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POSTING DATE: November 20, 2017
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Questions & Answers
This Week's Immigration News
Question: I came to America legally as a tourist and stayed here after taking some language courses many years ago. Last year my daughter who was born in the U.S. filed for me and I had my Immigration interview in August of this year. The officer was really nice and said he would approve my case, but that I needed to give him papers about an arrest I had several years ago for driving without a license. He gave me a paper and said I was to send the documents in along with that paper and he would formally approve my case, then I should receive my Green Card in about a month. So we went home and found the documents I had about the arrest with the court decision and I sent it to him certified mail the same day. So me and my daughter were shocked when we received a letter last week saying that my case was denied because I failed to provide the documents requested about the court case. I am really confused, since I did send in the court document that my attorney gave me, that is all I had! The denial letter says I cant appeal and I don’t know what to do now. Have I lost all the case and my filing fees of $1760? Am I going to get deported. Please help me attorney pedersen, is there something you can do?
Answer: Unfortunately, what you are experiencing is very common and avoidable. It’s important to understand that when the USCIS issues a request for documentation, you generally only have one opportunity to provide EXACTLY what is requested or the case will be denied. With USCIS Requests For Evidence, it is crucial to determine exactly what the request is asking for, so that you can provide it, since there are no second chances. For criminal cases, Immigrants must provide the USCIS with a CERTIFIED COPY of both the Police Report or traffic Ticket AND the Court Disposition. One or the other will not be sufficient.
It’s also important to know that in many cases like yours which cannot be Appealed, an Immigrant can still make a request for the officer to reopen the case or reconsider it (I-290B, Notice of Appeal or Motion). The filing fee is $630. A motion to reopen must be based on factual grounds, such as the discovery of new evidence or changed circumstances, while a motion to reconsider must establish that the decision was incorrect based on the evidence of record at the time of that decision. Unlike a motion to reopen, no new evidence circumstances can be submitted to support the request. While not required, due to the technical legal issues involved in such Motions, its always best to have a qualified Immigration attorney prepare and submit the request.
In some Immigration cases, filing an Appeal, Motion to Reopen or Reconsider is not advised and just a waste of money. These types of cases involve eligibility issues, for instance when an Immigrant files for residency or some other immigration benefit that they are clearly not eligible for. For example, when a Resident sponsors a married child. In such a case, no eligibility exists, since there is no immigration category for an adult married child of a Resident, only for single children. Only U.S. Citizens can sponsor their married children.
In your case, I will request that the case be reopened to submit the correct documentation and explanations as to why the documents were not initially provided. Processing times can be 3 to 6 months and if approved, the USCIS will reopen/reconsider the case and approve it. See you soon.
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Understanding Family Immigrant Visa Process - Sponsoring Your
Family to Immigrate to the U.S.
How Long Will It Take? Can my family live and work in the U.S. while waiting for the Green Card? What are Priority Dates and the Visa Bulletin? Family immigration can often seem like a very confusing, mysterious process that makes little sense and takes many years to accomplish. And while it is frustrating to wait so many years in the process, it’s beneficial to have a good understanding of what the process is and why it may takes so long for a family member to immigrate to the U.S..
All family members (with the exception of “Immediate Relatives” who are Spouses, Minor Children and Parents of U.S. Citizens), who are sponsored to immigrate to the U.S. to obtain Permanent Residence (the “green card”) must go through the U.S. visa quota system. The visa quota system is essentially a series of long lines for each family category, all waiting for a visa to become available.
According to Immigration advocates, many DACA renewal applications mailed well in advance of the October 5th deadline were not delivered by that date, due to U.S. Postal Service (USPS) delays. In many instances, DACA packages were received by the USPS in mid September, but inexplicably disappeared from the tracking system for several weeks, only to finally show an actual delivery date after the deadline.
Following these widespread reports and investigations by the USCIS, on November 15, 2017, Acting Secretary of Homeland Security Elaine Duke announced that she had directed the USCIS to accept DACA renewal requests from Dreamers who resubmit their DACA renewal request with documentary proof that the original application was mailed by a date which should have been received by the USCIS except for the USPS delivery delays.
