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Question: I came up to visit my girlfriend in January for only a few months. The guy at immigration only gave me three months to stay but I didn’t want to argue with him so I just figured I would leave before that time anyways. The problem is I got stuck here because of the virus my flight kept getting cancelled and I was afraid of getting in trouble for overstaying so in put in papers to extend my visit using form i-539 in March. I got a letter from immigration last month asking for more documents and I sent it in a few days later. Now I get this denial letter in the mail and it says I have to leave right away. The thing is that now me and my girl want to get married and she is American so she wants to file for my papers. But we are worried that now since I got denied and it says I have to leave, maybe we cant go through with everything here. Can you please tell us if we get married can I stay here with her and have you do my immigration here in the US even though the letter says I have to leave?
Just days before the much dreaded USCIS fees increase was scheduled to take effect, a federal court issued an order to temporarily block the USCIS from implementing the new fees. The recent court decision blocks the U.S. Citizenship and Immigration Services (USCIS) from implementing a new rule which would have significantly increased most filing fees on October 2, 2020.
The court ruling stems from a law suit filed by the Immigrant Legal Resources Center requesting that a preliminary injunction be issued by the court to prevent the government from going forward with the new fees increase rule.
Federal Court Blocks USCIS Fees Increase!
Immigration Questions: (954) 382-5378
POSTING DATE: October 5, 2020
Answer: Sorry to hear about the denial. The answer is yes, once you get married and your residency case is filed you can legally stay and live in the U.S. during your entire immigration process. There is no requirement for you to leave. All denial letters state that the applicant must leave the U.S., however those who are eligible to file for residency are not required to do so. The fact that you were denied will have no negative effect on your residency case. The first step is to get married, then we will prepare and file your residency package. It takes about two to three weeks to get the USCIS residency receipts, then another six months for your work and travel permit and several more months for your residency interview and green card.
As most are aware, immigration application denials are much more common these days than in the past, and are often issued without even allowing an applicant the chance to provide additional evidence to prove eligibility. Even worse, most applicants receiving denials who have fallen out of legal immigration status, are now also at risk for deportation under the new NTA rule.
As a result, it’s important to understand the options available once a case is denied and whether filing for review is appropriate.
Information Provided On Consular Visa Applications
Has Lasting Consequences For Future Immigration Applications
Many Immigrants believe that the information they provide on the application for a nonimmigrant visa (called DS160) abroad is just a one time thing and somehow disappears once they are issued or denied a U.S. visa.
Most are not aware that the information provided when applying for non-immigrant visas at consulates abroad can later be used against them during an immigrant visa or residency interview.
USCIS Plans To Expand Expedited Processing For More Immigration Applications
As you may have heard, the USCIS has run out of money, is desperate for funding and looking for ways to increase revenues while still restricted by Trump’s policies which reduce overall immigration applications. In a recent effort to provide more funding for the agency, congress passed an act which was signed into law on September 30th, to temporarily fund the USCIS through December 11, 2020.
The bill also included provisions to make changes to its existing premium processing service, including increasing fees and expanding expedited processing for additional types of immigration applications.
As a result, the September 29th decision has temporarily halted the planned USCIS fees increase, because the court found that the new rule was likely unlawful for several reasons: 1) that several of the acting officials at the Department of Homeland Security (DHS) who created the rule were not legally appointed to their roles under federal policies and therefore, had no authority to enact the rule and 2) that the USCIS likely did not follow legal procedures in creating the rule by failing to take into account its negative impact on low income immigrants.
The bad news is that the USCIS is expected to appeal the decision, but the great news is that for now, the current filing fees remain in effect! However, don’t let this temporary reprieve fool you, Trump usually gets his way in the end, so make sure and file your immigration applications early. Don’t wait until the final moment when another federal court reverses the decision and allows the increased fees to go forward! Remember what just happened recently with the Public Charge rule, which is on again….
USCIS Extends Additional Time For Response To Requests Until Jan 2021
As a result of the likely continued difficulties in obtaining documents and information caused by Covid-19, the USCIS has again issued an updated announcement that it is extending the time allowed for applicants and petitioners to respond to letters and notices issued by the agency on pending cases.
Under the new extension policy, an additional 60 calendar days from the deadline date will be given to submit a response to a request or notice issued from March 1st through and Jan. 1, 2021. The additional 60 days applies to:
Requests for Evidence;
Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings and
Filing date requirements for Form I-290B, Notice of Appeal or Motion.
