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POSTING DATE: November 26, 2018
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Questions & Answers
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Question: I am a citizen mother and filed for my 19 year old daughter earlier this year. She came up here with me years ago and has had a difficult time in the past few years, hanging around with the wrong people, acting up and even dropping out of the school she was in. Now, I come to find out that she got married to this boy that her dad and me have forbid her to see. He is in a gang and no good. But she doesn’t listen and now we are in a fix with this. My husband says that she cant get her green card anymore because she is married and I am heartbroken. She doesn’t seem to understand or even care anything about her immigration situation and wont listen to us about anything and will not even speak to us right now. My question is whether since I filed for her when she was single will she still be able to get her status here, even though she is married now? Does it matter that this boy she is married to is an American? Does that help her chances?
Answer: Wow, that is a really tough one! Immigration rules provide that a minor child is under age 21 and unmarried. Married minor children, even though under age 21, are no longer eligible to immigrate as minors. Since she is 19 there was no legal way for you to have prevented her from marrying, so that is out of your hands. Since you are a U.S. Citizen, if your daughter divorces before age 21, she will once again become eligible to obtain her residency as a minor in the “Immediate Relatives” category. This is in contrast to the same situation, except that the parent is a Resident. In that case, as soon as the child marries, the I-130 family petition is automatically cancelled, even if the child later divorces. Since she is married to a U.S. Citizen, he could sponsor her for her Green Card, but of course that requires maturity and responsibility which young adults often do not possess. Likely the best approach right now is to step back and let nature run its course and hope that her husband sponsor’s her, or if they split up, help her to get a quick divorce!
Helpful Immigration Tips You Can Use...
Immigration News & Updates eNewsletter
Immigration How To:
How Do I Make An Inquiry On My Immigration Case?
Tips For Immigrants To Apply For Work Permit &
Social Security Card On Same Form
The USCIS and Social Security Administration (SSA) have simplified the procedure for individuals to apply for a social security number in order to work, using their work authorization card.
Up until this change some time ago, applicants eligible for work authorization (work permit) had to file (form I-765) to request work authorization, wait approximately 90 days to receive it, then go to the local Social Security office to apply for their social security card, which is required in order to begin working.
Immigration Waiting Lines Can Be Fatal
For Families With Minor Children
Millions of U.S. Citizens and Residents (Green Card holders) file immigration applications every year to sponsor one or more family members to immigrate to the U.S..
Most sponsors and their family members abroad understand that the process is initiated by the filing of form I-130 case with the USCIS, but past that, many find the process confusing and often mysterious, having no clear idea of how and when the case will be approved and when their loved ones will be able to immigrate to join them in the U.S..
So now that the holidays have rolled around and families gather to share cherished moments together with loved ones, it’s a good time to reflect on important issues such as immigration.
Important Immigration Tips For Children “Born Out of Wedlock”
Federal Court Orders Trump Administration To Accept Asylum Applications
Before filing any immigration application, individuals should fully educate themselves about eligibility and timing. Different kinds of immigration cases have certain processing times. For instance, if you are filing a form I-130 for a relative, you first want to look up specifics on how long the USCIS takes to process the case and how long your relative will need to wait to immigrate.
This gives you a clear idea of how the process is supposed to go. Once you know that, you can continue to check on the USCIS website for processing times to make sure that your case is within the normal posted times. If it is not, you can call the USCIS 800# and have them make sure the case is still pending and that no USCIS request, called an RFE has been sent that you may have never received.
The most important part of the immigration process is understanding that there is are immigration waiting lines for most family members being sponsored. In fact, the only family members who are not required to wait in line are Spouses, Minor Children (under age 21) and Parents of U.S. Citizens. Everybody else has to get in line and the time it takes waiting to immigrate depends upon the relationship the foreign relative has to the U.S. Citizen or Resident sponsoring them.
