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New York

ALLAN WERNICK: Wife denied green card petition because of husband’s prior conviction

Q. U.S. Citizenship and Immigration Services denied a green card petition my husband filed for me. The agency denied the petition because my husband has a conviction for having intercourse with a minor, age 16. What are our options?

Diana, New York

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A. Your husband can either file a new petition or file a motion with USCIS to reopen and reconsider the petition denial. If he is a permanent resident, a motion is best since it keeps your place in line for a green card. If he is a U.S. citizen, I suggest filing a new petition. The spouse of a citizen need not wait in a quota line and filing a new petition sometimes yields faster results.

Under the Adam Walsh Act, USCIS can deny a family green card petition filed by permanent residents and U.S. citizens convicted of crimes against minors. The purpose of the Adam Walsh Act is to protect family members like you. So, where the citizen or permanent resident poses no risk to the person trying to get the green card, USCIS can approve the petition despite the petitioner’s conviction.

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Given the nature of your husband’s crime, if you have no children in your household, you have a chance of winning your case. He will want to present evidence that your husband has completed any court required rehabilitation program and evidence of his present good character.

Q. If my wife and I file separate tax returns will immigration deny my green card application? My wife is a U.S. citizen and she is petitioning for permanent residence for me. We are living together, so the papers show the same address.

Michael

A. You and your wife may file separate tax returns without impacting your right to get a green card if you file (married filing separately) and your returns both have the same home address. The returns are good proof that yours is a bona fide or (real) marriage.

A married couple living together may lawfully file separate returns as married filing separately. Sometimes a couple pays less taxes that way. A problem arises when married people living together file separately as “head of household.” A married couple may file as head of household only if they are living apart.

Allan Wernick is an attorney and director of the City University of New York’s Citizenship Now! project. Email questions and comments to questions@allanwernick.com. Follow him on Twitter:
@awernick.


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