by Heidi Meyers | Dec 31, 2019 | Articles
In order for the U.S. State Dept or DHS (Department of Homeland Security) to recognize a marriage for immigration purposes, the marriage must be legal in the place where it is contracted. Not only that, there must be documentary proof the marriage actually took place, unless the country recognizes common law marriage. Religious minorities in certain countries have difficulty obtaining proof of the legality of their marriage. Certain countries also ban interfaith marriages. This creates immigration issues for religious minorities as well as for interfaith couples.
The danger that religious minorities and interfaith couples face in their home countries may also make them eligible for asylum, and is a strong factor in favor of a grant of cancellation of removal.
Example 1: Hindu marriage in Pakistan. Our first example is a Hindu couple, Vishnu and Adhiti from Punjab Pakistan. Vishnu marries his wife Adhiti in Pakistan in 1999. There was no procedure for registration of Hindu marriages in Pakistan prior to the change in the law in 2017.
In 2015, Vishnu goes to the U.S. on a B visa and in 2016, he changes status to H-1B. He misses his beloved Adhiti and their two children. Adhiti goes to the U.S. Embassy in Islamabad to apply for an H-4 visa. She has no certificate from the Hindu temple that married them. Adhiti contacts the Hindu temple where they were married, but the elderly Hindu priest has died and there is no one to help her.
The U.S. Embassy denies her H-4 visa because she lacks any proof of legal marriage. The fact that they have two children does not convince the consular officer. Pakistan does not recognize common law marriage, and because of the Pakistan government’s prior lack of recognition of Hindu marriage, they have no marriage registration from the government. Not only do they not have any government-issued marriage certificate, they also do not have any certificate from the temple which performed their marriage. So they do not have documentary proof that they are actually married.
Even if they did have a temple certificate and were able to satisfy the U.S. Embassy, this would not satisfy USCIS for any applications later on. USCIS would request proof of legal marriage recognized by the government, which depends upon the law of the country where the marriage was contracted.
However, Pakistan’s parliament passes the Hindu Marriage Act, and it is signed into law in 2017. The Act applies retroactively to Hindu marriages that took place prior to the Act, and makes them legal.
After the Hindu Marriage Act goes into effect, Adhiti goes to the local marriage registrar and fills out the Shadiparat (Certificate of Hindu Marriage). She completes the Shadiparat form with her and her husband’s basic information, and where and when she was married. Both Adhiti and Vishnu sign the form, along with two witnesses and the local registrar issues them a marriage certificate. See, Pakistan Act No. VII of 2017 “An act to provide for the solemnization of marriages by Hindu families and for matters ancillary and incidental thereto”, http://www.na.gov.pk/uploads/documents/1491458181_468.pdf See also, Sara Raza, “The Hindu Marriage Act 2017: A Review”, Lums Law Journal Vol 4., https://sahsol.lums.edu.pk/law-journal/hindu-marriage-act-2017-review
They will then have adequate proof of their marriage. Thus, after the change in the law in Pakistan in 2017, Vishnu would be able to have his wife to come to the US. on the H-4 visa.
Let’s change the scenario a little. Suppose Adhiti is desperate to come to the U.S. prior to the change in the law. Is there another option for her? Yes, there is the B-2 visa, which is an option for unmarried partners. According to the Foreign Affairs Manual, 9 FAM 402.2-4(B)(5), the B-2 visa is appropriate for co-habiting partners, and members of the household of the principal, if the principal has a long-term nonimmigrant status. See, https://fam.state.gov/fam/09FAM/09FAM040202.html. For example, the principal may have H-1, L-1, O-1, F-1, J-1, A, G, or NATO status. For any of these long-term nonimmigrant statuses, the cohabiting partner may apply for B-2 status if he or she is not eligible as a derivative.
So, she may apply for a B-2 visa by proving to the U.S. Embassy that she and Vishnu have been living together and have a long-term relationship. Because they have two children, this should be easy to prove.
The B-2 is also an option for gays who are unable to marry in their home countries, or for other permanent couples who for whatever reason do not believe in the institution of marriage.