The shortest line is for Spouses and Minor Children (under age 21) of Residents, called F2A, about 2 years, then comes adult single children of Residents (and their Minor Children under age 21), called F2B, 6 to 7 years, next comes adult single children of U.S. Citizens (and their Minor Children under age 21), called F1, 7 years, next are adult married children of U.S. Citizens and their Spouses and Minor Children under age 21, called F3, about 12+ years and finally, Siblings who are brothers & sisters of U.S. Citizens and their Spouses and Minor Children under age 21, called F4, about 14 years. Note that Residents cannot sponsor their married children, parents or siblings.
There is no way to circumvent the waiting line and no expedited process by paying an additional fee. The only way a family member can get in a faster line, is when an adult child of a U.S. Citizen divorces and moves from F3, which is about 12+ years to the F1, which is about 7 years.
The date that the I-130 petition is received by the USCIS is called the “Priority Date”. The Priority Date is the date the foreign family member is in the immigration waiting line. The State Department releases a Visa Bulletin each month which gives the Priority Dates which are current for each immigration category. So with these inevitable waiting lines a large part of the process, families should understand this from the outset and plan accordingly. For instance, most immigration categories include minor children under age 21, however as time goes by, children age and many, many children who were initially minors when the application was filed for their parent, turn age 21 and become adults during the process and as a result become ineligible to immigrate to the U.S. along with their parents, even after waiting many long years. Parents are often shocked and devastated to find out that their children are not able to immigrate with them and end up either being separated for many years, risk having their adult children live in the U.S. without legal immigration status or decide not to immigrate at all. There is a law which helps to preserve at least a portion of a child’s age from going over age 21, called the Child Status Protection Act CSPA, which allows for the time the I-130 immigration application was pending with the USCIS from the date of filing until approval, to be deducted from the child’s age at the time an immigrant visa is available to the family (also meaning, when the Priority Date becomes current).
So in practice, let’s take a look at the process of using the CSPA to reduce the age of children in order for them to continue to remain eligible to immigrate years later once a visa become available. In a typical scenario, a U.S. Citizen parent files to sponsor her adult daughter and family, F3, which is about 12+ years. The USCIS generally takes 8 years from the time of filing, to approve an I-130 filed in the F3 category. That means that using the CSPA, some 8 years can be deducted from each child’s age (at the time the Priority Date becomes current) when it’s time to begin the final immigration process, in order to determine whether or not the child remains eligible to immigrate as a minor child with his or her parents.
So here is a very simplistic scenario, if it takes exactly 12 years to immigrate in the F3 category: The I-130 petition is filed 8/1/2006. At the time, the children are ages 10, 15 and 17. The I-130 is Approved on 8/1/2014, so it took 8 years to process and that time can be deducted from the children’s ages. On December 1, 2018, the Visa Bulletin shows that the Priority Date is current for all adult married children of U.S. Citizens and their Spouses and Minor Children under age 21 (F3) who filed an I-130 application on or before 8/1/2006. Since the I-130 petition in our example was filed on 8/1/2006, the family’s Priority Date has been reached and a visa is immediately available to immigrate on 12/1/2018, so consular processing begins. The National Visa Center (NVC) sends the U.S. Citizen notification that the visa is current and issues a fee bill for the U.S. Citizen to pay to initiate the process. This is the time the CSPA comes into play to determine which, if any of the children will be eligible to immigrate to the U.S. along with the parents.
Clearly, the CSPA deduction is beneficial to children who are age 16 or under at the time the I-130 is filed. However, in reality the calculation is somewhat more complicated depending upon the exact time it takes for the Priority Date to become current, the exact time it takes for the USCIS to process the case and the child’s exact birth date. For instance, if a child ages out and even after the deduction of I-130 processing time under the CSPA the child is just one day over age 21, tragically, that child is no longer eligible to immigrate.
So, keeping this in mind, U.S. Citizens and Residents should sponsor their foreign relatives who have minor children sooner, rather than later, understanding the risk that long immigration waiting lines pose to the ability of a child to be eligible to immigrate to the U.S. along with their parents. Happy Holidays!!
