Does unlawful presence rule apply for conditional permanent residents? Jul 2018 I came to the U.S. with a K1 visa. Sep 2018. I married a U.S. citizen. May 2019. I got a conditional 2 year green card that expires in May 2021. May 2020. I divorced but I did not remove the conditional status. Did not apply for any documents. Nov 2021. I went back to my country with an expired conditional green card. Now I am in my country. I have an expired conditional green card. I did not apply for any documents. Question: Since my conditional green card expired in May 2021, and I stayed in the U.S. until Nov 2021, does all that time May-Nov count as “unlawful presence”? Or does “unlawful presence” not apply for permanent residents? Question: Am I going to have issues going back to the U.S. with my expired conditional green card, if I decide to go back right now?
According to USCIS Adjudicator's Field Manual chapter 40.9.2(b)(1)(C)(ii) (on page 73-74 of this PDF), it seems that unlawful presence began to accrue when your 2-year green card expired: The alien begins to accrue unlawful presence as of the date of the second anniversary of the alien’s lawful admission for permanent residence. See id . Also, failure to appear for the personal interview that may be required by USCIS in relation to the Form I-751 or I-829 petition results in the automatic termination of the conditional legal permanent resident status, unless the parties establish good cause for the failure to appear. In chapter 40.9.2(b)(1)(C)(iii) (on page 74), it says that if you make a late filing of Removal of Conditions and it is approved, you are deemed to not have accrued unlawful presence, but if it is denied, you are still considered to have accrued unlawful presence from the expiration of your 2 years. If the late filed petition is accepted and approved, no unlawful presence time will be deemed to have accrued. [...] If, however, the late filing is rejected, the alien begins to accrue unlawful presence time on the date his or her status as a conditional resident automatically terminated.
A few possible reasons it could be illegal (on an issue spotting basis, not a careful analysis of each possible reason): The EO is intended to discriminate on the basis of religion and in fact does so in violation of the 1st Amendment to the United States Constitution. The EO is intended to unlawfully discriminate based upon race or ethnicity in violation of U.S. statutes or the 14th Amendment. The EO was adopted without observing the notice and hearing requirements of the Administrative Procedure Act. The EO took effect prematurely because it was not duly published in the Federal Register for the time period required by law, or was otherwise insufficiently promulgated. The EO repeals other regulations currently in force in violation of the Administrative Procedures Act. The EO improperly disturbs the vested, albeit limited, rights of existing visa holders (or visa applicants) without due process of law, and/or in violation of unenumerated 10th Amendment rights. Refugee visa applicants under an already adopted regulation are entitled to an individualized consideration of their application as a matter of due process and the EO amounts to an ex post facto law as applied to people already in the application process under that regulation. The EO improperly deprives people who purchased non-refundable plane tickets in reasonable reliance of their visa rights which were not revocable under any law in place at the time those tickets were purchased of a property right in those plane tickets without compensation or due process of law under the 5th Amendment. The EO is void for vagueness as the ambiguities in its drafting makes it impossible to determine who is and is not affected by the EO and in what manner. There is a conflict in the immigration statutes between statutory provisions and treaty obligations related to refugees, and the regulation implementing a particular section of the immigration law's grant of regulatory authority, and the refugee protections must prevail. A person claiming to be a refugee has a due process right to individualized consideration of their circumstances, either by statute, by treaty, or under the constitution, which the EO does not respect. The treatment of dual citizens under the EO either is contrary to statutory immigration law or to a treaty or to the U.S. Constitution and customary international law. The EO violates one or more treaties between affected countries and the United States regarding immigration. The scope and terms of the EO exceed the authority granted to the President by the section of the immigration statutes relied upon for authority to pass the EO. The administration failed to articulate a rational basis for distinguishing between nations included in the ban and nations not included in support of the EO as required by the Administrative Procedures Act. There is no rational basis for distinguishing between nations included in the ban and nations not included as required by the U.S. Constitution (a much weaker test since it allows for post hoc rationalizations). Authority to implement the relevant section of the immigration law is vested in one or more officials at the United States Department of State, rather than the President directly, and none of those officials approved the EO. The military interpreters and their families may have a contract with the U.S. government as part of their employment that gives them a right to a visa, in which case the EO would be a law impairing contracts in violation of the U.S. Constitution, as applied to them. Some of the immigrants may need to accompany U.S. citizen children in order for the children to exercise the childrens' rights to enter the country and as applied the EO may violate the U.S. citizen