Massachusetts Immigration Lawyer Blog

Boston Immigration Lawyer

As an immigration lawyer in Boston, I'm proud to be an advocate of marriage equality for same-sex couples. Given that same-sex marriage is legal in Massachusetts and elsewhere, the immigration question that I'm asked is usually this: can a U.S. citizen or lawful permanent resident who is legally married to a foreign national of the same sex file an I-130 visa petition with U.S. Citizenship and Immigration Services (USCIS) to have his or her spouse immigrate as an alien relative?

Sadly, for now at least, the answer to this question is a big "no." The federal government, including USCIS and other federal immigration agencies, doesn't recognize same-sex marriage, even though such marriages are legal in Massachusetts and other states and countries.

The Defense of Marriage Act (DOMA) stands as a major obstacle to the recognition of same-sex marriage rights in the immigration context. DOMA defines marriage as a union between a man and a woman for federal law purposes.

Ultimately, the constitutional argument for same-sex marriage is headed for the Supreme Court. Meanwhile, don't bother to file an I-130 visa petition based on a same-sex marriage. Instead, contact me to set up a consultation to explore alternative immigration options.

As an immigration attorney in Boston, I've helped countless immigrants navigate through the process of becoming permanent residents through marriage to a U.S. citizen. One of the most frequent questions I get is whether you can successfully obtain a green card through a marriage petition if you and your spouse aren't living together.

The answer is yes . . . and no. Let me explain.

I answered "yes" because there is absolutely no legal requirement that you and your spouse have to be living together in order for you to get a green card through a marriage-based immigration petition. The only requirement is that you and your spouse must persuade U.S. Citizenship and Immigration Services (USCIS) or an Immigration Judge that your marriage was entered into for good faith reasons. You have the burden of proving that your marriage is based on a relationship that is genuine and bona fide. And to meet that burden, you don't have to show cohabitation.

Is it possible to persuade immigration authorities that your marriage is bona fide even if you don't live with your spouse? The answer is really depends on the facts of your case. Perhaps you and your spouse have extensive documentation such as jointly-held insurance, leases, tax returns, bank account statements, which definitively shows that the two of you intend to establish a life as a married couple. But, for whatever reason, life's circumstances require your temporary separation. I've gotten green card cases such as this approved.

But remember: your marriage certificate doesn't entitle you to a green card. And if you do file a marriage-based immigration petition while separated from your spouse, proceed with caution. Marriage fraud is rampant. You shouldn't be surprised if USCIS takes a skeptical view of your relationship. In my experience as an immigration lawyer, you should have a well-documented and compelling reason for living apart.

One final piece of advice: if you are seeking a green card through marriage--whether you live together with your spouse or apart--the absolute worst thing you can do is to claim to be living together with your spouse when, in fact, you are not. Falsely claiming to live with your spouse will doom your chances for a green card. And a denial of your immigration case will likely result in a trip to Immigration Court for deportation proceedings.

If you are thinking about applying for permanent residency through marriage and would like the advice of an experienced immigration attorney, call my Boston immigration law office today at 617-722-0005.

Green Cards, Marriage and Taxes

As an immigration lawyer in Boston, I know next to nothing about accounting and tax law. But I do know a lot about how your tax return may impact your immigration case.

If you are going through any immigration process, you should expect immigration judges and officers to scrutinize your tax returns. For those who are in the process of applying for a green card through marriage to a permanent resident or to a U.S. citizen or who have filed an I-751 petition to remove the condition on permanent residency, I have 3 tips that may help you:

1. File your taxes jointly with your spouse using "married" status, if possible. U.S. Citizenship and Immigration Services will consider a jointly filed, married tax return as evidence that your relationship to your spouse is bona fide or genuine. Of course, if you are seeking a permanent residency but don't yet have a social security number it may be impossible to file your taxes jointly with your spouse.   But it is absolutely imperative that you file a married, joint tax return if possible.  The reason that this is so important is that if you file your taxes separately or as "single" immigration authorities may get suspicious and conclude that you and your spouse have a relationship that was entered into solely for the purposes of getting a green card.  If you file "single" during a time that you are married, I suggest that you consider filing an amended tax return to fix this.  

2. Make sure that the address on your W-2s confirms that you live with your spouse. USCIS will want to see your entire tax return, including all schedules, W-2s, 1099s and other schedules.  And if your paycheck is directly deposited into your bank account, then you might not be paying close attention to the address listed on your paycheck or W-2.  But if you are trying to convince an immigration officer that you live with you spouse, you had better be sure that address on your W-2 or paycheck should reflect that you and your spouse do in fact live together.

3. Provide your IRS tax transcripts to immigration authorities.  Whether you are in Immigration Court or appearing at an interview before a USCIS immigration officer, I recommend that you bring with you your IRS-certified tax transcripts and not a copy of your tax return.  The transcripts prove that your return was actually filed and is on record with the IRS and, therefore, is stronger evidence for immigration purposes.  I've seen plenty of denial letters from USCIS that say something along the lines of "although you provided photocopies of your tax return, you did not submit IRS-certified tax transcripts."  The IRS tax transcripts are available at the IRS office in the JFK Federal Building, next to USCIS Boston District Office or can be obtained by filing Form 4506-T with IRS.

If you have more questions about taxes and immigration or any other immigration topic or if you need representation in Immigration Court or elsewhere, please call my Boston immigration law office at 617-722-005 to schedule an appointment.

I was in Boston today at the Fundamental of Immigration Law Conference sponsored by the American Immigration Lawyers Association (AILA).  I spoke at a seminar entitled "Adjustment of Status and Consular Processing Workshop with the Experts--I-485, I-864, DS-230."

The immigration lawyers in attendance asked me some great questions, mostly about the I-864.  Here is some follow-up information:

1.  I-864, Affidavit of Support.  For questions on completing the I-864, I refer to an excellent 2006 USCIS memo available here which consolidated and revised USCIS policy regarding the I-864, Affidavit of Support.  Although more recent updated on the I-864, I find that this guide answers most basic questions.

2.  Public Charge and Public Benefits:  Your immigration clients may be concerned that if they accepts public benefits in the United States it could cause them immigration problems.  USCIS has published a guide available here that spells out which public benefits raise inadmissibility concerns under the public charge provisions of the Immigration and Nationality Act.  USCIS also put out a version of this guide specific to Massachusetts state benefits available here.

3.  Affidavit of Support (I-864) does not apply if the applicant seeking adjustment of status has worked or can be credited with working for 40 qualifying quarters, which can be documented by obtaining a certified Social Security earnings statement.  Information on how to obtain this statement can be found here.

I hope this information is helpful.  If anyone has a more specific immigration law questions, please call or email me.