As part of my Immigration law practice, individuals frequently come to seek my advice AFTER they have filed an immigration application and run into problems, asking me to FIX it. Such is often the case with difficult immigration issues like those involving children who were “born out of wedlock”, meaning their father was not married to their mother.
In these instances, either a U.S. Citizen child is sponsoring a father who was not married to his or her mother, or a father is sponsoring a child and was never married to the child’s mother.
In either case, proving a father-child relationship can be very challenging, particularly for countries like Jamaica, in which 60% of all children are born outside of marriage by some estimates. Further, in such countries there are generally no formal court ordered custody arrangements or child support documents, support for children is often paid in cash, or expenses such as tuition, clothing/supplies and there are few if any records of a father’s relationship with his children
When an immigration petition is filed by either the U.S. Citizen child or father and the father was not married to the child’s mother, the USCIS requires extensive documentation to prove that a parental “relationship” existed and continues to exist to prove that a bona fide father-child relationship was established between the father and the child while the child was under 18 years of age. The law requires that the father prove he has demonstrated an active concern for the child’s support, instruction, and general welfare; that the father and child actually lived together or the father held the child out as his own; that the father provided for some or all of the child’s needs, or that in general the father’s behavior evidenced a genuine concern for the child.
Without documentary evidence, the USCIS will generally deny family petitions filed for children or a father, even when the USCIS has no doubt about the biological relationship. The main issue is always, did this biological father show “care and concern” for his child while the child was a minor under age 18.
This can be shown by documentation including:
-Cancelled checks or receipts of money given by the father to the child, Western Union/MoneyGram receipts, etc.
-Father’s income tax returns showing the child as a dependent.
-Father’s medical Insurance records listing the child’s medical coverage.
-Father’s insurance policy showing the child as a beneficiary.
-Child’s School records showing petitioner as the child’s father.
-Child’s medical/Vaccination records listing the father’s name.
-Pictures of the father and child together
-Child’s Baptism & Church records showing the father’s relationship with the child;
-If the father and child lived together, documents from each showing their address was the same
-Other similar and relevant documents, including: Letters, telephone bills, airline tickets, email printouts and other communications between the father and child.
-Notarized affidavit from the child’s father and mother regarding the father providing support, caring for the needs of the child and providing for the child’s general welfare other notarized Affidavits of relatives, friends, neighbors, school officials, or other associates stating facts showing that they personally know that there is a bona fide (real) father and child relationship.
It’s important to note, however, that Affidavits alone are generally not enough proof of the relationship without other documents such as proof of child support payments, etc. I like to sit down with client and go over a detailed history of their father-child relationship to assist in determining which type of documents my client may be able to obtain which will best suit their case. In many cases where a father is in the U.S. seeking to sponsor a child abroad and support has been paid through Western Union or other money transfers, I advise clients to order a ten year transaction history (if available) in order to show support payments to the child or his or her mother. That, coupled with several other types of documents, photos and well written Affidavits will often suffice to win a case. The most critical aspect of every immigration issue is fully understanding what the exact requirements before filing the case! That saves a lot of money, time and heartache.
In yet another blow to Trump’s authoritarian governance by executive orders and proclamations, a U.S. federal judge recently barred his administration from refusing to accept asylum applications from immigrants who had entered the U.S. illegally.
The ruling came in response to Trump’s ban earlier this month, against accepting asylum applications from immigrants arriving at the U.S.-Mexico border.
Question: My girlfriend came to the us 2 weeks ago and the officer at the airport said she has been here often and stay too long and only gave her 1 month to stay instead of 6 months like she usually gets. Last week I proposed and we plan to get married in Jan and I am American so I will file her papers for her. Since she only got 1 month to stay, does she have to go back home and then come back in again to get 6 months or do we have to file immigration forms to request that she gets extended for 6 months? We are worried that she will be illegal next month when her time expires and she will get deported.
