Immigration Questions: (954) 382-5378
POSTING DATE: November 4, 2019
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Immigration News & Updates eNewsletter
Question: I got my citizenship back in May 2012 and sponsored my son and his wife in Jamaica. I understand that he has to wait a long time so we were prepared for that. What happened is he called me last night and said that he didn’t want to tell me sooner, but he and his wife are getting divorced and that they have been separated for over six months now. I did not know that. He said he wants to come to the US as soon as possible to get a new start. My question is can he come up here faster as a divorced person and if so when? Can he come up faster when the divorce is filed or does it have to be final? How does the process go to get him up here fast?
Answer: Good question. The Immigration category F3 waiting line for Adult, married children of U.S. Citizens is currently about 12 years. Right now there are only visas for children whose cases were filed in October of 2007. Whereas the Immigration category F1 waiting line for Adult, single children of U.S. Citizens is currently about 6-7 years and right now there are only visas for children in this category whose cases were filed in March of 2013, so much faster. Yes, your son can immigrate to the U.S. faster as a single child, however, he must be legally divorced to be eligible. The filing of a divorce itself is not enough. To enable your son to immigrate in the faster F1 Immigration category, we would notify the National Visa center (NVC) that he is single and provide them with a copy of the certified divorce decree. That way, once the F1 Immigration category is getting near your son’s priority date, meaning the date you filed the I-130 for him, the NVC will begin processing him in the faster F1 line.
Immigration How To:
How Do I Make Sure My Kids Can Immigrate To The U.S. As Minors ?
Tips On Using The Child Status Protection Act To Keep Children From “Aging Out”
Under Immigration regulations, a “minor child” is defined as a child under age 21 who is single. Qualifying as a minor child is particularly important because of long immigration waiting lines. Minor children of U.S. Citizens are considered as “Immediate Relatives” which allows them to immigrate to the U.S. nearly immediately and currently minor children of U.S. Residents can immigrate to the U.S. in about the same time.
Contrast this with adult children of Citizens and Residents who turn age 21 and are forced to wait for 7-8 years to immigrate!
Understanding USCIS Requirements For Attestation of Translations
Under Immigration regulations, all foreign language documents submitted with an immigration application must include a complete translation into English and a certification from the translator indicating that the translation is complete and accurate, attesting to his or her competence as a translator, called an “Attestation of Translation”. In the past, the USCIS did not strictly require such attestations and instead just accepting the English translation alone, however now, policy guidelines have tightened and many USCIS officers are requiring that all translations be accompanied by the attestation. As a result, applicants should be cautious to include the correctly worded attestation for all English translations, including those which are translated by the applicant or a family member.
Federal Court Temporarily Blocks Trump From Denying Visas
To Immigrants Who Are Unable To Pay For Health Insurance
Five Reasons Visitors Should Avoid Applying
To Change Or Extend Status In The U.S.
Answer: What you are experiencing is very common and avoidable. It is important to understand that when the USCIS issues a request for documentation, you generally only have one opportunity to provide exactly what is requested by or before the deadline 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. It’s also important to know that in many cases like yours (I-485 adjustment of status) 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 $675. 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 a 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, since there were extenuating circumstances, your father was in the hospital and the late response filing was due to circumstances beyond your control, it is possible to request that the case be reopened to submit the updated medical along with an explanation as to why the document was not provided to the USCIS by the deadline. When filing the motion, we would explain your circumstances in detail and provide an affidavit from you and perhaps even other family members about your father’s hospitalization, documents to prove he was hospitalized and copies of your departure and arrival airline tickets. Processing times for the motion can between 1 to 4 months and if approved, the USCIS will reopen/reconsider the case. See you soon.
Question: My daughter got her citizenship last year and filed for me. I was in Miami visiting her on my tourist visa and we decided I would just stay her and get my residency instead of doing it through the embassy in Colombia. We went to my interview in july and everything was good, but the officer said he could not approve my case until I had to get a new medical because the doctor did not sign the one I had submitted. He gave me a paper to send it to him with the new medical. The problem is that I had to go back to Colombia because my dad was in the hospital and I didn’t have time to do the exam before I left. I came back a few days before it was due and had the exam but I didn’t get the sealed envelope from the clinic until 2 days after the deadline. I sent it in to the immigration office with a letter explaining and thought that would be it. But yesterday my daughter got a letter in the mail saying my whole case was denied because I didn’t send the medical by the deadline. I can’t believe that only 2 days late will make my case be denied. The letter says I cannot appeal. My daughter said you did her friends case and it was approved, can you please help us get this fixed so I can get my green card?
