Shah Peerally.  Shah also requested that the denied adjustment of status be revived and another interview is granted for the Beneficiary to get a chance to prove her case. The judge granted this permission and terminated the case in immigration court.

    Outcome:

    In 2016, seven years later, the USCIS called for an interview and finalized the case.  In March 2016, Beneficiary was granted her permanent residence and will now hopefully be able to live a normal life.

    Conclusion:

    This case is a good example of an abuse of discretion, wrongful denial and wrong understanding of cultures.  It is also one of the many cases Shah Peerally and his team is proud of winning. Had Shah not tried this approach Beneficiary would have still be stuck in immigration where the hearing was scheduled for 2019.  Thanks to Shah’s extensive perception and extensive knowledge of immigration law and strategy how to fight such cases, the client is now free with a green card.  Over the years Shah and his team have successfully assisted hundreds of immigrants in their quest for residency and citizenship. If you find yourself in similar or even any immigration situations and you need help, please feel free to call us at 510 742 5887.

    Note: The outcome of this case does not guarantee the outcome of similar cases. Each case is different and success in one case does not mean automatic success in other cases.  Should you have any questions, feel free to call us.

    This post originally appeared on peerallylaw.com. © copyright reserved Peerallylaw.com. All rights reserved. Reprinted with permission.


    About The Author

    Shah Peerally Shah Peerally is the founder, President, and Managing Attorney of the Shah Peerally Law Group P.C. (Newark, California) and is a member of the American Immigration Lawyers Association as well as the State Bar of California. He is a passionate advocate of Human Rights, Civil Rights, social action, and social services, and he has a strong interest in (and knowledge of) the political/legal system in the U.S. He formed his Law Group to work on the causes he feels most ardent about – the law group focuses on Immigration Law with an emphasis on Employment Based Immigration, and helps clients all over the U.S.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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