This would include copies of the USPS receipt showing the date of mailing and expected date of delivery. Those who did not save the receipt can contact the local USPS office to obtain proof of mailing. Sec. Duke also announced that some qualifying, timely filed DACA applications were wrongly rejected by the mailroom staff. The announcement states that further guidance will be released. Stay tuned for updates…
There are approximately 226,000 visas available each year to be distributed among the various family categories. And because the demand for family sponsored visas each year always far exceeds the number of visas available, the family lines grow longer and longer. A family members “place” in the visa line is determined by the “Priority Date” they were assigned when their U.S. Citizen or U.S. Resident family member filed the I-130 application to sponsor them.
The Priority Date is the date the I-130 was filed. So, if you were going to picture it, imagine that once the I-130 petition is filed, the family member is given a ticket with a certain date on it and placed in a line to await his or her date being called. All the individuals ahead of the family member have earlier dates on their tickets, because the I-130 petition was filed by their relative at an earlier time, and those behind them were filed later. So as time goes on, the line moves up and the family member gets closer and closer and while it may take many years, eventually they do get to the front of the line. Once they reach the front of the line, they obtain their long awaited “Immigrant Visa” from the U.S. Consulate and finally immigrate to the USA.
Keeping track of these visa numbers, Priority Dates and quotas is a complicated matter given to the U.S. Department of State (DOS), which uses data and calculations to predict when a visa will be available in any particular family category in order to establish which date gets to move to the front of the line. The DOS publishes these figures each month in a notice called the “Visa Bulletin” which is available on the DOS website. To complicate matters, not all countries have the same line in the same family categories as others. This is because there is a higher demand for visas from some countries than from others. For instance, the waiting line for an adult, single child (over age 21) of a U.S. Citizen is about 7 years for most countries. However for Mexicans, the wait is over 20 years, due to high demand built up over the years. Because of this, the Visa Bulletin chart categorizes visa availability by dividing it among high demand countries such as China, India, the Philippines & Mexico, then a general worldwide category which everyone else falls into.
And just to confuse the matter further, Visa dates don’t always move forward, sometimes to our despair, they actually move backward and go further back in time. This is something called “regression”. It is really important to understand even when a family member’s Priority Date becomes current and he or she is right at the front of the line ready to step up to the window and get their visa, if they are still processing and haven’t yet attended their immigrant appointment, if the Visa Bulletin date regresses, they must go back and get in the line again and wait until their date is called again.
While complicated, the reason for this is that the DOS publishes the Visa Bulletin based upon data predictions of how many visas will be used and when a visa will be available. So to try to make some sense of it, if the prediction is that 1,000 family members (including their dependents) in the line ahead would be issued visas, but instead, those family members had more dependents than predicted, so they had to actually issue 1,500 visas, then that will delay those waiting in the line behind.
As a result, once a family member is notified by the National Visa Center (NVC) that it is time to start processing for the final phase of immigration, family members and sponsors should avoid delay and quickly provide the required information and financial documentation to the NVC in order to obtain their immigrant visa as soon as possible….in case the line regresses. As a community service the American Immigration Law Center provides free information about the family Immigrant visa process, priority dates and the visa bulletin by calling us at: 954-382-5378. Just make sure that you have a copy of the I-130 Approval Notice and any notices you received from the National Visa Center when calling, in order to receive the best assistance possible.
Question: Hi, you got my brother Martin his green card and he gave me your contact info to see if you can help me. I was in Miami last year on a visit with friends and I met an American girl and we got really serious, so I filed to extend my time here for a few months. My time expired in September last year, so in august I filed the extension with immigration but by November when I had to leave, I had not yet got the approval. I had to leave the U.S. to go home to Venezuela for some family issues. My girlfriend has come to visit me several times and we got engaged during the time I have been away. I came back to the U.S. to visit her for a few weeks recently and once I got to the immigration at Miami airport, the officers took me aside and told me that my visa was cancelled and I had to get a flight back home. I asked if it was because I was Venezuelan and they said its because I overstayed. I explained that I filed the extension last year but it was still processing after 2 months and I had to leave and it was not my fault. I even showed the officer the immigration receipt. He said sorry, that is the law and cancelled my U.S. Visa and made me leave. Me and my girlfriend are so upset and don’t really understand how this could happen when I followed the law. Is it because I am Venezuelan or some other reason? What can me and my girlfriend do now, if we want to get married can I come back to be with her soon? Thanks for you help.