It is important to note, that responses must be received on or before the deadline, not just postmarked by the deadline date. Also, responses to request for additional evidence should always be mailed in one package, not in multiple response filings, since once the USCIS receives the first response, the officer will usually make a decision based upon that response, not on anything received later. Finally, always send responses, appeals, motions via fed-ex or another mail service, overnight.
Question: My 10 year green card expires in November and I know I am supposed to extend it. The problem is that in 2012 when I was 18 yrs old I did something really stupid and got caught shoplifting some jeans and sunglasses. I am really ashamed and cant believe I did that but there is nothing I can do about it now. The judge said that since I never did anything before he let me pay a fine and do a course and community service which I did. I am really scared of what will happen if I apply to extend my green card in case they will take my green card away from me. I suppose I cant apply for my citizenship either. That is why I am contacting you to see if you can do something to help me. Thanks.
Answer: Even though the judge put you in a “diversion” program, it is still a conviction for immigration purposes, but not one which will affect your immigration status. Under Immigration Regulations, as long as the charge was for "petty theft", which is a misdemeanor in Florida and you have only one conviction, then it should not have a negative effect on Green Card renewal or even Citizenship (since the conviction was more than 5 years ago). However, any time a foreign national is convicted of a crime, due to potential immigration consequences, it is always a good idea to consult with an immigration attorney to be safe. It is also important to know that when an individual is convicted of a crime, even if the case was later expunged, the criminal conviction must still be listed on all immigration applications, since having a criminal record expunged does not apply to immigration. The USCIS requires that applicants provide certified arrest reports and court dispositions when applying for immigration benefits. In your case we still need to provide the certified criminal documents, but you will still be able to renew your green card and apply for naturalization without any problem.
Question: Good day. Me and my wife were married back in 1997 and had our two boys, then because of marital problems we broke up in 2000. I was not looking for her to give me my immigration papers because we had a real marriage, it wasn’t about that. But we still kept contact during the years and parented our two boys who are now in their 20’s. About five years ago one of our sons got sick and we came together as a family and she and I finally realized that we belong together and were just too immature way back when we first got together. So we got married again in 2019 and filed for my green card, then went to our immigration interview recently. I just got my green card in the mail and it says I only get a 2 years residency! We were under the impression that since we got married in 1997, they would count that we were married long enough for a permanent green card. We are really confused about this. Maybe the officer is wrong, please help us if you can. Thanks
Answer: That’s a great question. Foreign spouses of U.S. citizens and residents who has been married for less than two years at the time of their residency interview, only receive a two-year Conditional Resident status, rather than the full 10 year Permanent Residency that other U.S. Residents who obtain a Green Card through family members, employment or other means receive. This is meant to prevent marriage immigration fraud. Under the regulations, the foreign and U.S. Citizen spouses must file a request for removal of the conditional status (Form I-751) within the 90 day period prior to the conditional Green Card expiration. In order to qualify for removal of the conditional status, a couple must continue not only to be married, but also to live together as a husband and wife. I know it does not seem fair, but the fact that you were married back in 1997 does not qualify as married over two years by the time of your residency interview, because you divorced in 2000 and only remarried in 2019. So three months before your green card expires in 2022, you will need to apply for your ten year green card. Once you have been a resident (even conditional one) for two years and nine months you can file for your naturalization.
Problem issues related to consular visa applications usually arise when an immigrant fails to reveal or conceals information about family members living in the U.S.. i.e., that a brother, sister, parent, fiancée, and/or spouse is living in the U.S..
Other problematic issues involve providing false information about past visa refusals, past criminal activity or convictions, date of birth and information about current and past marriages. These discrepancies can often come back to “haunt” an immigrant later, when he or she is applying for an immigrant visa or residency in the U.S. and is then required to provide documentation to prove eligibility. Information provided at the residency stage with conflicts with the old visa application can result in a finding of “misrepresentation”, which can make an immigrant ineligible to immigrate to the U.S..
U.S. visa policies are very strict and have become even more onerous under Trump administration rules. As a result, individuals seeking to obtain a U.S. visa are often told by friends, family and visa services not to list relatives they have in the U.S. since the fact that they have family members living in the U.S. will result in a denial if their visa, which can be true. Similarly, visa applicants who list that they are married are often more likely to be issued a visa than single applicants, since the consular officer believes that if the applicant has a spouse residing abroad, the applicant is more likely to return to their home country and not over stay their visa in the U.S.