Example 2: Christian marriage in Morocco. In June 2018, Reuters reported on the marriage of a convert to Christianity, Loubna and her husband Kamal in Morocco. Kamal is also Christian. Because of threats from people in their conservative home town, they had to have their wedding ceremony in the office of a human rights organization in the capital of Rabat. See, https://www.reuters.com/article/us-morocco-religion/christians-want-marriages-recognized-in-morocco-idUSKCN1J4231. Morocco does not recognize Christian marriages as legal, only those of Muslims and Jews. Because Loubna and Kamal’s Christian wedding is not recognized as legal by the Moroccan government, neither Loubna nor Kamal would qualify for derivative immigration status if one was granted any kind of nonimmigrant visa or the green card.
This scenario is similar to our first scenario. Supposing Loubna got an L-1A as an executive or managerial transferee, to come to the U.S., her husband Kamal would not qualify for a derivative L-2, but he would be able to qualify for a B-2 visa as her cohabiting partner.
Example 3: marriage of a Hindu and a Christian interfaith couple in India. In India, interfaith marriages are regulated by the Special Marriage Act, 1954. The Act requires that an interfaith couple must publish the intention of their marriage with the government for at least 30 days prior to the wedding. Both Indian nationals, Christian Mary and Hindu Ramesh love each other and wish to marry. Due to fear of religious extremists who oppose interfaith marriage, attacking them and their families to prevent their marriage, they are too scared to go through the process of publishing their marriage for 30 days prior to the wedding. Instead, they have a simple Hindu ceremony and do not register their marriage with the government.
In order for this to be a different scenario from our first example, suppose they both depart India and enter the U.S. If both are physically present in the U.S., and one obtains immigration status, the other will not qualify as a derivative because they are not legally married. Their marriage is not recognized in the place where it occurred. The easiest solution is to just get married again here in the U.S.
Example 4: Marriage of a Muslim woman and non-Muslim man in Algeria. Fatima, a Muslim young woman from Algeria, comes to the U.S. on an F-1 student visa to attend college. On the college campus, she meets Bob, your average American white male from Iowa, who is a Lutheran protestant. They fall in love. Brimming with idealism, they decide to go to Algeria together for Bob to meet Fatima’s parents and to propose marriage. Fatima’s parents advise her that although they think Bob is a very nice person, he is not suitable for marriage. The parents, although, do ask Bob if he has considered converting to Islam. Bob cannot contemplate praying five times per day, nor fasting for even one day, let alone a whole month. Furthermore, he has been eating ham since he was young and is not about to give it up. Bob answers no, he is not willing to convert, but that he loves Fatima and would work hard to make her happy. The parents are then implacably opposed to their marriage.
Regardless of the position of the parents regarding their daughter’s potential interfaith marriage, Algerian law forbids the marriage of a Muslim woman to a non-Muslim man. Thus, it is not legally possible for them to get married in Algeria. Even if they were to find a sympathetic Imam to perform the marriage, it still would not be legal.
Meanwhile, Fatima’s F-1 student visa has expired and she needs to apply for a new one. Fatima and Bob discuss that once she gets her F-1 visa renewed, they will be able to marry in the U.S. However, this is problematic. In order to qualify for the F-1 visa, one must prove that one’s intention in coming to the U.S. is only temporary, and that the F-1 will return to his or her home country at the end of their stay. If Fatima plans to marry Bob, a U.S. citizen, and stay permanently in the U.S., she could later be accused of immigration fraud.
The solution here is for Bob to file a fiancée petition, with USCIS, and demonstrate that he and Fatima have a genuine relationship, that they are not marrying for immigration purposes, and they plan to spend their lives together. Bob must prove they plan to marry within 90 days of Fatima’s entry into the U.S. He may have to show their specific plan for the wedding. Once USCIS approves the K-1 fiancee petition, it will be forwarded to the U.S. Embassy in Algiers for an interview.
Here, the B-2 will not be appropriate, because they are students and have not lived together. Anyway, Fatima objects to living together until after they marry.
Example 5: Interfaith marriage of a Christian and a Jew in Israel. Israeli Jewish Uri falls in love with Anastasia, an Orthodox Christian who is also Israeli. Because interfaith marriage is illegal in Israel, and Anastasia does not want to convert, they travel to Cyprus, and have a big fat wedding with all the family and friends. They get a legal marriage certificate from Cyprus.
