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Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28400
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I am an Italian citizen, born on 7/18/1959, (Italian

Customer Question

I am an Italian citizen, born on 7/18/1959, (Italian Passport). I would like to bring to your attention my case, which I assume is quite complicated. I like to have your opinion in seeing a way for a positive solution. If you can see a way, I would like to know if you can handle the Case, and having an idea of the costs for following the complete matter.
Facts:
In October 1984, I married an American citizen in Pensacola beach, FL but, right after that, we moved to Italy where we lived until year 2000.
In year 2000 my wife was diagnosed having MS disease and because of that needed to be closer to her parents. We decided to move back to USA (Bangor, Maine), with our two children. I obtained a green card thru the US consulate in Italy. I came into the country in July 2000, but in the earlier August of the same year, I went back to Switzerland. The end of the same year we divorced with a judgement of divorce from district court of Bangor, ME.
In year 2010, shortly before the expiration of the green card, I contacted the USA consulate in Switzerland. Because I was living long in Europe they suggested to me to send back the expired green card by filling out the form L-470. I did that on September 2010.
At the beginning of this year (2015), I have been in contact with an American woman that I met in Europe in 1982. I already had a relation with her at that time. We planned to get married in 1982, even filed the required forms through the Italian US consulate. We were both young at the time and her parents were not supportive so we did not go through with the marriage at that time. Over the last year, we have been in communication with each other and have found we still have the strong love for each other as we did years ago. She came to visit me in Europe in August of this year (2015), and this is when we realized our dreams from the past could be completed. My girlfriend’s father recently died and she is working in the U.S. and taking care of the paperwork and house that revolves around his death. We decided it would be best for me to come to visit her and help her with these issues – the house and any other paperwork.
In June 2015, I asked the USA consulate in Switzerland to ask how I could make this move to the U.S. I asked about the possibility to have a renewal of my green card, and they answered to me that I have to reapply for a new one because I returned the old one which was issued under different rules than green cards are currently.
Finally, I came back into the USA on October 6 2015, to Philadelphia, with an ESTA visa as a tourist and now I have time to stay until December 31.My girlfriend and I plan to get married over Thanksgiving this year.
We want to get through this issue in the best possible way without complications. First, we want to avoid being sent outside the country waiting for different visa as a husband. The separation of time and the costs that this would incur are a financial and emotional hardship for both of us. Secondly, I need to know how to reapply for a new green card. Because the prior green card is documented, I am unsure how to change my status and go through the process appropriately.
In both cases, I find it hard to explain to Immigration, that the abandonment of the green card was not due to the fact that I don’t want or like to be in the U.S. anymore or for reasons that were red flags for immigration, but simply the legitimate reason that I was living many years abroad, without a need of having a green card and it expired during this time. This impression was enhanced when they gave me a hard time at the Philadelphia airport by putting me thru a double check and questioning me and my girlfriend about my stay here for the next three months.
To clarify, I want to add that I have immaculate clean records both in US as well as in Europe, not having being charged of any fine or issue. I was previously eligible for the green card without any problems and remain with such standards.
I will appreciate and be very thankful for any kind of help or suggestion you will give to me, and be very pleased if you could represent me in this Case.
Submitted: 1 year ago.
Category: Immigration Law
Expert:  Judith Ludwic replied 1 year ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer.

Your old permanent resident status is abandoned by action of law after being outside the US for more than one year as well as you having filed the I-407.

But that doesn't matter. You can have your new spouse file all over again for you fresh after you marry at Thanksgiving.

You just have to make sure when you and she go on an interview that you make it clear you had no intention when you entered 10/06 to marry and immigrate, you only came here to visit an old friend. It was not until after you and she spent much time together that you decided that you wanted to marry her and she wanted to marry you. It happened very suddenly this love becoming so strong.

It is helpful if you still have a residence back in Europe and still have your assets and ties there. That shows you really intended to return there after your ESTA visit.

