Marital / Familial Relationships and Immigration Benefits (Part 1 of 2)10 Dec 2012
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.
Before Marriage, Certain Relationships Must be Mentioned
On the nonimmigrant visa application, an applicant is asked about his/her relative/s in the United States. One of those listed on the form is the fiancé/e. It seems applicants often gloss over this question and forget to mention a betrothed. Our firm has seen situations in which visa applicants fail to mention their fiancé/es 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 the first visa applications for failing to mention a fiancé/e.
While the concept of fiancé/e can be a bit difficult to define, as there generally is no official record of the engagement, there are times when it is clear that a wedding was planned when the first visa was requested. For example, if one applies for a visa without mentioning a fiancé/e, 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.
When Married, Always List Spouse on Forms
Once a couple is married, if a question is asked about marital status, it must be answered accurately. This applies to all forms, including immigration and tax forms. This rule holds true even if the marriage documentation, such as registration, is not yet complete. In some countries, including India, registration is a separate step completed by a couple following the wedding ceremony. However, the registration of the marriage is merely a formality, and the marriage registration will actually reflect the date on which the ceremony occurred.
Sometimes one may choose not to mention his/her spouse, not wanting to include them 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.” One’s spouse MUST be listed, even if s/he is abroad or if there are marital difficulties. This is so particularly 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 generally is not excused because s/he did not read the form or for misunderstanding it. Failure to provide accurate information is ground for termination of immigration benefits or may result in a denial of the requested benefit. If there is anything that is not clear, it is best to seek qualified legal advice.
Important for Tax Returns to Accurately Reflect Marital Status
In keeping with the above, it seems to be common for the tax returns of married applicants to list the marital status as single. 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 United States, has not worked, or does not have a social security number, the form cannot be filed as married. 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, W-2s, 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.
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 comes under less scrutiny in employment-based cases than in marriage-based cases, the USCIS is permitted to request proof that the marriage is bona fide even in employment-based cases. Typical proof includes jointly-filed tax returns, or at least a tax return identifying the filer as married. This seemingly minor error of indicating 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 delays and problems.
It should also be noted that similar difficulties arise 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, which 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.
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 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 the immigration case, but also to prevent potential trouble with the Internal Revenue Service (IRS).
One who is unsure of the proper tax filing status to select 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 for clarification if unsure of the proper response.
List Spouse as Occupant of the Residence with U.S. Postal Service
From time to time a client reports that important mail from the USCIS to the spouse has not been delivered, whereas mail from the USCIS to the primary applicant is received. While there can be many reasons for this, sometimes it is simply because the USPS was never provided with the spouse’s name as also residing at the address. This may result in one’s letter carrier not attempting delivery of official mail from a government agency. Especially 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 check with one’s local post office to make sure that all occupants of the household are listed as living at that address is worthwhile, or visit the USPS Website. Apartment mailboxes should also indicate the last names of all residents, if there is a space to provide such information.
These tips and reminders have been helpful to many MurthyDotCom readers, ensuring smoother processing of their spouses’ immigration cases, and in avoiding denials or other unfortunate consequences in their immigration processes. Those with questions can consult with one of our Murthy Law Firm attorneys.
Read Part 2 of this article.
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