Under Trump Administration policies which provide for deportation notices to be issued to many immigrants and foreign visitors whose immigration applications are denied by the USCIS, there is an ever increasing risk involved when filing any immigration application and request to extend or change status inside the U.S..
In fact, under most circumstances going forward, any immigration application made in the U.S. puts an individual’s immigration status, Tourist visa and future prospects of travel to the U.S. at risk!
On October 4th, Trump issued a Proclamation to deny the entry of immigrants who are unable to prove that they have the financial ability to pay for health insurance within 30 days of entering the U.S.. The Presidential Proclamation called “Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System”, was set to take effect last week on November 1st. Due to the serious ramifications of the policy which would deny immigrant visas to thousands of family members unable to provide proof of financial resources available to pay for health insurance, immigration advocacy groups filed a federal lawsuit against the administration in an effort to stop the plan from being implemented. The lawsuit charges the Trump administration with trying to rewrite our nation’s immigration laws and circumvent the will of Congress.
Commonly, in the past, a foreign national visiting the U.S. on a Tourist/Business Visa, called a B1/B2, could extend his or her stay or change to a new visa like an F-1 Student visa status, by filing an application with the USCIS. Once filed, the applicant could remain in the U.S. legally, while waiting for the application to be processed, typically within several months. An example would be a case involving an international tourist wishing to extend his or her vacation for several months in the U.S. or an individual seeking to become an international student to study English or enroll in an academic program. However under Trump, things have gotten much more complicated, due largely to new strict immigration policies, which make it very risky for anyone who wants to change or extend status in the U.S.. There are several reasons:
1) Preconceived Intent: First, foreign nationals must generally wait for 60 days after the date they entered the U.S. before filing any immigration application with the USCIS, including those to extend or change status. Any application filed before 60 days can lead an Officer to presume that the applicant had a preconceived intent to stay in the U.S. and misrepresented their true intentions when they entered the U.S..
2) Long Processing Times: Second, the USCIS processing time has increased so drastically, to 4-9 months, that in most instances, an individual’s “period of authorized stay” in the U.S. will almost certainly expire while waiting for their application to be processed.
3) Increased Denial Rates: Third, as part of Trump’s tough immigration measures, it is even more difficult to obtain approvals and foreign applicants must now withstand more scrutiny about their intentions to return to their home country, and risk denial if they are not able to provide documentation which establishes that they own property and continue to maintain a residence in their home country, to which they intend to return once their visa in the U.S. expires.
4) Extension Request Required For F-1 Change of Status Applicants: Fourth, under another new policy, all applicants to change status to an F-1 student or other visa in the U.S. are first required to file applications to extend status in the U.S.. This is not only confusing, but can lead foreign nationals to believe that once they file the application to extend status, it will automatically be granted and there is no risk, when nothing could be farther from the truth.
5) Risk of Referral For Deportation: Finally, under the USCIS NTA policy, if an individual’s immigration status has expired by the time a denial is issued by the agency, officers are now directed to issue a deportation notice to the Applicant, which is the first step to initiate his or her removal from the U.S.. This controversial change in policy was first announced in June 2018 and implemented on October 1, 2018. An NTA means that in these denied cases, a “Notice To Appear” for deportation is issued. Of course due to ever increasing immigration application processing times, many if not most individuals filing applications for Residency or change of status naturally have a lapse in status while their immigration applications are pending. An individual with an expired period of authorized stay is technically considered to be ”unlawfully present” in the U.S. at the time of denial. This includes those who file an application while they are still in legal status, but due to the time involved in processing the immigration case, have fallen out of legal status by the time a denial of the case is issued. The initial application of the NTA policy covered an extremely wide range of circumstances, including millions of foreign visitors who innocently file applications to change or extension of status in the U.S. every year.
