Tell a friend about this page

Learn More About:

Add this page to your favorites.

Immigration News & Updates eNewsletter ©  2011  - 2020 
For questions about U.S. Residency, Green Cards and Immigration Visas, Visit our Website at: or  call our office at: (954) 382-5378
Questions & Answers
This Week's Immigration News 
By Immigration Attorney Caroly Pedersen
  Immigration News & Updates              
Immigration How To:
How Do I Know  When My Family Can Immigrate To The U.S.?
Questions About Immigration? We have the answers!
We Are Here To Help, Call us now for a FREE consultation (954) 382-5378
Helpful Immigration Tips You Can Use...
Question: I have been here since 2016 with an expired tourist visa. After I got here I filed for an extension and I got a letter from immigration asking for all sorts of documents I did not have and once I sent whatever I did have they denied me. But I stayed in the US anyways. Last year I met my wonderful boyfriend and we are planning to get married in December when my parents come to the US to visit, so both our families can meet and be together for our celebration. He got his green card in 2018 through his dad who is an American citizen and says he is not allowed to get his citizenship until three more years. Our question is once we get married, can we file my immigration papers and will I be legal after that or do I have to go home to go through the process? When will I get my drivers license, work permit and social security number? Thank you for your answers.
Like a toddler having a tantrum, Trump is furious about losing the election and has decided to do as much damage as possible before being forced to leave office on January 20th. Scouring over items left on his evil to do list, is one of his favorite anti-immigrant issues, ending Birthright Citizenship for children born in the U.S. to foreign national parents. Trump and his scheming sidekick Stephen Miller had planned to tackle the issue during a second term of his presidency, which is thankfully not an option. However, now that the end is near, plans are being finalized for Trump to sign a flurry of controversial immigration Executive Orders, like firing off all the remaining fireworks at the end of the show, for a spectacular finale! 
Trump Expected To Issue Executive Order To End 
Birthright Citizenship Before Leaving Office

                  LAW CENTERS

Immigration Questions: (954) 382-5378
 POSTING DATE: November 23, 2020
Answer: Unfortunately, spouses and minor children of U.S. residents (Green Card holders) who are inside the U.S. with expired immigration status are generally not eligible to obtain residency. This means that the I-130 family petition filed by the U.S. Resident spouse does not confer any legal status or immigration benefits on the foreign national spouse or children. No legal immigration status, no social security card or driver’s license. This is in stark contrast to the generous rights and benefits available to the foreign spouse and children of U.S. citizens. Under immigration regulations, as long as a spouse or child of a U.S. citizen entered the U.S. legally, even if they then later fell out to status, they remain eligible to apply for Residency, remain in the U.S. during the immigration process and receive a work permit, social security card and later driver’s license. 

The only option for the foreign spouse and children of a resident who are not in legal status is to wait until the U.S. Resident becomes a U.S. Citizen. Once he or she naturalizes and the Residency case is filed, and the spouse and children may legally remain in the U.S. during the entire immigration process. So the priority is always - how quickly the U.S. Resident spouse can file for and obtain U.S. Citizenship. In your case you know, its three more years. Hopefully, the Democrats will win control of the Senate in the runoff election in January in the state of Georgia. If that happens, Biden will put forward a comprehensive immigration reform plan for Congress to legalize the immigration status of most if not all immigrants in the U.S. who do not have legal immigration status. Lets keep our fingers crossed! I hope this is helpful to you. 
Many Americans and Immigrants alike believe that once a U.S. Citizen or U.S. Resident sponsors a family member to immigrate to the U.S., the only delay in their relative actually immigrating is the time it takes the USCIS to process the case. This often causes quite a bit of confusion and frustration for sponsors and family members who are unsure about how long the immigration process will actually take and how to determine how much more time they will need to wait. 

Simply put, Immigration waiting lines are based not upon processing time, but instead upon supply and demand. 
Tips on Qualifying For Naturalization When You Owe IRS Taxes 

Many U.S. Residents (Green Card holders) who owe taxes to the Internal Revenue Service (IRS) mistakenly believe that they are not eligible to obtain U.S. Citizenship, when in fact, most Residents who owe taxes actually remain eligible to apply for naturalization, as long as they meet certain criteria. The key to successful naturalization for those who owe IRS taxes is in following several basic steps.

For background, one of the most important requirements to qualify for U.S. citizenship is to show that you have had "good moral character" in the immediate five years preceding the naturalization application filing (past three years for early naturalization based upon marriage to a U.S. Citizen). 
Another Federal Court Rules Against Trump 
Administration’s Limitations On DACA
Add this page to your favorites.
Like déja vu, yet another federal court has ruled against the Trump administration’s DACA policies. Last week a federal U.S. district court in New York ruled that the Trump administration had no authority to limit DACA program and curtail benefits. In his ruling, U.S. District Judge Nicholas Garaufis found that that "DHS failed to follow the order of succession as it was lawfully designated. 

