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POSTING DATE: March 11, 2019
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Questions & Answers
This Week's Immigration News
Question: I have a question about my name. my husband and I just got married and I want to use his last name. the problem is that all my documents like my passport has my old name and I am afraid to put my married name on the immigration form in case they deny my case due to that. Can you please let me know if you do my case, can you file the applications with me using my married name, is that possible?
Answer: That is a great question. In most cases, an immigrant must use their legal name (from their birth certificate) or from a previous marriage if they changed their name as part of matrimony. Failing to provide a full legal name is one of the most common mistakes made on immigration forms, causing case delays and even denials. However, in the case of marriage, immigration regulations allow alien spouses to take their sponsoring spouse’s name or even hyphenate it with their last name, since the marriage certificate itself provides the basis for a legal name change. So, even though a foreign spouse’s formal documents such as the passport and birth certificate have another legal name, the marriage certificate is used as an authorized document which allows the legal use of the new name. So for instance, if your last name is Smith and your husband’s last name is Jones, you can take his last name Jones, or even put both names together as Smith Jones or Smith-Jones. Similarly and not commonly known, men can now take their spouses last name as well in the same way. So yes, since you want to take your husband’s last name, we would put that as your last name on all your immigration forms and that will legally provide you with a name change as soon as your work permit is issued in about 4-6 months.
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Department of Homeland Security Warning - New Scams Against Immigrants
The U.S. Department of Homeland Security (DHS) recently issued a fraud alert to warn immigrants of new scams being perpetrated by criminals to extort money from unsuspecting victims. Scammers are using a technique called “telephone spoofing” to call immigrants using a false caller ID which indicates the call is coming from “DHS”, with “U.S. Immigration” or other government entities, so it seems authentic.
The scheme also includes emails sent to immigrants with the email USCIS.org, seeming to come directly from the USCIS. The perpetrators pretend to be government employees in order to obtain or verify personal information, such as name, social security number, alien registration number, address, banking and credit card information.
Senators Urge Trump To Provide TPS To Venezuelans
Last week some 23 Democratic and one Republican Senator sent a request to the Trump administration to provide temporary protected status (TPS) to Venezuelan citizens currently in the U.S., to protect them from deportation. The letter comes following a new bill introduced in the Senate to grant TPS status to eligible Venezuelans, called the “Venezuela TPS Act of 2019”.
The Whitehouse has remained silent so far, likely weighing the option of granting Venezuelans TPS status, against the prospect of angering Trump’s anti-immigrant “build the wall” base. Odds are, given his ongoing anti-immigrant rhetoric and need for strong base support as he weathers all the congressional investigations against him, Trump will likely not agree.
If you have been reading my posts over the years, I am sure you are tired of having me repeat over and over again how important it is to be informed about your immigration case, including qualifying, understanding the typical process, timing and staying updated on your case status. So assuming you have done all that, what happens when your case remains pending past the posted processing times? Or, the online status says the USCIS sent you a notice, but you never received it after 30 days? Well, a helpful tool which can sometimes provide you with updated information or a duplicate notice is to file an USCIS E-Request. USCIS allows the E-Request to be filed for the following reasons:
• Your case over the normal processing times posted on the USCIS website
• You did not receive a notice, card or document by mail
• You changed your address online as required, but the USCIS is still using your old address
• A notice or card you received has a typographical error
If your issue falls within one of these categories, you can go online to the USCIS E-Request webpage and place what is referred to as a “Service Request”, by fully completing the online form. Have your receipt handy so you can input the correct information. Once the request is submitted, you will receive a number and estimated completion date to hear from the USCIS regarding your request. This is usually within 15-30 days. Note that E-Requests complete online will not be allowed to be submitted for a case which you believe it pending too long if your case is not over the normal processing times posted on the USCIS website.
After your Service Request has been submitted, you can expect one of the following responses:
1. You will receive the pending notice, approval, document or notice of correction prior to the USCIS estimated completion date;
2. You will receive a response from USCIS stating the case is within normal processing times and they will process the case as their resources allow; or,
3. You will not receive a response at all. In these cases, wait at least 30 calendar days from the date you filed the previous Service Request, then either place an new one, explaining that the previous one has not been answered, or call the USCIS 800#.
If all else fails and you have filed the E-Request, gotten no response after 30 days, called the 800# and still gotten no response within another 30 days, you should probably go the next step and contact a qualified immigration attorney to sort out your immigration issue and get your case moving again.
What is An E-Request and How Do I Make One?
While posing as law enforcement or immigration officials, the callers threaten victims with arrest unless they make payments to the scammers. It’s important to note that no government employee calls or emails individuals to verify personal information or to demand money, ever.