Answer: Great question. Yes, individuals who come to the U.S. often and stay for long periods of time can run into problems once they leave, then attempt to re-enter the U.S.. In such cases the authorities believe that the visitor may be working and living here illegally. The good news is that your girlfriend was allowed to enter, since in many cases the officer can refuse entry. However, I am sure that the officer put notes in the computer which flags her in case she leaves and again tries to come back again too early. Since you are a U.S. Citizen and will be getting married soon, there is no need to file form I-539 request to extend her stay in the U.S.. And in fact, under new Trump policies, doing so could get her put in deportation if her request is denied. Its important to note that immigration regulations forgive immigrants who marry U.S. Citizens and file for residency when they are out of status or even when they worked illegally, as long as they initially entered the U.S. legally. So her immigration status wont be a problem for her once her residency case is filed. However, understand that it can take up to six months for her to receive her work/travel permit after you get married, once her residency case is filed, therefore, you might want to consider moving the wedding date up, or at least getting married civilly at the courthouse earlier, then having the formal wedding in January like you planned. Let us know if you want us to handle her residency case.
Question: I came here legally in 2004 on a visa and my eldest brother who is a citizen filed for me. I thought I was allowed to stay here all this time, but found out later that’s not true. The immigration approved my case a few years ago, but now the lady that did my papers just told me that its time to immigrate but i have to go to Jamaica to pick my green card up. I am here in the U.S. illegally since my I-94 expired many years ago. My question is: Can I pick my green card up in America and will I be able to obtain a work permit here while waiting? thank you!
Answer: Unfortunately, under current law, unless your brother filed the I-130 Family Petition for you before April 30th of 2001 (under a rule called 245i), you cannot obtain your Green Card in the U.S. since you are not in legal immigration status. If you leave the U.S., you will be denied your immigrant visa at the Consulate and “barred” from re-entering the U.S. for ten years, since you were in the U.S. out of legal status. It’s important to know that I-130 petitions filed by relatives do not provide any immigration or employment benefits for immigrant family members. The only option for many immigrants is a real marriage (for love) to a U.S. Citizen. In those cases, your lapse in immigration status will be forgiven. However, never, ever marry for immigration purposes! For now, you and millions of other Immigrant currently in the U.S. without legal immigration status will need to wait for the Congress to act on Immigration Reform. I hope that was helpful to you.
Currently, applicants eligible for work authorization can complete the form I-765 application and tick off a box on the form to request a social security card as well. Once the work permit is approved (currently about 4-6 months) the social security card arrives in the mail within several weeks. The downside is that once the work permit is received, applicants can no longer go straight to the social security office and apply for their card. Instead they have to wait for it to arrive in the mail which can take from one week to a month or more. In such situations when the social security takes more than several weeks, it might be a good idea to go to the local social security office and make sure that their system shows the card was ordered and see if you can get the representative to give you a time frame for arrival. If it still has not come after a week or so, go back and ask to speak with a supervisor. Good to know...
To check USCIS processing times, go online to the www.uscis.gov website first choose Check Case Status then type in the case number. You should receive a message which tells you the date the application is filed. Then click on Check Processing Times, and choose the form number, for instance, I-130, then choose the USCIS Service Center (listed at the bottom of on your receipt) from the dropdown list. Once you see the list of I-130 case types, look for the one which matches your case. For instance, you have a choice if U.S. Resident filing for spouse or minor child, U.S. citizen filing for a brother or sister, etc. and you can see the average processing time for that type of application. For example, U.S. Resident filing for spouse or minor child 18 to 24 months (2 years), U.S. citizen filing for a brother or sister 89 to 115 months (8 to 9 years). If your case has gone over the processing time you can make an online inquiry for a case pending with the USCIS by filing an “e-Request”. It will usually take about 2-4 weeks to get a response. If the response is not received by that time, you can call the USCIS 800# and ask the representative to make another inquiry for you.
For more information, visit the USCIS E-Request webpage
As part of his decision against Trump’s proclamation, the judge’s decision held to the rule that a president can't override immigration law. In his ruling, Federal Judge Tigar noted that federal law says someone may seek asylum if they have arrived in the U.S., "whether or not at a designated port of arrival.", adding “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,”