Marital / Familial Relationships and Immigration Benefits
Posted Oct 13, 2006
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At the Murthy Law Firm, cases often come to our attention when a seemingly minor oversight or discrepancy causes enormous immigration problems for a spouse. Some of these difficulties may even render such a spouse ineligible for nonimmigrant status or for the green card. Below are a few examples and reminders of how to avoid such potential pitfalls.
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Visa Applicants before Marriage Must Mention Certain Relationships
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On the nonimmigrant visa application, the applicant is asked a question about his/her relative/s in the U.S. One of the those listed on the form is the fiancé / fiancée. It often seems an applicant will gloss over the question and forget to mention a betrothed. Our firm sees situations in which visa applicants fail to mention their fiancés / fiancées on, for example, B-1/B-2 applications, and get married and return to the consulate to request the H-4 visa soon thereafter. These individuals often run into serious problems. The consulate may find that fraud was committed on their first visa applications for failing to mention the fiancés / fiancées.
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While the concept of fiancé / fiancée can be a bit hard to define, as there generally is no official record of the engagement, there are times when it is clear that the wedding was planned when the first visa was requested. For example, if one applies for a visa without mentioning a fiancé / fiancée, and a month later has an elaborate wedding that clearly took months to plan, the couple is very likely to encounter a problem when they apply for the next visa. If there really was a last-minute decision to marry, then the couple should be prepared to document that fact.
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When Married, Always List One's Spouse on Forms!
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Once a couple is married, if a question is asked about marital status, it needs to be answered correctly. This applies to all forms, including immigration and tax forms. Sometimes people fail to mention a spouse because they do not want them included for some reason. If the question is asking simply for data, then it needs to be accurately provided. "List your spouse, if any," is not asking the same thing as, "Do you wish to include your spouse, if any." The spouse MUST be listed, even if s/he is abroad or if there are marital difficulties. This is particularly so as most legal forms, whether for immigration or tax purposes, are signed under penalty of perjury. It is a federal criminal offense to misrepresent information on any such forms. One is not excused because s/he did not read the form or misunderstood it, as it is permitted to consult an attorney for that purpose. Failure to provide accurate information is ground for termination of immigration benefits or may result in a denial of the requested benefit.
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Important for Tax Returns to Accurately Reflect Marital Status
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In keeping with the above, it seems to be common for married applicants' tax returns to list the marital status as "single." Perhaps the applicant thinks that it is unimportant, as the spouse is not in the U.S. or does not have a social security number. Maybe the applicant never thought about it at all. This type of misrepresentation on tax returns is often the result of misunderstanding or the mistaken belief that, if the spouse is not in the U.S., has not worked, or does not have a social security number, the form cannot be filed as "married."
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Listing one's marital status incorrectly can have severe adverse consequences. Often copies of tax returns are required by the USCIS. For example, the petitioning spouse in a marriage-based case must usually provide tax returns, W2s, and pay stubs with the Affidavit of Support. These documents may also be required as part of an employment-based I-140 filing or RFE response.
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It is especially detrimental in a marriage-based case to provide any documents that incorrectly list the petitioner's status as single, because the entire basis of the immigration case rests on the ability to provide evidence of the validity of the marriage. Even though the validity of the marriage traditionally fell under less scrutiny in employment-based cases than in marriage-based cases, our firm recently has seen an increase in RFEs in employment-based cases in which the USCIS asks for proof that the marriage is bona fide. Typical proof includes jointly-filed tax returns, or at least a tax return identifying the filer as married. This seemingly minor error of listing one's marital status as single may result in a denial of the marriage-based case, or the derivative spouse's application. At the very least, it creates problems.
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We would also note similar difficulties when a tax filer claims to be a "head of household" while married. This category has a specific meaning in terms of the state of the marriage, that may conflict with claims made in a marriage-based case. The USCIS is mindful of the meaning of this filing status, and it creates significant problems if a couple is seeking a marriage-based immigration benefit while filing taxes in a manner that may conflict. Again, not understanding certain terms on the forms is not an excuse for checking off the wrong box.
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Tax issues such as these arise in nonimmigrant, green card, and naturalization cases. Improper tax filings call into question the bona fide nature of a marriage, the ongoing marital union of the parties, and give rise to possible matters of noncompliance and/or underpayment of taxes. Noncompliance with the U.S. tax laws can result in significant financial and legal penalties, in addition to immigration problems. It is, therefore, critical that all tax returns and other documents correctly reflect one's marital status. This is important not only to safeguard one's immigration case, but also to prevent potential trouble with the Internal Revenue Service (IRS).