Obviously, every increasing USCIS processing times for immigration applications, coupled with the requirement of waiting 60 days following entry into the U.S. before filing any non-immigrant application is a lethal combination for any foreign national who values their U.S. visa, since overstaying an individual’s “period of authorized stay” in the U.S. by even one day, results in immediate cancellation of that person’s B1/B2 visa. Another risk that many visitors do not understand is that even if they apply to extend status in the U.S. and are legally approved, once they leave and later try to return to the U.S. again too early, they risk heightened scrutiny about their intentions in the U.S.. In some cases, visitor’s even risk denial of entry or even B1/B2 visa cancellation if the officer believes they are seeking to reenter the U.S. with the intention to change or extend status again. Finally, if an individual applies to extend or change status in the U.S., then leaves the U.S. after his or her “period of authorized stay” in the U.S. has expired, before the USCIS has issued a decision on their case, again, it results in immediate cancellation of that person’s B1/B2 visa.
For example, Mark and his wife come to the U.S. on vacation to visit family and were issued authorization to stay in the U.S. for six months. However, during their stay, they decide that since Mark has some extra vacation days through his employer in Jamaica, the couple wants to extend their vacation and drive up to Washington DC with some friends for several more months. So the couple, who have been in the U.S. for five months, innocently files form I-539 to request to extend their stay in the U.S. for one more month. Unbeknownst to Mark and his wife, the application they just filed will have serious negative consequences that they could never have imagined. After filing the application, they receive a receipt from the USCIS and optimistically anticipate receiving a quick response so they can plan the trip. But weeks go by and no response is received. Their authorized stay expires and a week later they call the USCIS 800# and are told that their case is within the normal processing time (for example, four months) and that another inquiry can be make only after that period of time. They ask if they can stay in the U.S. while the case is processing and are told that they can, until they receive a decision. The couple decides to take the trip to Washington DC and then to return home to Jamaica, believing that since they filed the form I-539 to extend their stay they followed the law and it was not their fault that the USCIS processing time took so long.
They return home and decide to return to the U.S the next summer and take the kids to Disney World, however, once they arrive at Orlando International airport, the officer informs them that they overstayed in the U.S. the last time they visited and so their U.S. Tourist Visas are automatically cancelled. The officer cancels the visas and tells the family they cannot enter the U.S. and must return on the next plane back to Jamaica. Once they return home, Mark makes an appointment at the U.S. Consulate in Kingston and explains that he never intended to stay in the U.S. illegally and had filed form I-539 before the six months authorized period had expired, it wasn’t his fault that the USCIS took so long to process the request and they had to return home while it was still pending. The officer tells them it does not matter and that based upon the couple’s overstay, no new visa could be issued.
This is not an extreme example, it’s quite typical these days, given the baffling policies of our U.S. immigration system. So clearly, filing any application to extend or change status in the U.S. is risky and should be very carefully considered before any application is made. Given this, in most cases its best to avoid ever making any request to extend time inside the U.S. and to apply for student and other non-immigrant visas abroad through the U.S. Consulate.
The Green Card Investor Visa Just Got More Expensive
The EB-5 Immigrant Investor Visa is often used by wealthy foreign investors to obtain green cards in the U.S. for themselves and their families. Created in 1990, the law was enacted to attract foreign investors desiring to obtain U.S. Residency in exchange for investing a substantial amount of capital in a business enterprise, which results in creating jobs for American workers and helping the U.S. economy.
Under the regulations, there are 10,000 visas available each year for such investors, with 5,000 reserved for investors who invest in one of the many "EB-5 pilot programs” designated for areas in the U.S. which have high levels of unemployment. Currently, the regular minimum investment amount is $1 Million and the reduced amount of $500,000 for investments in “regional centers” under the pilot program.
The program is extremely popular, so much so that there are never enough EB-5 visas available for some countries like China, with investors being forced to wait for many years in line to obtain a visa under the program. Under new rules, things just got a little tougher for foreign investors planning on applying for such visas. Beginning November 21, 2019, new regulations for the EB-5 program will take effect, increasing the minimum investment amount from $1 to $1.8 Million and the minimum “regional center” investment from $500,000 to $900,000. Those applying for the program before the deadline will still be eligible for the lower investment amounts.
