November-December 2012

Issue link: http://ailahub.aila.org/i/93510

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Page 33 of 37

INTERALIA The Foreign Affairs Manual: It's for More Than Just Consular Processing by Jason Mills that weaves together statutes, regulations, and case law regarding other types of immigration law, including family-based and criminal immigration cases processed and filed entirely in the United States. T he pre-conceived notion that the Foreign Affairs Manual (FAM) is a resource dedicated solely to consular processing couldn't be further from the truth. Rather, it is a comprehensive resource Criminal Immigration Let's say a corporate client with an H-1B visa recently he asks an attorney about the possible ramifications of his nondisclosure, including a denial of the application. In 9 FAM 40.6 Exhibit I, a chart lists the grounds of inadmissibility for immigrants and nonimmigrants, as well as the applicable waivers. Using this chart, the attorney can quickly find the appropriate ground of inadmissibility, which, in this case, is a potential misrepresentation, as well as the applicable waiver, if one exists. Additionally, this chart mentions 9 FAM 40.63, which provides related statutory and regulatory provisions. The corresponding notes offer, among other things, the criteria for inadmissibility under INA §212(a)(6)(C)(i), precedent cases, and information 34 VOICE filed an adjustment of status in an EB-2 category. He is very worried about information that he presented in his adjustment of status application because he did not disclose that he was arrested for a minor theſt offense when he was 19 years old in England. At the time, he had taken someone's cell phone as a prank, but ended up keeping it. The case was filed and disposed of as a misdemeanor ticket. He paid a fine and served no jail time. He understands through his own research that the criminal act itself is considered a petty offense and will not affect his ability to adjust. The client, however, did not disclose this arrest on his adjustment of status application because he did not want his employer to know about this embarrassing fact. Considering that he has an interview in a few days, SUBSCRIBE TO AILALINK! It keeps the FAM up to date! Purchase > on timely retractions of misrepresentations. According to 9 FAM 40.63 N4.6, the client can timely retract the misrepresentation at the interview. By doing so, the client is likely to avert a finding of inadmissibility, even if the misrepresentation is found to be material. Family-Based Immigration Relevant to family-based immigration cases, the FAM describes the criteria for a "valid" marriage for immigration purposes. 9 FAM 40.1 N.1.1–1.5. So let's say a Texas-based client would like to adjust status in the United States but is unsure if his marriage is legitimate. He entered as a B-2 visa holder, but overstayed. He is later arrested for driving while intoxicated in Texas. While serving a sentence aſter being convicted for this offense, he entered into a proxy marriage with a U.S. citizen he had been dating. He was later released because U.S. Immigration and Customs Enforcement did not issue a detainer in his case. He would like to know if he can file a one-step adjustment. He has addressed the issue of his arrest, but worries if the proxy marriage will be deemed valid. An attorney can use the FAM to determine whether the proxy marriage is valid. A portion of 9 FAM 40.1 N.1.1, which includes succinct references to the relevant Defense of Marriage Act and INA provisions, at first glance, appears to generally not recognize proxy marriages as valid for immigration purposes. See 9 FAM 40.1 N1.1b. But see 9 FAM 40.1 N1.3-1 "Consummated, an immigrant visa (IV) to a 'spouse,' a proxy marriage that " where it states, "For the purpose of issuing has been subsequently consummated is deemed to have been valid as of the date of the proxy ceremony. Proxy marriages consummated prior to the proxy ceremony cannot serve as a basis for the valid marriage for immigration purposes."

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