Here is what you will need: Find instructions for each here:

http://www.uscis.gov/forms

I-130 Immigrant Petition (signed by US citizen spouse)

I-485 Application for Adjustment of Status (signed by alien)

I-765 Employment Authorization Application (signed by alien)

I-131 Application for Travel Document (signed by alien- this document permits alien to travel during the pendency of their "green card" case)

G-325A Biographic Sheet (one for alien and one for their spouse)

G-1145

A medical examination in a sealed envelope performed by a civil surgeon (find one here: https://egov.uscis.gov/crisgwi/go?action=offices.type&OfficeLocator.office_type=CIV

I-864 Affidavit of Support

Two passport sized photos of spouse

Six passport size photos of alien

Copy of alien’s passport including all blank pages and I-94

Copy of US citizen birth certificate, natz cert or passport

Copy of spouse's birth certificate

Copy of any divorce decrees

Copy of marriage certificate

One check for the I-130 in the amount of $420

One check for the I-485/765/131 in the amount of $1,070

The packet get filed at the PO box on Page 6 of the instructions

http://www.uscis.gov/files/form/i-485instr.pdf

You can read about the process at this site

http://www.uscis.gov/green-card/green-card-through-family/green-card-immediate-relative-us-citizen

Conditional Resident status is granted for 2 years. You and your spouse have to file a joint petition to remove this conditional status within 90 days of the 2nd anniversary date of the adjustment approval.

http://www.uscis.gov/green-card/after-green-card-granted/conditional-permanent-residence

Matter of Cavazos, 17 I&N Dec.215 (BIA 1980)

http://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf

That case held that the presumption of immigrant intent does not apply to immediate relatives if adjustment is filed after 60 days.

However, that does not mean that the USCIS cannot look at other facts and they have many resources available to investigate whether there was a fraud or misrepresentation to the CBP when questioned at entry. So for example, if the CPB officer asked your father why he was coming and if he was going back home and he answered "yes" but had abandoned all his ties to his home country then the USCIS could consider his statements as being a misrepresentation or fraudulent. So the adjustment could be denied on that basis and not on the immigrant intent issue. But if you still have a residence abroad, bank accounts, other ties, such as an automobile, business interests, that is proof you intended to go back to Europe and that you and she just became overwhelmed by your strong love after you came on this trip.

You can remain in the US while the new application is pending until you have your interview.

You can get a work permit and permission to travel in about 90 days after you file. You cannot leave the US until you have that permission to travel.

In about 6 months you and your wife will be called in for a joint interview and that is when you make it clear you came on holiday after all these years living abroad and never intended to get married and stay except the love grew and you changed your mind.

I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
This did not address the concerns I have because they already questioned me at the airport when entering. They questioned why I was staying for 90 days -- it seemed to them it was a long vacation. I spent two hours with the immigration officer and it seemed he was convinced that I was here to stay. They wanted to send me back at the border. Also, how can they determine how much time is enough time to decide on marriage after visiting when your visiting visa is only 90 days? I'm assuming an attorney will help us in this process. But what kind and about how much would this cost? Are there special kinds of immigration attorneys that I should seek? Originally, when my girlfriend questioned you several months ago on this site, you said that the fact that she visited in the summer, and we've seen each other more than once in a two year time period, would prove that we have a legitimate relationship. We were also told that perhaps I need to go visit Canada for a few days and then re-enter. I don't want to be stopped at the border and not allowed in again.
Expert:  Judith Ludwic replied 1 year ago.

It would have been helpful for you to disclose all of this to me before I provided you an answer.

I don't know who told you to go to Canada but that was not a good suggestion. All that does is set you up for fraud if you marry within 60 days of coming back in.

I would suggest you retain an attorney.

It is not the amount of time you are here before you decide to marry as much as the compelling ties you kept to your home country.

You have not given me any of that info and that is critical if you look at the information I provided you about the case

Matter of Cavazos, 17 I&N Dec.215 (BIA 1980)

http://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf

That case held that the presumption of immigrant intent does not apply to immediate relatives if adjustment is filed after 60 days.

USCIS will look at other facts and they have many resources available to investigate whether there was a fraud or misrepresentation to the CBP when questioned at entry. So for example, if the CPB officer asked you why you coming and if you were going back home and you answered "yes" but had abandoned all ties to home country then the USCIS could consider your statements as being a misrepresentation or fraudulent.

I know nothing about your compelling ties you kept to your home country so it is very difficult for me to assess your particular situation and can only give general information.

If you want to talk on the phone it would give me more information that I need. I will send you an offer for that and you can think about it.

Judith

Expert:  Judith Ludwic replied 1 year ago.

The offer will be in your email box.