Anastasia later on becomes eligible to immigrate to the U.S. through her U.S. citizen mother. Uri will be her derivative and will be able to immigrate at the same time and they will both become permanent residents. It does not matter that both are Israeli citizens and that both live in Israel where interfaith marriage is illegal. Because their interfaith marriage was legal in Cyprus, where it occurred, the US State Dept and DHS will consider them to be legally married.
Example 6: Muslim marriage in UK, which is not registered. It is perfectly legal for Muslims to marry each other in England, but unfortunately many Muslim marriages are not registered with the government. Sixty percent of Muslim women in the U.K. who have had a traditional Muslim wedding ceremony with a Nikkah, have not had their marriages legally registered with the government. This is not a problem of British law, which does not discriminate against Muslim marriage. It is a problem of the Muslim community not registering the marriages civilly. See, https://www.theguardian.com/world/2017/nov/20/women-uk-islamic-wedding-legal-rights-civil-ceremony-marriage Apparently, more than 90% of mosques are not registering Muslim marriages under civil law.
Suppose Aisha and Muhammad Rehman have a Muslim marriage contract, a Nikkah at a mosque in London and have had a shadi. In order for one to be the derivative of the other for U.S. immigration purposes, all they have to do is register their marriage civilly.
Thus, should your status as an interfaith or minority religious couple make a difficult or impossible to legally marry in your home country, you may have a number of options. First, get married in another third country where it is legal. Second, the partner can come to the U.S. on a B-2 visa if he or she is unable to get derivative status from the principal’s long-term nonimmigrant status. Third, if both partners are here in the U.S., just get married again (the kids love it!). You can call it a renewal of vows. Fourth, if one partner is a U.S. citizen, he or she can sponsor the other for a K-1 fiancee visa, and they then marry within 90 days of entry.
Finally if you face danger in your home country due to your status as an interfaith couple or religious minority, you may be eligible for asylum, withholding of removal or relief under the Convention Against Torture in the U.S. Additionally, the fact that you will be in danger if you return to your home country due to your status as an interfaith couple or religious minority, will be a strong factor in favor of a grant of cancellation of removal.
Copyright 2019 © Heidi J. Meyers all rights reserved.
by Heidi Meyers | Dec 30, 2019 | Articles
During 2019, more than half a million employers have already received social security no-match letters. The Social Security Administration had discontinued sending “no-match” letters (Employer Correction Request Notices – EDCOR) in 2011, but during 2019, the SSA is determined to send no-match letters to each and every employer in the U.S. who reported at least one employee with a name and social security number that did not match its records.
While the Social Security Administration itself is not an enforcement agency, and cannot penalize employers who do not respond to no-match letters, if an employer fails to take corrective action after receiving a no-match letter, and ICE (Immigration and Customs Enforcement) does a Forms I-9 audit, the employer’s lack of action may be considered constructive knowledge that the employee lacks work authorization.
What should an employer do upon receiving a no-match letter? The employer first needs to check its own records and see if there was a typographical error, or perhaps a name change. If it was merely a typo, the employer should contact SSA to make the correction. The employer should keep records of its contacts with SSA and attempts to fix the problem, to show ICE later on in case of audit. The employer should also keep a record once the SSA verifies the social security number and information. The SSA has online resources to help employers who have received a no-match letter, https://www.ssa.gov/employer/notices.html
An ICE regulation (not in effect due to litigation) states that 30 days is a reasonable period of time for the employer to make corrections. However, the SSA no-match letters themselves state to look into the problem and make corrections online with their BSO (Business Services Online) within 60 days. The DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices recommends that employers provide employees a “reasonable period of time” to correct their information with SSA, without specifying how long is “reasonable”. The DOJ cautions that employers must not use a no-match letter as a basis to terminate, suspend or take any other adverse action against an employee. The employee must be provided the opportunity to fix the problem. See, https://www.justice.gov/sites/default/files/crt/legacy/2014/12/04/Employers.pdf
If it is not so simple as a typo or name change, the employer must request the employee to follow up with the appropriate agency, either the SSA or with DHS. One possibility is that the employee has been using an ITIN (Individual Taxpayer Identification Number). An ITIN is a number allowing a nonresident alien who lacks a social security number, to pay their taxes to the IRS. See, https://www.irs.gov/individuals/individual-taxpayer-identification-number. It is a legitimate number, but it cannot be used as a substitute for a social security number. If the work is already performed, then the worker would have to be paid as an independent contractor and issued a 1099 at the end of the year rather than a Form W-2. The employer should consult a CPA or tax lawyer to figure out the best course. However the employer must keep in mind that an ITIN number does not give the employee work authorization, and that ICE may deem them to have had constructive knowledge that their worker lacked work authorization. The employer could end up having to pay very high fines for employing an unauthorized worker.