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One who is unsure which tax filing status should be indicated is advised to consult with a qualified tax professional. We emphasize the need for qualified, reputable tax advice, as there are unscrupulous tax preparers who seek to prey on the immigrant population. We also emphasize the need to properly and accurately respond to any questions from the tax professional. One should ask her/him for clarification if unsure of the proper response.
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List Spouse as an Occupant of the Residence with the Post Office
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From time to time a client reports that important USCIS mail for the spouse has gone astray; whereas the primary applicant receives correspondence from the USCIS. While there can be many reasons for this, sometimes it is simply because the post office was never provided with the spouse's name as also residing at the address. In such an instance, it is possible that the letter carrier may not attempt delivery of official mail from a government agency. If the spouse has a different last name, it is reasonable that the letter carrier may not deliver official government mail if there is no record on file of such a person residing at the address. Double checking with one's local post office to make sure that all occupants of the household are listed as living at that address is worthwhile. Apartment mailboxes should also contain all last names, if there is a space to provide that information.
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Remember to Extend Spouse's H-4, L-2, or other Nonimmigrant Status
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Failure to maintain nonimmigrant status is perhaps the single most devastating oversight with respect to spouses. MurthyDotCom and MurthyBulletin readers have often been reminded that it is critical for the derivative spouse's H-4, L-2, or other nonimmigrant status to be extended when s/he and any other dependents are in the U.S., separately from the primary applicant's H1B, L-1, or other status. Simply extending the primary spouse's H1B or other status does NOT automatically extend the derivative spouse's H-4 or other status. If the H-4, L-2, or other status is not properly extended, this can result in the derivative spouse falling out of status, becoming subject to removal, ineligible to file for adjustment of status, and being subject to a 3- or 10-year bar to reentering the U.S. These results can be devastating to the family's future hopes and dreams of residing lawfully in the United States. If one has concerns about a spouse's status, s/he advised to consult with an experienced, qualified immigration attorney without delay.
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For Certain Dependents : No Work Means NO Work
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Certain nonimmigrant statuses that are given to spouses, such as the H-4, do not permit employment. While it sounds simple, the restriction against work needs to be emphasized. If one is not authorized to work, this means that s/he cannot work at all, except in a context that is purely volunteer (usually charitable or educational in nature). This means no in-home daycare, no self-employment through multi-level marketing, no running one's own business, no cottage industry, and so forth. With respect to daycare, it is acceptable to watch a friend's child/ren on occasion, as a favor with no compensation whatsoever. Parents often do this to help each other, without compensation. It is not acceptable to have children dropped off on a regular schedule and to care for them in a context that would normally involve compensation. We previously addressed the topic of home-based businesses and the possibility of inadvertent unauthorized work in our July 25, 2005 MurthyBulletin article, Home-Based Businesses: Inadvertent Unauthorized Employment, available on MurthyDotCom.
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Divorce and Remarriage
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In the case of divorce, it is necessary to make sure that all the paperwork and details of the divorce are resolved before there is any remarriage. If one was married abroad, s/he is considered married in the United States, unless and until that marriage is terminated. The foreign marriage cannot be ignored and must be dealt with before any remarriage.
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Avoid Any Physical Attack or Doing Harm
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Every married couple has disagreements. When these occur, neither person should ever physically assault or harm the other, even if the parties cannot be kind and supportive of one other during those times. Domestic violence is taken very seriously in the U.S. and by the U.S. immigration laws, as well as the criminal laws. The criminal laws often provide for substantial criminal penalties, including imprisonment. The immigration laws provide that persons with convictions for domestic violence can become both removable from the U.S. and barred from entering the U.S. in the future. Arguments often get loud and neighbors may call the police, even if the abused spouse does not. If a disagreement is escalating to a physical level, then it is time to take a walk outside and cool down.
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This same warning goes for members of the extended family who may be living in the household. It is a crime to intentionally cause physical harm to another person, whether a stranger or a relative. If one marries, and her or his relatives begin abusing the new spouse, the abusive family members need to be informed that such conduct is not acceptable, particularly in the U.S., and can result in criminal charges and serious immigration problems.
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Conclusion
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We hope that these tips and reminders will be helpful to MurthyDotCom and MurthyBulletin readers in ensuring the smooth processing of their spouses' immigration cases, and in avoiding denials or other unfortunate consequences in their immigration processes.
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