The problem comes later when an immigrant is sponsored by a family member who is in the U.S. and was not listed on his or her application. For instance, an applicant has a parent who is a U.S. Citizen living in the U.S.. The applicant does not list that the parent is a U.S. Citizen in the U.S.. Then the parent later sponsors the child to immigrate to the U.S.. Failure to list the parent’s immigration status in the U.S. is likely going to result as a finding of misrepresentation on the child’s part and will likely prevent the child from being eligible to immigrate to the U.S..
Similarly, if an applicant for a non-immigrant visa lists themselves as married on the visa application, then is later sponsored by a U.S. Citizen or Resident spouse or other family member, in all cases the immigrant will be required to provide official governmental evidence of the marriage or divorce. If the immigrant fails to do so because they were in fact never married, a finding of misrepresentation will likely result in immigrant visa or residency denial based upon fraud. Importantly, even if visa service prepares and files a visa application, the applicant themselves is held responsible for all answers and any discrepancies later found on the application.
There are waivers available to individuals in very limited circumstances, which act as a forgiveness for the fraud or misrepresentation, and allow entry to the U.S. However, these waivers are highly discretionary and can often be very difficult, if not impossible to obtain. So the moral of the story is, never lie or omit information on a DS160 application, since even a slight misrepresentation can prevent an applicant from every visiting or immigrating to the U.S. in the future.
Under the new NTA rule, the USCIS will hold off on issuing a deportation notice for at least 33 days, giving the applicant a chance to file a motion or appeal (for review). If the applicant files for review, the USCIS will not take any further action until the review process is complete. This provides applicants with the opportunity to file a motion or appeal and wait for a decision, which can take 3 to 12 months depending upon the case type, buying some precious time before the issuance of an NTA.
Many types of immigration case denials can be appealed to the Administrative Appeals Office (AAO) or Board of Immigration Appeals (BIA) within 33 days, and those which cannot, can still be requested for review or reconsideration. And with so much on the line, it’s important to know the difference between the options for review and what they require. An appeal is based upon the argument that the denial was based upon either an error in the application of the law or the officer’s interpretation of law to the facts of a case. A motion can either be requested to reopen a case, based upon new facts or documents not available to have been previously submitted with the original application or to reconsider the case, due to the USCIS having misapplied or misinterpreted the law and/or facts of the case or both. For practical purposes, filing an appeal or request for review or reconsideration does not mean that it will be approved and the USCIS filing fee is $675. But, given the current risks involved in USCIS denials and deportation, the risk may be well worth it, particularly in cases where an applicant is clearly eligible, but did not provide adequate documentation with the immigration application, or provided requested information after the USCIS deadline (with a reasonable explanation) which can now be provided. Ironically, when an appeal or motion is filed, it’s frequently the same USCIS officer who originally denied the case, that gets to review or reconsider the case and either affirm the original denial or reverse it and approve the case. In an appeal case, if the USCIS officer decides not to approve the case, the appeal will automatically be sent to the AAO or BIA for a final decision. For Motions, the officer’s decision not to reopen or reconsider is final. Ultimately, the filing of an appeal or motion is important and should be well prepare and properly submitted. As a result, it often best to seek immigration advice from a qualified attorney regarding eligibility for any immigration application BEFORE filing and if denied, guidance on whether or not to proceed with an appeal or motion.
You can get free information about filing Appeals and Motions by calling our office at: 954-382-5378.
For background, premium processing, is a 15-business day expedited processing service currently offered by the USCIS for only very limited types of cases, which include certain employment-based petitions. The fee is $1,440 for forms I-129 and some types of I-140’s. Under the new law, the USCIS will be allowed to increase the expedite fee, perhaps as high as $2,500 and to expand services to include other application types, including all employment-based nonimmigrant petitions, all I-140 petitions, Form I-539 applications to change or extension of status and apply for student visas, as well as Form I-765, to request employment authorization (work permit).
The drawback is that premium processing fees are going up and may no longer be 15 business days. Under the act, change of status to an F, M, or J visa, and family members of E, H, L, O, P, and R visa holders (called “derivatives”) may pay $1,750 in order to receive expedited processing in 30 days. Employment authorization (work permit) applications, may cost $1,500 for 30 day processing and immigrant petitions for multinational manager transferees (EB-1) and national interest waivers (certain EB-2), may cost $2,500 for processing in 45 days. The regulatory changes may take time to enact, so while the cost of premium processing for current qualifying applications may be increased to $2,500 soon, the expansion of services for other visa categories may not take effect for several more months.