Therefore, the actions taken by purported Acting Secretaries, who were not properly in their roles according to the lawful order of succession, were taken without legal authority.".
For background, Birthright Citizenship provides that all children born in the U.S. are automatically granted citizenship, regardless of whether or not their parents are American or not. The right derives from the Fourteenth Amendment to the Constitution in 1868: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Legal experts differ as to whether Birthright Citizenship is an absolute right, or one which can be limited, for instance only apply to those whose parents have legal immigration status in the U.S.. Critics of Birthright Citizenship point to the practice of some foreign national’s intentionally entering the U.S. to give birth in order for the child to automatically obtain U.S. Citizenship, sometimes referred to as “birth tourism” and the children as “anchor babies”. Currently, it is not illegal, per se, for a woman to come to the U.S. and give birth, however, it is a violation of immigration regulations for her to come for that purpose, rather than for the purpose of tourism, which is the intent of a tourist visa.

Most constitutional experts and legal scholars believe any such executive order signed by Trump to end Birthright Citizenship would be immediately challenged in court as unconstitutional and would likely not be enforceable. But that issue has never stopped him before and may simply provide him with the attention he craves through the controversies he continually creates. Get ready, Trump’s executive pen is quivering, looking for something to sign! 
The Hill
Business Insider
This is just the most recent in a succession of rulings against the Trump administrations DACA restrictions, including one by the Supreme Court. To date, the USCIS has ignored court rulings requiring the agency to resume accepting new DACA applications and since last week’s ruling, is still limiting DACA renewals to one year, instead of two. Stay tuned… 

USCIS still rejecting new applications

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. 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..
Spousal visa:

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 few 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 eight – twelve months for approval and another two to four months for a consular interview, where the foreign spouse is issued an immigrant visa, which automatically converts to residency (Green Card) once he or she enters the U.S.. So the entire spousal process takes about twelve to fourteen months or so, in contrast with the fiancé process which can take upwards of two years all together to get the Green Card.

Given the current timing, spousal visas are much faster and more efficient these days. The only time that a fiancé visa would normally be in order, is 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 may still have a chance, as long as the child only recently turned age 20, given the time required for the fiancé visa to be approved and the consular interview to be scheduled for the fiancé and his or her children. As long as the visas are issued and the K-2 children enter the U.S. before they turn age 21, they 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. 
Question: Me and my wife went to her immigration interview last month and thankfully we received her green card last week. The problem is we just noticed that I must have mistakenly left my original citizenship certificate in some papers I gave the officer at the interview. I think it was in with the new taxes we gave her and I didn’t see it so I didn’t ask for it back. I went online to see how much it would cost to get a new one and it says over $500 dollars and take up to a year! I went back to immigration yesterday and they would not let me in the building without an appointment, then I called immigration 800# and they said there are no appointments available. I am stuck now and don’t know what to do, is there something you can do to get my certificate back?
Answer: Giving original documents to the USCIS can be a real inconvenience, since they will not automatically send them back to you. And as you know now, it can be very expensive and time consuming when you need to re-order new original documents. The first advice to readers is never, never, ever send any original documents to the USCIS, unless specifically requested by an officer to do so. The second is that if you do find yourself in that position, you can file form G-884, Return of Original Documents to request return of the documents to you. There is no filing fee. Read the instructions carefully and be sure to specifically request your Naturalization Certificate and other originals that you filed and need back like your Marriage and other Certificates. Your case file may still be still be at the local office, but also might have been sent back to the National Benefits center or even records center. If I were you, I would file the form with your local office and National Benefits center as well very quickly! 
Question: My boyfriend is American and he and I have been having a long distance relationship over the past 2 years. Recently we planned to get married and though maybe me and my daughter who is 18 would travel there on our visitor visa and then once we got married go through the immigration process. I just want to be on the safe side and confirm from you that my husband will be able to file for her, since she is still a minor. Thank you.
Answer: That is a great question! Very important to know that under normal adjustment of status regulations, once you get married, your U.S. Citizen spouse cannot sponsor your daughter, because under Immigration law, the stepparent relationship had to have been established by your marriage, before your daughter reached age 18. However, since you are outside the U.S. and still have options, your U.S. citizen fiancé can apply for a K-1 fiancee visa for your and K-2 for your daughter. As long as your daughter is issued the K-2 and enters the U.S. before age 21, she will then become eligible to obtain U.S. residency (green card) along with you once you and your fiancé get married and you file for adjustment of status. It will take a little longer (8-10 months) than you were planning, however, this is the only route which will allow your daughter to accompany you to the U.S. and obtain residency through your soon to be husband. Let me know if you want us to handle your K-1/K-2 and residency cases.
Issues which have the most impact on “good moral character”, include an individual’s criminal background, payment of child support and payment of taxes. Many criminal convictions occurring during the “good moral character” period often result in ineligibility. As a general rule, its best to wait until at least five years (or three years in the case of early naturalization) have passed since the date of the conviction or competition of probation (whichever is later). For child support, providing documentary proof of continuing payments for child support arrearages, along with proof of current child support payments will often result in Naturalization approval.