childrens' rights. The CBP may be incorrectly interpreting the EO (which even the administration is not clear about) and therefore violating the law as applied because the EO does not actually authorize their action or because the way that they interpreted the EO was an abuse of their discretion. The manner in which the EO was implemented (e.g. long periods of time in handcuffs for civilians not accused of any crime and with no ability to foresee that they would be denied entry, separating young children from parents, etc.) may have been an unreasonable seizure as applied, even if detention per se was authorized. The 4th Amendment requires that searches and seizures be reasonable in the manner that they are carried out even if the search or seizure is itself authorized by law. UPDATE February 2, 2017: A federal judge in California has found that at least some of these reasons have merit and has stayed the EO and set an expedited hearing and briefing schedule on whether the injunction against the EO should remain in force. UPDATE AND EPILOGUE June 28, 2018: The final version of the ban was ultimately upheld by the U.S. Supreme Court in the case of Trump v. Hawaii on June 26, 2018 in a 5-4 decision. Litigation of the version of the ban in the OP was dismissed as moot when it was withdrawn and replaced with a similar but newer version of the EO. The four justices in the dissent rely on the first reason given, as did lower courts in the case and in parallel litigation. A core distinction between the majority and the dissent is the weight given by statements made by President Trump about the policy, and how much deference to give to the government's reasons for the policy offered up in court. Justice Neil Gorsuch, who cast a deciding vote in the case, took office April 10, 2017, after this answer and the first update to this answer were written.
Concerning the requirement to interview US workers before hiring workers for H-1B visas, this is covered in 8 USC §1182 (n)(1)(G)(i): (i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the employer, prior to filing the application— (I) has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants under subparagraph (A), United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought; and (II) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought. &quot;Industry-wide standards&quot; for the recruitment process typically means posting advertisements and conducting job interviews. Of course, if the company never intended to hire anyone but the H-1B candidate, that's not really &quot;good faith&quot;, but this can be difficult for the feds to prove. Note that this requirement doesn't apply to all employers. Section (E)(ii) says that this rule only applies to those employers who are &quot;H–1B-dependent&quot; (which amounts to having a certain number of employees working under H–1B visas) and to those who have been caught willfully violating these rules within the past five years. I am unsure about the rules surrounding federal contracts, so folks should feel free to edit this answer to include such information.
The standard of proof for a criminal conviction is the same. So they would similarly need to prove beyond a reasonable doubt to convict the foreign national of a crime. But deportation is not a criminal proceeding, and has a different standard of proof. (In deportation you also don't have criminal defendant rights like right to an attorney if you can't afford one.) I believe the standard is "clear and convincing evidence".
You don't need to "report" it to anyone in the US or do anything else. The US doesn't have any national registry of marriage. Any marriage or divorce conducted anywhere in the world is automatically recognized anywhere in the US (with some exceptions like polygamous marriages); the same is true in many other countries. How does the U.S. find out, for tax or insurance purposes? Obviously there's a little box that says [] Married but how would they know if I lied if I'm not registered in the United States? They don't, and don't need to. (The same is true for marriages in the US -- they don't directly "know".) You are required to use an appropriate filing status for your marriage status at the end of the year for each year's tax returns. If you don't, you are committing fraud. There are lots of things that you can intentionally lie about on tax returns, and they may not immediately "find out"; but when they do, you are in big trouble. Am I legally required to report it when I return? No. Would the Canadian/provincial government inform the U.S./state government? No.
I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case.
The only one I can find so far relates to a Brazilian citizen getting married abroad, called a: Consular Declaration of Civil Status These are issued by the Consular Authority to: Brazilian citizens who intend to marry before a foreign authority within their jurisdiction. The document is issued in English. Source: gov.br (I have yet to find if a comparable certificate is available in-country, for marriage or otherwise, but none of the official guidance sites I have trawled though mention it)
An individual obtains due process rights upon entering into the United States. For a recent write-up on this question, see this piece at Reason. The people Trump is talking about generally aren't being denied admission at an established, legal border crossing; they're coming across wherever they can get through, and only being discovered by federal agents thereafter. Because they're already in the United States, they have due process rights. As for cross-border interactions with ICE or CBP, the extent of due process protections is still an open question. SCOTUS took it up last year, but it kicked the case back to a lower court rather than deciding it.