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POSTING DATE: July 26, 2021
Question: I have a question about my sons case. My husband and I came to florida for a visit with my mom who had a heart attack and was in the hospital back in 2000 when my son was just a baby. Family things happened, my mom had an extended illness and we ended staying her here to take care of her. She passed away in 2003. By that time we were already out of status. My husband had started working for my brother who owns a company in Lauderhill and we just made a life here. In 2013 my son was eligible for the daca program so we applied for him and he has been on it ever since. He has graduated from college and has a good job and he and his high school sweetheart have decided to get married. So we are wondering whether he will be able to get his green card once they are married or if he is not qualified because he is on daca. If he can apply for a green card, will he lose his daca status and work permit during the process? Thank you for answering.
2645 Executive Park Drive
Weston, Florida 33331
In a recent Federal court ruling, the judge stuck down Obama’s Deferred Action for Childhood Arrivals (DACA) program, finding that DACA was illegal and that President Obama had exceeded his executive authority in enacting the policy. As part of his ruling, Federal Texas court judge Andrew Hanen ordered the USCIS to stop issuing any new DACA approvals on new applications.
For background, the DACA program was implemented in 2012, under the Obama administration to provide protection to young immigrants brought to the U.S. by their parents before age 16, who had no legal immigration status. Under the policy, young immigrants granted DACA status are allowed to remain in the U.S. legally and live and work, as well as renew status every two years.
Helpful Immigration Tips You Can Use...
Tips On The Important Differences Between Spousal And Fiancé Visas
There is often a lot of confusion and misinformation about the differences between spousal and fiancé visas, which is best and who is eligible? Here’s a quick rundown:
Visa Fiancé Visa:
The K-1 Visa Fiancé Visa is used by U.S. Citizens to bring a foreign fiancé to the U.S. in order to get married within 90 days and file for residency to get a Green Card.
Learn The Secret Code Word For Getting Through To Live Person At USCIS 800#
Let’s face it, once Biden took office in January, he inherited a monumental disaster at the USCIS, resulting from Trump administration policies seemingly aimed at destroying our U.S. immigration system, coupled with the Covid-19 pandemic. Since that time, Biden has installed a new progressive pro-immigration director, issued numerous Executive Actions overturning Trump policies and begun rebuilding the agency. And slowly but surely things will improve, it just takes time to undo the damage and reconstitute operations.
Answer: Great question, yes, DACA (Deferred Action Childhood Arrivals) applicants are eligible to apply for Green Cards just like any other immigrants, as long they entered the U.S. legally and were inspected by an Immigration officer. Since you brought him to the U.S. when you came as visitors, your son entered the U.S. legally. Of course he will need to have his I-94 card in order to prove to the USCIS that he entered the country legally. If he has lost his I-94 card, we can apply for a replacement card on his behalf before filing the Residency application. Once he gets married, we can file his residency adjustment of status application and he can continue to use his current DACA work authorization until his new residency work authorization is approved (which can now take 6-9 months). The residency interview will likely be scheduled in about 12+ months and he should receive his Green Card a few weeks later.
As many have heard, USCIS processing delays are at record levels in part due to past Trump administration policies, and then the pandemic, resulting in nearly double the normal processing times for most cases. And while the Biden administration has taken serious steps to bring adjudications back to normal levels, it will likely take many months if not years for the backlog to be resolved.
However, what most may not be aware of is that there is an immigrant visa backlog for family members stranded outside the U.S., who have approved cases and are just awaiting consular appointments. These cases are so critically delayed, that some estimate that there has been a nearly 70% decrease in the issuance of immigrant visas, with over 500,000 family cases waiting in the queue for an interview, which have already been documentarily qualified by the National Visa Center.