When it comes to the issue of IRS taxes, many individuals owe back taxes either because they could not afford to pay for previous year’s taxes or because of a mistake on their past taxes. Worse yet, the fear of owing back taxes often causes taxpayers to avoid filing a required tax return, which then puts them further and further behind. The best approach is to file all required taxes for previous years and enter into an agreement with the IRS for payment of back taxes owed. Here is what you need to do:

Step#1 File Your Taxes:

If you have failed to file any tax returns for past years in which you were required to file, the first step is to file all delinquent tax returns now. This is required before applying for a payment agreement with the IRS. You should likely get the advice and assistance of an accountant during this process, which costs much less than many imagine. The IRS will then send you a bill stating the taxes owed.

Step#2 Set Up a Payment Plan With the IRS:

The only way to naturalize when you owe back taxes is to enter into a payment plan with the IRS, also called an Installment Agreement. To do that, you should call the IRS and explain that you owe taxes and want to set up a payment plan and need a formal Installment Agreement that states the entire amount owed and for which years. Agents are often very understanding and willing to work with you and set the monthly payments as low as possible. Be sure to explain any extenuating circumstances, which negatively affect your income and ability to pay, for instance any large financial expenditures for medical or other expenses. 

Step#3 Set up Automatic Payments:

Request that the IRS agent to set up automatic debits from your bank account. This is the absolute best way to ensure that your monthly IRS installment payments are made on time and the best documentary evidence to prove to the USCIS that you have been making systematic, timely payments on your taxes. The agent will usually ask you what day of the month you want the debit payment made.

Step#4 Make Your Payments:

Make sure that you have enough funds in your bank account each month for your scheduled payments. Save copies of your bank statements each month and mark IRS payments in yellow highlight.

Step#5 Prepare To File for Naturalization!

Once you have your Installment plan and have made a few months (3-6 months) of regular payments, you should be ready to file for naturalization. Once the time comes, you will want to contact the IRS and request:

1) Tax and Wage Transcripts: for the past five years (three years for early naturalization) showing your official taxes filed with the IRS;
2) Payment Transcript: to show all your Installment Agreement payments to date in order to provide documentary proof to the USCIS.

Step#6 File for Naturalization!

Prepare your Naturalization application and file all required documentation, along with a copy of your:

1) Tax and Wage Transcripts: for the past five years (three years for early naturalization)
2) Payment Transcripts showing all your Installment Agreement payments to date 
3) Installment Agreement and 
4) Bank Statements with highlights showing all payments made. 

Once your Naturalization interview is scheduled, you will also want to request an updated payment transcript from the IRS to show all your payments from the date of filing your application until the interview, and bring that along with updated bank statements with highlights showing all payments made while your Naturalization case was processing. Special note, in cases where a Resident failed to file tax returns in previous years, it is always best to prepare a written, signed statement explaining the circumstances of the failure to file, including any financial or family issues which prevented the timely filing and a statement of regret or remorse for the failure. 

We successfully assisted Residents who owe back taxes in obtaining Naturalization! Give us a call and schedule a free consultation. Be sure to bring all the IRS tax letters your received and your past five years tax returns so we can go over your case carefully to determine the best approach to achieving your Naturalization. 
This means that since there are only a certain number of Immigrant Visas available each year to family members in immigration categories, if too many visa applications are filed, the long and longer the line gets. So in a way, when a family petition is filed to sponsor a relative, even though there are no immigrant visas available at the time, the application is put in a line behind all the others who applied earlier, waiting to get to the front of the line. It’s kind of like a “rain check”, when you go to the store to buy an item on sale and the store is out of stock, once the stock becomes available again, you can complete your purchase – which in this case – can take many years. Visit the Visa Bulletin to view the current waiting lines for Family and Employment Immigrant Visas. 

You can read a full explanation of Family Immigrant Visa lines and processing to give yourself a fuller understanding of the issue.

The chart below gives readers an idea of the various family categories and waiting lines for all countries except China, Mexico & Philippines, which often have waiting lines exceeding 20 years or more due to high demand:

Category/Family Relationship                                                Approx Wait Time

F1 Single, Adult Children of U.S. Citizens                                6 years
(and their minor children under 21)

F2A Spouses & Minor Children of U.S. Residents                   1-2 years

F2B Single, Adult Children of U.S. Residents                          5 years
 (and their minor children under 21)

F3 Married, Adult Children of U.S. Citizens                              12 years
(their Spouses & minor children under 21)

F4 Siblings (Brother/Sisters) of U.S. Citizens                          14 years
(their Spouses & minor children under 21)