Judith

Customer: replied 1 year ago.
It is obvious you did not read the full letter I wrote or you would've seen on the bottom what I clarified.
Expert:  Judith Ludwic replied 1 year ago.

Sir, I did read the following:

"This impression was enhanced when they gave me a hard time at the Philadelphia airport by putting me thru a double check and questioning me and my girlfriend about my stay here for the next three months. "

I addressed that in my answer:

"USCIS will look at other facts and they have many resources available to investigate whether there was a fraud or misrepresentation to the CBP when questioned at entry. So for example, if the CPB officer asked you why you coming and if you were going back home and you answered "yes" but had abandoned all ties to home country then the USCIS could consider your statements as being a misrepresentation or fraudulent."

You did not tell me you were sent back to secondary inspection for 2 hours and they wanted to send you back. That is a lot more serious than "a double check and questioning me and my girlfriend about my stay here for the next three months. "

Nothing there was that they wanted to return you to your home country. That is very serious.

Unfortunately, now you have a record with written Q&A and if you stay and file for adjustment of status they can accuse you of fraud at entry and create a permanent bar.

Knowing of that 2 hour session and the Customs telling you they wanted to return you home puts an entire different light on this matter and it would not be recommended to adjust status and risk a finding of fraud.

Judith

Customer: replied 1 year ago.
Are you saying even with an attorney's help? We know each other for 30+years. We were going to get married before. The Swiss embassy gave him the ESTA visa. Obviously he passed that test. My sister works for the FBI and I have worked on Capitol Hill. We have consulted with them before this visit since we were concerned about the former Green Card issue. It was a surprise to be met with such harassing and accusatory methods at the border. We are looking for a specialized attorney who can help us with this. Obviously we don't have much time and are looking for immediate consultation. So please -- answer the question -- what kind of specialized attorney would we need?
Expert:  Judith Ludwic replied 1 year ago.

There is no test to getting an ESTA, only that you have not had a visa denied or canceled and have no criminal history.

The Swiss don't approve the ESTA, that is the Dept of Homeland Security.

The problem is that you cannot use ESTA/VWP as a means to immigrate to the US. It is for the purpose of being a tourist and having an immigrant intent is contrary to the purpose of admission. That is why a return ticket is also a requirement.

Generally people entering on ESTA are seldom sent back to secondary inspection. If he entered with his US citizen girlfriend that would trigger a flag that he may have an intent to marry and stay.

It sounds from what was written here that he entered with his GF and that is what then raised the suspicions and caused the referral to secondary.

When one is questioned in secondary the agent makes a history of the Q&A in his electronic file regarding the suspicion of intent to immigrate on a tourist status.

Therefore, if he goes to apply for adjustment of status the USCIS examiner will review that arrival record and the notes contained there in. If it appears to the examiner that he stated he had no intention to immigrate and remain in the US and then within 60-90 days he marries and files for adjustment then there is a presumption that he misrepresented the purpose of his entry while being interrogated in secondary.

If USCIS finds a presumption of fraud or misrepresentation to enter the US that creates a permanent bar to ever entering the US again.

It would be very difficult to counter the statements he made to the agent at the POE regarding why he was coming here if he boom marries and files adjustment of status.

Of course the decision is his to do so but it needs to be done with eyes wide open to the risk of a permanent bar if he is found to have lied.

Since I assume you the girlfriend is writing this thread for this last reply I will give you the section of the law and some information about the finding of fraud or misrepresentation. As a hill staffer, you will be able to understand the seriousness of it and the difficulty you would face to get a waiver of that finding. Here is a very comprehensive synopsis

http://www.justice.gov/eoir/immigration-judge-benchbook-212i-waiver

I am also assuming you are in the WDC area. There are many very good immigration attorneys locally for you to retain. I practiced there for over 34 years and just recently moved to FL

I would suggest you retain one of the "Super Lawyers" They are immigration attorneys that their colleagues and peers have voted as the best and most well respected in the field.

http://attorneys.superlawyers.com/immigration/washington-dc/washington/

The actual filing of the forms is not complicated. It is what happens after the USCIS examiner reviews the arrival history notes entered by the agent at the POE. A good lawyer will have anticipated this issue and will be ready for it by having gathered evidence to rebut the presumption, such as that which I mentioned above.....