Massive Visa Waiting Lines For Families At U.S. Consulates Caused by Pandemic
Question: I have a question about filing my immigration papers. My wife is sponsoring me but we didn’t file for 2020 taxes yet, we got an extension until I think sept or oct. Will she still be able to sponsor me even though we don’t have that yet? She thinks she might owe some money and we can’t afford to pay the irs right now. We are saving up and hope to have that in a few months. The thing is we don’t want to delay my green card process because I need to get my work permit and drivers license. If we get a cosponsor can we file without the 2020 taxes?
Answer: In Residency cases, Immigration regulations require the Sponsor to provide copies of the most current IRS Tax Returns or IRS transcripts, proving that the required tax return has been filed. However, here is no requirement that taxes for the most recent tax year be filed until the deadline. For instance, for immigration cases filed in 2021, May 17th was the deadline to file taxes, so residency cases filed after May 17 of 2021 should include copies of the 2020 tax return and W-2. The fact that an extension was filed will not help, since the USCIS requires that the sponsor provide copies of the current tax filing, even when a joint sponsor is used as well. I hope this was helpful to you.
To be eligible, applicants must have arrived in the U.S. by June 15, 2007, before the age of 16 and have continuously lived in the country since that time. The program applies to young immigrants who were under age 30 (at the time of the program's implementation), who have either graduated high school, are currently in school (or have a GED certificate) or have been honorably discharged from the U.S. armed forces. Estimates are that this program may assist some 800,000 young immigrants living in the U.S., who are a vital asset to our communities and economy as a whole.
Shortly following Obama’s creation of the program in 2012, many Republicans held states, including Texas sued to stop its implementation. And while the policy was briefly paused, courts allowed it to resume pending final court decisions on the matter. However, not surprisingly, once Trump took office in 2017, he cancelled the DACA program, which prompted lawsuits which eventually made it to the Supreme Court. In 2020, the majority of the court sided in favor of DACA, ruling that the Trump administration's plan to dismantle the program were not procedurally correct, in that they did not provide detailed justifications for canceling DACA, thereby rendering the cancellation "arbitrary and capricious." The court did not make a decision as to whether DACA was legal or not, just on the matter of Trump’s procedural efforts to cancel it.
Many believed that given the courts ruling, Congress would soon take up the matter and finally pass legislation granting young DACA holders permanent status and a path to citizenship. Biden vowed to take all steps possible to protect the program and immediately issued an executive order directing the DHS to “protect and fortify” DACA. The administration further expressed its support for permanent Congressional legislation to give young immigrants green cards and expedited citizenship. The problem is that the President alone cannot grant permanent status or citizenship to DACA holders unilaterally. If Biden did try to enact such a policy, the courts would stop it in its tracks. So, with this recent court decision against DACA, where do we go from here?
First, the Biden administration plans to appeal the decision, but that process will take time and will not provide any immediate relief. On the legislative front, Congressional Democrats have indicated they may try to include DACA relief through the budget reconciliation process in September, however passage is not certain. In the short term, in response to the court order, the Biden administration has decided to continue to accept the filing of both initial and renewal DACA requests, as well as accompanying requests for employment authorization. The USCIS will process renewals and issue work permits for two years, but is required to pause processing of first time applications pending further court or legislative developments. Hopefully there will be some movement in congress on the issue in the next few months. Stay tuned…..
Read the USCIS Response:
The State Department is considering options to reduce the backlog and schedule more interviews; however, country conditions often make it impossible. Alternatives suggested by experts include scheduling video interviews and reducing technical requirements which often cause unnecessary delays. But for now, thousands of spouses, minor children and parents whose I-130 cases were approved in 2019, 2020 and now 2021, continue to wait for immigrant visa appointments with no assurances of how much longer they will have to wait.
As a result, U.S. citizens and Residents need to realize that sponsoring immediate relatives will now take double and maybe triple the time that it did pre-pandemic. A typical spousal case which would normally only take 12+ months may now take 2+ years or more. The same is true for minor children and parents. The only way to avoid these long consular processing delays is for qualifying family members with visas who are legally inside the U.S. is to file for adjustment of status, where the process takes between 12-14+ months, depending upon where the immigrant resides. Unfortunately, in most cases, family members do not have U.S. visas and don’t have the luxury of coming to the U.S. to file for residency. In such cases, the only solution is for U.S. citizens and residents to file family petitions as soon as possible, in anticipation of delays. This is especially critical for Residents sponsoring minor children who may age out after turning age 21 due to consular delays.
