Discussion Points for Punto Legal –April 23, 2019
1. Adoption Attorney.
About two weeks ago, we got a call from someone seeking to adopt a child who lived in Mexico. Inter-country adoptions have become very complicated by the Hague convention on intercountry adoption. Both the U.S. and Mexico are parties to the treaty. I have located an attorney in Colorado who is knowledgeable in this area. Her name is Kathleen M. Glynn. She is at a law firm in Lakewood and can be contacted at (303) 679-8266.
2. Common law marriage.
Today I want to talk about common law marriage and how it can help you in immigration cases. But first I have to help you understand what a common law marriage is. A common law marriage is marriage in which there is no marriage license; no marriage certificate; and no official marriage ceremony. Only 11 states recognize a common law marriage. Colorado is one of them. If a common law marriage is recognized, then it is a valid, legal marriage, the same as a ceremonial marriage. The federal government and immigration authorities have to recognize the common law marriage if the state does.
How do you show a common law marriage? To prove a common law marriage, you have to show that you live together and hold yourself out as husband and wife. A lot of people live together, but do not hold themselves out as husband and wife. Evidence of holding yourself out as husband and wife includes:
· Having a child together with both names on the birth certificate;
· Filing income taxes together
· Having the spouse’s name on an insurance policy
· Having both names on a lease
· Having both names on school records.
· Declarations from friends and neighbors.
· Taking the husband’s last name
One last point. For a common law marriage to take place, both spouses have to be free to marry and cannot be married to someone else.
How can a common law marriage help someone in an immigration case? Here’s an example: Heriberto is a 45-year-old U.S. citizen. He lives with Maria who is 39. He wants to fix Maria’s papers. To keep things simple, he and Maria get an official marriage. Maria has a 19-year-old son from another relationship. She wants Heriberto to also immigrate her son. If this son was also Heriberto’s son, there would be no problem, but the son is a step-son. If the step-parent, step-child relationship occurred before the son was 18, Heriberto could file immigration papers for him. But Heriberto got married to Maria when the son was 19. But if Heriberto can show that a common law marriage arose before the son turned 18, he could file papers for the son.
Here’s another example. Daniela is a 42-year permanent resident. She has lived with Teo, who entered the U.S. illegally, since 1995. They have three children together. Teo is on all three birth certificates. But the couple has never gotten married. Daniela’s sister is a U.S. citizen. She filed immigration papers for Daniela in 1998 in the brothers and sisters of citizens’ category. This makes Daniela a grandfathered alien, but she already has her papers. Daniela wants to fix Teo’s papers. Is he also a grandfathered alien so he can fix his papers in the U.S.? If he can show a common law marriage existed back in 1998, then he is a derivative beneficiary of the 1998 petition and can fix his papers in the U.S.
I had a question this week about the immigration medical exam for an immigrant fixing his papers in the U.S. He had received a letter from the USCIS telling him he had not submitted a medical exam with his applications and would have to do submit a medical exam at some point in the future.
Almost all applicants for adjustment of status must submit a medical exam at some point in the immigration process. The primary purpose of the exam is to screen immigrants for TB and sexually-transmitted diseases. It also requires that you get certain vaccinations up to date. The medical exam is now valid for 2 years. Now you have three options for submitted the medical exam. First, you can send it in with your application to fix your papers. Second, you can take it to the interview and give it to the interview officer. Or, you can submit it after the interview when you get a request for evidence.
4. Adam Walsh Act.
When I talk to people who want to become permanent residents, I ask them about their criminal history because certain crimes can require waivers or prevent you from immigrating. Sometimes the U.S. relative who is petitioning for his spouse or children wants to know if his criminal history is relevant to the process. I tell them that we have fixed papers even where a citizen -petitioner was in prison. But there is one exception to this rule. A law entitled the Adam Walsh Act, which was passed in 2006. It imposes immigration penalties on U.S. citizens and permanent residents who are convicted of certain crimes against minors. A U.S. citizen who is convicted of a "specified offense against a minor" may be prevented from filing a visa petition on behalf of a close family member. The law provides an exception only if the immigration service makes a discretionary decision that the citizen or permanent resident petitioner does not pose a risk to the petitioned relative despite the conviction. Here is an example: Hector is a U.S. citizen who pled guilty in 2005 to soliciting a 17-year-old girl to engage in sexual conduct. In 2017 he submits a visa petition on behalf of his immigrant wife. Immigration authorities will run a background check on his name to discover the prior conviction. His visa petition will be denied, unless he is able to obtain a waiver based on proving that he is not a danger to his wife. "Specified offense against a minor" includes offenses that are not extremely serious, such as false imprisonment. It is defined as an offense against a victim who has not attained the age of 18 years, which involves any kind of sexual activity with a child.