Answer: That’s a great question. Under Immigration regulations, brothers and sisters of U.S. Citizens are in a category called F4, which includes the sibling, his or her spouse and all minor children (under age 21). As a result, any spouse or child the foreign sibling acquired either before or after the U.S. Citizens sibling files the immigration petition, will be automatically included and allowed to immigrate to the U.S.. Therefore, you’re coming marriage and new baby will not have any bad consequences on the Immigrant petition filed on your behalf by your U.S. Citizen sister. It usually takes 13+ years for an immigrant visa to be available to F4 siblings and their families. Since your sister filed for you in 2005, you have another one to two years to wait, getting very close! Once the immigration process is in the final stages, I can take over the case and notify the National Visa Center that you have married and provide all the relevant information including Birth and Marriage Certificates. I hope this is helpful
Question: I am from Peru. I have my sister in America who is a citizen. She filed my immigration papers back in 2005 so I can immigrate there. I have a question. I live with my girlfriend and we just found out she is pregnant. We plan to get married before the baby is born, but worry that might make me have to wait longer to come to America. Can you please explain this to us and let us know how my wife and baby can immigrate to America to join me?
It’s also important to remember that the English translation must be an exact, full and complete translation of the foreign language document, not just an excerpt.
Here's a sample Attestation of Translation:
I Jose Gomez, hereby certify that I am fluent in the English and Spanish languages, and that the attached document is a complete and accurate translation of the document.
Typed Name: Jose Gomez
Address: 1234 Jones Street, Miami, Fl 33180
Similarly, immigrant children who are dependents of parents who have been sponsored by a relative in the U.S. are only eligible to immigrate to the U.S. along with their family if they are under age 21 when the family immigrates. The age of the child is particularly important for children whose parents are sponsored by U.S. Parents and Siblings, where the waiting line for a visa can be 10 -12 years or more, since it is much more likely that the child will turn age 21 and age out.
The Child Status Protection Act ("CSPA") was enacted into law in 2002 to assist children who turn age 21 and would normally “age-out”, meaning become ineligible to immigrate as a minor (under age 21). The CSPA changed the process for determining whether a child has "aged out" (i.e. turned 21 years of age before being issued an immigrant visa or adjusting status) for the purpose of the issuance of visas and the adjustment of status of applicants in most immigrant categories. Under CSPA, the age of a child can be reduced by the time that the I-130 petition was “pending” with the USCIS, in many cases bringing the child’s age down under age 21 for immigration purposes.
There is a specific formula for determining whether a child's age is protected by the CSPA and there are required dates that must be plugged into the formula. When an immigrant visa first becomes available to the child and the child is age 21 or older, the amount of years which the I-130 petition was being processed by the USCIS can then be subtracted from the child’s current age, to determine whether they are technically still under age 21. If so, the child can still immigrate as a minor child.
For example, if an I-130 has been pending for 1095 days (3 years) and a child is age and a child is 22 years old about to turn age 23, we can deduct 1095 days from the child’s age to bring the child under age 21. The solution to “age out” issues is in filing immigration applications for relatives with minor children and your own minor children early, don’t wait until it’s too late.
You can get free information about preserving your child’s “Minor” age status by calling our office at: 954-382-5378.
Just a day later on Saturday November 2nd, a federal judge in Oregon issued a temporary block to the policy, giving the Trump administration and plaintiff’s 28 days to gather evidence to present to the court in the matter.
Under the policy, most immigrants would be required to provide proof that they are either already covered by U.S. health insurance or have the financial ability to purchase insurance for themselves and all immigrating family members within 30 days of entry into the U.S.. Catastrophic, short term and other health insurance policies will be eligible, but those under Medicaid and the Affordable Care Act (Obamacare) where subsidies are provided by the federal government are excluded.
According to the Migration Policy Institute, application of the new requirements would deny immigrant visas to some 375,000 immigrants each year. It would apply to most immigrants who have not yet had their consular interview or been issued an Immigrant Visa in their passports, including family members sponsored by Citizens and Residents who have been waiting in visa lines, some as long as 20 years (adult married children of U.S. Citizens from Mexico). Stay tuned…