Asian Journal- The Filipino-American Community Newspaper

Question: When will an annulment of marriage be retroactive?

Answer: In Matter of Astorga (BIA 1979) the Board of Immigration Appeals ruled that in the absence of fraud or misrepresentation, a decree obtained ab initio to annul first marriage is legal and will relate back to cure defects of the petition. This is in the case of visa petition proceedings only and not in deportation or exclusion proceedings.

Answer: Yes. In Matter of G., 9 I & N Dec. 89 the Board of Immigration Appeals ruled that marriage between minors are voidable marriage and are considered valid marriage for immigration purposes.

Answer: No. In Matter of Miraldo, the BIA ruled that the divorce must be final and not simply a separation.

Answer: The USCIS will do the following procedures to assess the validity of a divorce:

•It will examine whether the state or country which granted the divorce properly assumed jurisdiction over the divorce proceedings.

•It will scrutinize whether the parties followed the legal formalities required by the state or country, resulting in a legally binding divorce.

•It will examine the laws of the state where the divorced party in the immigration proceedings resided at the time of the divorce, or of the place where that person subsequently remarried.

Answer: The USCIS will follow the above mentioned procedure to determine if a divorce in Nevada is valid for immigration purposes. USCIS will look at the state law of Nevada whether it has assumed jurisdiction over the divorce proceedings. It will also examine whether the parties followed the legal formalities in the divorce proceedings especially with regards to residency requirements. Lastly, it will examine the laws of Nevada and where the alien beneficiary resided at the time of the divorce proceedings.

Filing under the new late amnesty settlement starts on February 1, 2009 and ends on January 31, 2010. The requirements are: (a) the applicant came to the United States on a valid visa before 1982 and fell out of legal status between 1982 to 1988. (b) The violation of status must be known to the government. (c) They must have resided continuously in the United States from before 1982 to 1988. Some denied amnesty applicants may file again this time if (a) their application has not been adjudicated or (b) their Temporary Resident Status has been proposed for termination or (c) their applications were denied because the government believed that they failed to meet the requirement that their unlawful presence was continuous.

We again have successfully obtained a waiver of fraud or misrepresentation in Immigration Court for a green card holder who entered as single but actually married. The green card holder who has been in the United States for 17 years has a mother who is a US citizen.

Green cards without expiration date should be renewed. They have the alternative of applying for naturalization. Please call our office for questions about renewing green cards.

Waiver for misrepresentation at the time of entry (entered as single but actually married) may be waived if you have a parent, spouse, son or daughter who is a US citizen or lawful permanent resident. Once approved you may be eligible for naturalization. You should apply now before your personal situation or the law is changed.

Denied adjustment of status and Naturalization applications are now being sent to the Immigration Court.

Income tax filing is required in the proposed legalization. Individual Tax Identification Number (ITIN) can be used for filing tax returns and is required before bank accounts can be opened. Our office assists clients in obtaining ITIN.

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Crispin Caday Lozano is an active member of the State Bar of California and he specializes in immigration law. His offices are located at 17057 Bellflower Blvd. Suite 205, Bellflower, CA 90706 and 1290 B Street, Suite 205, Hayward, California 94541 and at 777 N. First St., Suite 333, San Jose, CA 95112. You can contact him at telephone (562) 461-1355 and (510) 538-7188.