Fraudulent marriage, Asylum & Lack of Notice of the One-Year Requirement to File an Application, and Work Permits for Those Ordered Removed
Immigration laws allow a spouse to file an immigrant petition on behalf of their foreign spouse, even if the foreign spouse’s prior spouse already filed a petition for their benefit and the petition was denied. But, if the prior marriage was fraudulent and entered into for the purpose of evading the immigration laws, the new petition will be denied. It is not relevant that the new marriage is not fraudulent.
In a recent decision by the Board of Immigration Appeals, the Board expanded the above and determined that the new petition may be denied because of a prior fraudulent marriage, even if the reason given for the denial of the prior petition was not the existence of a fraudulent marriage. In Matter of PAK, 28 I & N Dec. 113 (BIA 2020), the Board clarified that the Field Office Director may look at the file, including the one for the old petition, and make a new determination about the existence of fraud in the first marriage.
This case highlights the importance of reviewing an individual’s immigration file before submitting any new petitions or applications, as well as the need to address any inconsistencies or red flags contained in the file when filing the new petition or application.
Note: In this case, there is mention of a home visit by USCIS while reviewing the first marriage based petition. Therefore, it is important that petitioners and applicants for immigration benefits be aware that home, as well as work-site, visits are possible and they need to be prepared for them.
Asylum & Lack of Notice of the One-Year Requirement to File an Application
On November 4, 2020, a nationwide settlement was approved by the U.S. District Court for the Western District of Washington in Mendez Rojas v. Wolf, No. 2:16-cv-01024-RSM (W.D. Wash. Nov. 4, 2020), that affects asylum seekers.
The settlement applies to (1) individuals who were encountered by DHS upon arrival or within 14 days of unlawful entry, were released by DHS after they were found to have a credible fear of persecution or torture, and did not receive individualized notice of the one-year deadline to file an asylum application and (2) individuals who were encountered by DHS upon arrival or within 14 days of unlawful entry, expressed a fear of return to their country of origin, were released by DHS upon issuance of a Notice to Appear, and did not receive individualized notice of the one-year deadline to file an asylum application.
The above individuals have until March 31, 2022, to file notice that they are members of one of the above classes and to submit their asylum application. Asylum applications submitted under the settlement will be considered timely filed.
Work Permit for Those Ordered Removed
DHS announced a proposed rule that would limit work authorization for persons with final orders of removal that have been temporarily released on an order of supervision (OSUP). Currently, a person with a final order of removal, who is temporarily released from DHS custody on an OSUP, is eligible for work authorization.
Under the proposed rule, for the person to obtain work authorization, they would have to show that DHS has determined their removal from the country is impracticable and that they have an economic need to work. DHS has discretion to approve or deny the application.
The proposed rule also would limit the validity period of the work authorization to one year.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at 407-647-7887 or email@example.com to discuss any immigration issues you may be experiencing.