Answer: Yes, unfortunately, under Immigration regulations, once you file to extend your authorized stay in the U.S., if you leave before it is approved or if it is denied , you are deemed to have been “out of legal status” since your original stay expired. In your case, even though you filed the application in August, once your stay expired in September and you remained in the U.S., you began to accrue “unlawful status”. If your request for extension of stay had been approved, then you would be considered to have been in legal status from the time your stay expired in September until your approval. However, since you left in November before an approval could be issued, technically you overstayed from the date your stay expired in September until the day you left the U.S..Its a very unfair rule, particularly when an extension of stay can take many months for a decision and applications are often approved AFTER the requested extension period has expired. For instance, your stay expired in September 2017 and a request for extension of stay can be issued for up to 6 months, which is March 2018. However, in some cases, when the USCIS issues a Request For Additional Evidence (RFE), which it does for most Venezuelan nationals, it delays processing, and an approval on such a case might not even be received until AFTER March 2018, granting your request for an extension only up to March 2018. Thus, you would have been deemed to be out of status, even though your request was approved, crazy but true!
The general rule for all visitors is that once you overstay your period of authorized stay in the U.S. - by even one day, when you leave the U.S., you are not allowed to re-enter on your current Visa and are instead required to apply for a new B1/B2 Tourist visa at the U.S. Consulate in your home country. And unfortunately, once an individual overstays in the U.S. and then applies for a visa at the U.S. Consulate abroad, the Consular officers are very unlikely to issue a B1/B2 tourist or any other type of Non-immigrant visa, effectively closing all possibilities for legally travelling to the U.S. again.
The exceptions are immigrant visas, such as a Fiancée Visa and Spousal Visa (for foreign Fiancées & Spouses of U.S. Citizens). However, foreign Fiancées and Spouses are not immediately issued a Visa which allows them to travel to the U.S. until all the technical processing is complete, which takes 8+ months or more.
In your case, we can represent your fiancée by filing a Fiancée petition for you or she can go and get married to you in Venezuela and we will file the Spousal Immigrant petition. The downside in both cases is that it takes many months for these cases to process and you won’t be allowed to return to the U.S. until the visa is approved. Have her call me and I will explain the process and we will go from there.
When filing an Immigration case without the assistance of an Immigration attorney, you need to pay very close attention to the status of your case and get updates.
Fortunately, the USCIS has some very convenient tools which allows Applicants to get updates on newly filed and pending Immigration cases. Immigrants and Sponsors filing Immigration applications with the USCIS can now sign-up to receive text messages and email E-notifications confirming application receipt by the USCIS, along with the case receipt number(s). The receipt number allows individuals to track the status of their case online. E-notifications are issued within 24 hours after the USCIS receives the application. To request e-notification, download and complete form G-1145 and mail along with all Immigration applications. Once you receive your case number, go to the USCIS website and sign up for Email Status updates on your case through the USCIS My Case Status program. Once you register and enter your case number(s), the USICS will automatically email you notifications and updates on any actions take on your case so that you are better informed about your case status.
For instance, once your Immigration application is filed, the USCIS may issue you a letter requesting more evidence in order to continue processing the case. If you are registered to receive case status updates, you will receive an email notification that the USCIS has issued the request, which helps you to be aware that you should be receiving the request by mail soon. If you have not received the request, you can then make further inquiries. Similarly, once you respond to the USCIS request, you will receive an updated email notification that they have received your documentation. It’s a great way to stay informed and keep up to date on the status of your case as it is being processed.