Those who receive any such calls or emails are urged to report the crime to: DHS OIG Hotline (1-800-323-8603) or file a complaint online
This comes on the heels of the Department of Homeland Security (DHS) once again extending temporary protected status (TPS) for citizens from Sudan, El Salvador, Haiti and Nicaragua in accordance with a Federal Court order to do so after Trump abruptly cancelled the programs last year. In compliance with the court order, the DHS filed a notice last week extending TPS status for the four countries until Jan. 2, 2020.
Question: I have a sibling filing f4 category, the entire process is very confusing. Can you explain the processing times and the dates published by the visa bulletin? Currently the processing time for f4 is 2009 and the visa bulletin is 2004. My case was filed March 2011 and approved January 2015. Thanks in advance.
Answer: I understand, it can be very confusing. Here is a rundown of how it goes. The F4 sibling immigration category has a visa waiting line of about 14 years. The reason for the long waiting line is that there is more demand for immigrant visas in this category than there are visas available. For instance, if there are only 10,000 visas each year for siblings and their spouse and minor children, but 20,000 people apply, each year the category has a longer and longer line. The family sponsorship process has two parts, first, filing the I-130 family petition with the USCIS and getting an approval several years later, then finally waiting for a visa to be available in the F4 category.
In your case, your brother or sister filed the I-130 petition for you in March 2011, which was approved several years later. The date of filing the I-130 is generally the “priority date”, which tells you what date you are in the F4 visa waiting line. You are currently in the second phase of the immigration process, waiting for a visa to be available and watching the monthly Visa Bulletin published by the State Department. Right now, there are only visas available in the F4 sibling category (Final Action dates) for June 2005, which means that even though you have already waited 8 years (from 2011 til now, 2019), you still have another some 6 years to go. Its important to understand that the I-130 approval that your sibling received does not mean there is an immigrant visa available to you at the time of approval, it just meant that you passed the first part of the process and now have to wait until the visa bulletin shows that the priority date is current for your filing date in March 2011 or after. Make sure that your sibling keeps the National Visa Center updated on his or her current address so that when the time comes, he or she can receive notification that your consular processing has begun. I hope this has been helpful to you.
Question: I came to florida several years ago to attend a training course and brought along my 12 year old daughter. After the course ended, I got offered a job and I stayed and worked under the table. For the past year, me and my boyfriend has been dating and now we want to get married. He got his green card about 3 years ago through his dad. My question is once we get married, can he add me on his green card? What about my daughter? Will we be legal after that? When will I get my drivers license, work permit and social security number? Thank you for your answers.
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 even if the U.S. Resident (green card holder) spouse filed an I-130 family petition, it 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. If the foreign national spouse files a petition to adjust status to Residency, the case will be denied and under Trump administration policies, this could lead to deportation. 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 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 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. The good news is that since you will be married before your daughter turns age 18, your husband will qualify to sponsor her as his stepdaughter when the time comes. I hope this is helpful to you.
USCIS Processing Times For Common Immigration Applications
Filed At USCIS Service Centers
Type of Immigration Application Average USCIS Processing Times
Application for Employment Authorization 4-6 Months
(Form I-765)/Travel Permission (Form I-131)
Application to Replace Permanent Resident Card/Green Card 4-9 Months
Student Visa & Applications to Extend/Change Nonimmigrant Status 8+ Months
Petitions for Alien Relatives (Form I-130):
U.S. citizen filing for a spouse, parent, or child under 21 8+ Months
Permanent resident filling for a spouse or child under 21 19-24 Months
** Total waiting time for USCIS processing and an Immigrant Visa to be available in the Immigration F2A category is about 2+ years
U.S. citizen filing for an unmarried son or daughter over 21 30-40 Months
** Total waiting time for USCIS processing and an Immigrant Visa to be available in the Immigration F1 category is about 7-8 years
Permanent Resident filing for an unmarried son or daughter over 21 40-50 Months
** Total waiting time for USCIS processing and an Immigrant Visa to be available in the Immigration F2B category is about 7 years
U.S. citizen filing for a married son or daughter over 21 80-100 Months
** Total waiting time for USCIS processing and an Immigrant Visa to be available in the Immigration F3 category is about 12+ years
U.S. citizen filing for a brother or sister 35 Months
** Total waiting time for USCIS processing and an Immigrant Visa to be available in the Immigration F4 category is about 13+ years
Naturalizations are processed at the local USCIS Field offices and have an average processing time from 6-12 months, depending upon the district.
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. 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.