Under U.S. regulations, only U.S. citizens are allowed to vote and voter registration is legally limited only to those who are either born in the U.S. or naturalized. As part of the citizenship process to become a U.S. citizen, residents who are applying for naturalization must confirm that they never registered to vote, in order to meet the good moral character (GMC) requirement for citizenship.
Through the years, some residents have been denied U.S. citizenship because their names appeared on the voter registration rolls, however, in most cases, residents never intentionally registered and are wholly unaware that they have been inadvertently registered and only find out that they are included on the list of registered voters once the USCIS adjudicating officer informs them that they are ineligible to obtain U.S. citizenship.
USCIS Announces More Lenient Naturalization Policy
For Residents Mistakenly Registered To Vote
The most common cause of inadvertent voter registration is the National Voter Registration Act of 1993, (more commonly referred to as the Motor Voter law), which requires states to provide eligible voters with the opportunity to register to vote when applying for a driver’s license or state ID. Checking off the wrong box or having a driver’s license employee enter the wrong information in the motor vehicle computer is all it takes to register an individual who may not even know that has happened.
The USCIS now recognizes this situation and has provided a clarification about the agency’s policy on the effect of Voter Registration on Naturalization eligibility. Under the new policy, individuals who unknowingly or unwilfully registers to vote, will no longer be penalized and the USCIS will not consider a resident to have unlawfully registered to vote if he or she did not personally complete or sign the voter registration section (including electronic signature, if applicable) in the relevant motor vehicle or state benefit application.
Question: I live in the Bahamas and have my elder sister who is a us citizen living in florida willing to sponsor me. I am wondering if I can come up to the us and she can file for me there. If so, can I get a work permit and stay while waiting for the process? How long will it take to get a green card. I have been hearing so many things about such cases and don’t know who to believe and I just want to know the real facts so we can plan accordingly.
Answer: As long as your sister is a U.S. Citizen, she can sponsor you to immigrate to the U.S.. However, there are long lines in most family immigration categories, including siblings. For instance, a brother or sister and his or her family must wait a minimum of approximately 14 years or more, while nationals of other countries like Mexico must wait 22+ plus years or so. The reason siblings have to wait so long is simple – there are only about 65,000 Immigrant Visas per year for brothers and sisters of U.S. Citizens and this includes Immigrant visas not only for siblings, but for their spouses and all minor children (under the technical age 21 at the time of immigrating). However each year there are more applications than there are visas available, so they are 14 years behind on visa availability. As a result, sibling who are sponsored by their U.S. citizen brothers or sisters must wait in line in order to immigrate to the U.S.. Current immigration laws do not allow them to come and live and work in the U.S. until the process is complete. So in your case, even if you come to the U.S. and your sister files for you, you will not be allowed to stay and live and work here legally. You must return home before your I-94 expires or you will become ineligible to obtain your green card when the time comes.
However, one of the worst, yet least publicized measures taken by the Trump administration is implementation of the USCIS Interactive Voice Response Telephone System in mid-2020.
This new system has nearly eliminated the ability of callers to speak with a live agent at the USCIS. It’s essentially a virtual “wall” between immigrants and the USCIS. For those unfamiliar with the system, after dialing the 800#, one can spend hours calling and recalling the USCIS in frustration and despair, forced to answer questions from the automated attendant, only to have the attendant say “it looks like I can’t help you, so I will end the call”. When customers call with problems and need to speak to a human in order to resolve the issue, the logical response when queried by the automated attendant would be to ask to speak with an agent or representative, of course instead, this is a dead end which will eventually lead to the call being automatically terminated.