Many employers feel hard-pressed to find US workers. Rather than pay an undocumented person on the books, in addition to hiring unauthorized workers, the employers also pay the workers in cash and do not report part of their income to the IRS. This makes the situation even worse for the employer. Not only are they knowingly employing an unauthorized worker, but the employer may be charged with tax evasion and money laundering, and face criminal charges. For example, in 2016, two owners of a dry cleaners in New Jersey, were sentenced to more than one year prison and three years supervised release for failing to report the wages of undocumented workers and failing to pay payroll taxes, as well as for alien harboring, as they had the undocumented workers live in a house that they owned. See, https://www.irs.gov/compliance/criminal-investigation/examples-of-employment-tax-fraud-investigations-fiscal-year-2016 . So, it is always better to pay on the books and report all income to the IRS.
On the employee’s side, there are grave consequences to using someone else’s social security number and ID. Number one, if the employee mis-represents himself as a US citizen on the Form I-9, ICE can charge him with inadmissibility for which there is currently no waiver. See, INA 212(a)(6)(C)(ii)(I). Misrepresenting oneself as a U.S. citizen is a permanent bar to receiving any immigration benefit, other than perhaps withholding under the Convention Against Torture. Or, if the employee misrepresents himself as a permanent resident or as having work authorization, he again will be subject to another ground of inadmissibility for fraud and misrepresentation in procuring an immigration benefit. See, INA (212)(a)(6)(C)(i). There is a waiver available, however, only if the employee can show extreme hardship to a US citizen or permanent resident spouse or parent should they be deported from the U.S. Having US citizen children does not qualify you for a fraud waiver.
Second, the worst part about using someone else’s social security number is that you may be charged under federal criminal statutes. 18 USC 1546 applies to fraud and misuse of visa and immigration documents. 18 USC 1546(b) criminalizes the use of someone else’s ID, including for the purpose of showing work authorization.
A case currently pending before the U.S. Supreme Court, Kansas v. Garcia, Docket No. 17-834, involves several undocumented workers who used someone else’s ID in filling out I-9 forms. The lead respondent, Ramiro Garcia, a cook for a restaurant, Bonefish Grill, used someone else’s social security number when filling the I-9, W-2 and state K-4 Forms required upon hiring. The State of Kansas criminally charged Mr. Garcia with using a social security number belonging to another person in order to establish work authorization. A state jury convicted him of identity theft. The other respondents had similar stories.
The Kansas Supreme Court however, held that federal law expressly preempts state prosecutions of individuals who use another’s ID to show that federal law authorizes them to work, relying on the plain language of 8 U.S.C. 1324a(b)(5): “It is Congress’ plain and clear expression of its intent to preempt the use of the I-9 form and any information contained in the I-9 for purposes other that those listed in Section 1324a(b)(5)”. The Kansas Supreme Court held that federal law precludes a state from using not just the I-9 form but also all the information contained in the I-9 form as the basis for a state identity theft prosecution.
The question before the US Supreme Court is “(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and (2) whether the Immigration Reform and Control Act impliedly preempts Kansas’ prosecution of respondents” See, https://www.scotusblog.com/case-files/cases/kansas-v-garcia/
The third serious consequence is that workers who use another’s social security number or just an incorrect social security number, will not have their wages credited towards social security benefits later on when they retire. Thus, they will be missing out on a possibly large amount of money in their old age. They will also not be eligible for an exemption from the affidavit of support requirements, which provide that beneficiaries with at least ten years of social security-reported income are exempt from having the petitioner in a family petition filing an affidavit of support on their behalf.
Copyright 2019 © Heidi J Meyers, all rights reserved.