Matter of Cavazos, 17 I&N Dec.215 (BIA 1980)

http://www.justice.gov/sites/default/files/eoir/legacy/2012/08/17/2750.pdf

That case held that the presumption of immigrant intent does not apply to immediate relatives if adjustment is filed after 60 days.

However, that does not mean that the USCIS cannot look at other facts and they have many resources available to investigate whether there was a fraud or misrepresentation to the CBP when questioned at entry. So for example, if the CPB officer asked your father why he was coming and if he was going back home and he answered "yes" but had abandoned all his ties to his home country then the USCIS could consider his statements as being a misrepresentation or fraudulent. So the adjustment could be denied on that basis and not on the immigrant intent issue. But if you still have a residence abroad, bank accounts, other ties, such as an automobile, business interests, that is proof you intended to go back to Europe and that you and she just became overwhelmed by your strong love after you came on this trip.

So the issue is not about how long you have known each other and the bona fides of your relationship. The issue is what was said at the POE in secondary inspection regarding intent to return to home country at end of visit and a presumption that is raised if he marries and files for adjustment so soon. The proof he has to support his rebuttal that he really had every intent to go back home when he entered the country and that he has evidence of his compelling ties, such as he owned and continues to own a business that requires him to be there to run; he owns his residence abroad, he has all his financial and social ties there in that country, etc.

I would suggest that you retain an attorney who is experienced in hardship waivers in the event he is found inadmissible based on misrepresentation during that POE inquiry.

I am a very conservative in my approach and depending on how that interview in secondary went down, I might suggest that the better option is to face a separation while doing consular processing of an immigrant visa rather than risk a finding of fraud. It is advisable to have him put down on paper all the questions and answers that happened in secondary. Memory fades so reduce that encounter to black and white while the memory is still fresh and he can remember the questions and details of his answer. Trust me, the agent has reduced it to writing so he needs to do so.

This will be very valuable to his lawyer he hires.

Let me know what else I can answer for you.

Judith

Customer: replied 1 year ago.
Actually, I live outside of Allentown PA. Thank you for your suggestion of SuperLawyers. I will contact those in my area. I have heard of people who got married and just did not apply for the permanent visa status and continued to use the ESTA. Since they were business consultants, they traveled in and out of the country for many years without ever requesting the change of status. Again -- I am asking -- is this possible if he has already been flagged? I was told marriage and the ESTA visa and permanent status are separate -- because I have a few friends who have never declared the permanent status and are business consultants ... however, from different countries, not Italy ... they are from Kuwait. Maybe the country is different.
Expert:  Judith Ludwic replied 1 year ago.

Again -- I am asking -- is this possible if he has already been flagged? I was told marriage and the ESTA visa and permanent status are separate -- because I have a few friends who have never declared the permanent status and are business consultants ... however, from different countries, not Italy ... they are from Kuwait. Maybe the country is different.

Kuwait does not part of the Visa Waiver Program. They would have to enter with a visa, not ESTA.

Once someone has been flagged they can expect to be questioned in secondary inspection when ever they apply for admission. The agent will look at their travel history, their compelling ties to their home country and the reason for their entry.

Indeed ESTA is entry to the US without a visa for citizens of certain countries for up to 90 days as a visitor for pleasure or business.

A permanent resident has declared their immigrant intent and gone through a process to hold a permanent resident visa.

Apples and oranges.

I see this is the first time you are using JA and I am eager to make this a positive experience for you. Please ask follow-up questions if my answer is not clear.
Of course, I am sure you understand your positive rating is very important to me as we are not on salary and that is how we receive compensation, you choosing a smiley face or 3+ stars
In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.

Judith

Customer: replied 1 year ago.
Again, you are not responding to the question. I am talking about people who DO NOT hold a permanent visa who come and go as business consultants on a visiting visa.
Expert:  Judith Ludwic replied 1 year ago.

Obviously there is some miscommunication or misunderstanding.

I did answer your question about those who use visitor status to enter the US.

Here is what I wrote, please explain how this fails to answer your question about those applying for entry as visitors:

Once someone has been flagged they can expect to be questioned in secondary inspection when ever they apply for admission. The agent will look at their travel history, their compelling ties to their home country and the reason for their entry.

Indeed ESTA is entry to the US without a visa for citizens of certain countries for up to 90 days as a visitor for pleasure or business.