But don’t worry, at least for now, there is a quick way to bypass the automated system and speak to a live agent. To get there, dial the USCIS at: 800-375-5283, choose English or Spanish, when the automated attendant asks you what you are calling about, just say "technical support" and then choose the second option.
My sincere hope is that the Biden administration will terminate this disastrous Interactive Voice Response Telephone System and go back to the old automated system which let you speak to a representative fairly easily. But for now, you know the secret code word, good luck!
From that point, the residency process can take another year or so for the foreign spouse to actually receive his or her green card. Importantly, U.S. residents, Green Card holders cannot file for a fiancé visa, only U.S. citizens can. The process for the fiancée visa alone can take up to ten months for the K-1 interview at the U.S. consulate due to Covid-19 related delays. Then another year for the actual residency process inside the U.S..
A Spousal visa is used by both U.S. Citizens and U.S. Residents to bring a foreign spouse to the U.S. as a U.S. Resident, without the need to file for residency once they arrive in the U.S.. Spouses actually obtain U.S. Residency the moment they enter the U.S. at the airport or port of entry, and border officials review their immigrant visa documents and put an order in the USCIS system for production of the new resident’s Green Card right then and there upon their arrival. They usually receive their actual Green Card in about 30-60 days or so after entering the U.S.. Once a foreign spouse has been a resident for at least two years and nine months, he or she is eligible to file for early naturalization.
So which route is better? Is it best to bring a fiancé to the U.S. and file for residency or just get married and bring your spouse to the U.S. as a resident? Well, in the old days, the fiancé visa process was pretty quick, about three months for approval, then a quick interview at the consulate abroad and once the couple got married and filed for the new spouse’s residency, he or she could get their Green Card in as little as six months or so. But these days, the fiancé visa process can take upwards of eight months or more to be approved, then another six months to get the interview at the consulate abroad. Then once the fiancé comes to the U.S. and the couple marries, another possible year+ to get a Green Card, so that is about two years or so for the process. Contrast that with a spousal case, where the U.S. Citizen and foreign spouse get married and once the immigration petition is filed, it takes about twelve+ months for approval and perhaps even another year for a consular interview to be scheduled due to backlogs. The benefit, however is that when the foreign spouse is issued an immigrant visa, it automatically converts to residency (Green Card) once he or she enters the U.S.. That way, the couple avoids the entire twelve+ months required for the adjustment of status process once the spouse enters the U.S. in order to get the Green Card.
Given the current timing, fiancé visa cases are likely to be faster to get your fiancée into the U.S. and should especially be used when the foreign fiancé has minor children who are over age 18 and still under age 21. It’s a really strange and wonderful fluke in the law. For background, under the “Immediate Relative” law, a minor child of foreign spouse qualifies as a “Step-child” which can be sponsored by the U.S. Citizen or Resident, as long as the marriage to the child’s parent took place before the child turned age 18. One day over age 18 and the child loses the ability to obtain Residency from the Stepparent. But, under the fiancé visa (K-1), minor children of the fiancé, under age 21 are eligible to be issued a K-2 Visa, which allows them to accompany their parent to the U.S. up until they reach age 21 and obtain a Green Card along with the parent. In this case, there is no requirement that their parent and step parent marry before the child reaches age 18! Strange, but true! The most common case would involve a foreign fiancé whose children are age 19 or younger. A 20 year old child would likely not have a chance under the current delays in consular interview scheduling, since the visas must be issued to the K-2 children and they must enter the U.S. before they turn age 21 in order to remain eligible for residency. One day over age 21 and they become ineligible.
As you can see, when minor children are involved, it’s crucial that parents preplan the immigration process very carefully to ensure that children are able to immigrate to the U.S. along with their parent. Once a child turns age 21 (called “aging out”), they fall into an immigration category called F1 (for single children of U.S. Citizens) and F2B (for single children of U.S. Residents), which then takes 5 years waiting time for them to be able to immigrate to the U.S.. That is like an eternity for a family and very tragic indeed.