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POSTING DATE: April 1, 2019
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Questions & Answers
This Week's Immigration News
Question: Our daughter was born in the U.S. many years ago while me and my husband were there on his work visa. Once his work ended, we came home to Bahamas. My daughter is in the U.S. finishing up college and just turned 21 years old, so she is going to sponsor me and her father. We also have a younger daughter age 18 that we want to immigrate with us to the states. Since she is a minor, I assume she can just be added onto our immigration papers. My husband says the age is 18 for a minor and I say its 21. Can you please help clear this up for us, thanks so much.
Answer: This is a very common question and often very confusing to Parents of U.S. Citizens who have minor children. Parents of U.S. Citizens are called “Immediate Relatives” (as are Spouses and Minor children).U.S. Immigration regulations only allow U.S. Citizens to sponsor each of their Immediate Relatives separately and no dependent spouses or minor children are able to immigrate along with them. For instance a U.S. Citizen child cannot sponsor his Parents together as a couple, instead, each parent must be sponsored separately in a separate family petition. Therefore, your daughter can sponsor you and your husband (her father) separately and you can immigrate to the U.S.. however your younger daughter will not be able to immigrate along with you. The issue of whether or not your younger daughter is a minor does not come into play, since she would not be eligible to accompany you under any circumstances. However, it is important to know that a child remains a minor until age 21.
It currently takes between 8-12 months for Parents of U.S. Citizens to immigrate to the U.S., so here are some options for you to consider for your younger child:
1) Once you obtain your Green Card you can sponsor her immediately. Children of U.S. Residents who are under age 21 are in the Immigration category called F2A for minor children of U.S. Residents. The visa line in that category is currently about 2 years, so you should not delay in obtaining your Residency and then filing for your daughter immediately thereafter. If you delay and she reaches age 21, she will no longer be considered a minor and instead be in the adult, single child of U.S. Resident Immigration category called F2B.The visa line in that category is currently about 7-8 years.
2) In order for her to stay in the U.S. during the immigration process, you might consider having her apply for an F-1 student visa so she can attend school and stay in legal immigration status until it is time for her to be eligible to immigrate and obtain her residency.
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Every year hundreds of thousands of young students from countries around the world achieve their dream of studying in the U.S. in programs ranging from a two year Associate’s degree to a Phd. And while most receive a great U.S. education, many are short sighted, choosing degree programs which earn them little more than a degree and one year work permit after graduation, with no hope of obtaining extended work authorization or an H-1B work visa in the U.S..
American students can afford the luxury of taking liberal arts programs, history, archeology and similar degrees because they can work anywhere after graduation without restriction. However, international students who do the same often cheat themselves from all the post-graduation immigration options available, which would have allowed them to work for up to 3 years and then apply for an H-1B work visa and even employment based U.S. Residency, instead of just getting one year to work and then having to leave the U.S..
The problem is that young students everywhere often choose degree programs based upon what they want to study, not on what they should study, in order to get the best opportunities upon graduation. This is the point at which parents of international students should become heavily involved in the process and educate themselves about an investment in their child’s U.S. education and the potential payoffs, versus the high cost of international fees. International students often pay three times or more in tuition rates than U.S. students.
Tips For International Students – Choose Your Degree Program Wisely Based Upon Immigration Opportunities After Graduation!
Never Send An Immigration Application Without Making Copies Of Every Document
One of the most common problems immigrants have in determining their immigration status is that they don’t keep copies of the petitions filed with Immigration (USCIS). The best advice to avoid this is:
1) Make a copy of EVERYTHING, including all documents you file with your petition
2) Send your immigration petition package and all follow up documents to the USCIS using Priority Mail from the U.S. postal service or Fed-ex/UPS, NEVER use Certified Mail! Make sure you track the package to see the date of delivery and print out the confirmation for your records in case you need to prove it later.
Did You Know That Residents Who Owe Taxes
Can Still Qualify For Naturalization?
Understanding The Real Consequences For Overstaying A U.S. Visa
With illegal immigration and the border wall in the news almost daily, it’s easy to overlook the fact that the majority of immigrants inside the U.S. who lack immigration status actually came here legally on a visa and simply overstayed. But of course you never hear about that because Trump doesn’t care about facts when it comes to immigration. According to Department of Homeland Security (DHS) statistics, of the approximate 53 million foreign visitors who legally entered the U.S. in 2017, more than 600,000, overstayed their visas by the end of that year. This is similar to years past and likely to current numbers, which will be reported by the DHS next year.
Many U.S. Residents (Green Card holders) who owe taxes to the Internal Revenue Service (IRS) often 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 to provide the USCIS with the documentation required to show how much you owe the IRS and prove that you have been making payments.
Parents whose children choose dead-end degree programs end up paying thousands for tuition and living expenses for their children to attend a U.S. college, only to find that their children graduate, work one year in the U.S., then must return home without any advanced career opportunities available to them in America. Students are equally shocked to learn that the liberal arts degree they hold was enjoyable, but literally useless for any U.S. work visa options following graduation.
The reason is that there are very limited options for international students who have at least a Bachelor’s degree to obtain work visas in the U.S.. The H-1B work visa allows U.S. employers to sponsor foreign workers with the minimum of a Bachelor’s degree, but only in certain professions, which the USCIS believes are considered “specialty occupations”. In addition, under new Trump policies, it is getting much more difficult to prove that a job offered by a U.S. company qualifies as a “specialty occupation”, even for typically professional jobs like those for engineers and accountants. The most difficult degrees for H-1B work visas, other than general degrees for liberal arts, graphic design, fine art, communications, music, airline pilot, etc and now even including general degrees in business and computers.
This is where college degree programs in “Stem” fields, Science, Technology, Engineering and Math have so much importance to international students. Stem field professions are in high demand in the U.S. technology sector and are fields which there are a shortage of U.S. workers to fill the available jobs. As such, under immigration regulations, international students who graduate with a minimum of a Bachelor’s degree in a STEM field are entitled to three years of work authorization called “Optional Practical Training” or OPT, which allows them to work for U.S. companies following graduation. They are also eligible to be sponsored by a U.S. company for an H-1B work visa in the yearly H-1B lottery, and if they do not make it into the first year, they have several more years to try. Most importantly, it is much easier for graduates of STEM fields to be sponsored by a U.S. company for a Green Card
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). Issues which have the largest 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 payments, similar to IRS taxes, 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, 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 assist 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.
Question: I got married to my wife 3 yrs ago and am waiting for my permanent green card to be approved. My question is when can I apply for my USA citizenship, isn’t it after I have been married for 3 years?
Answer: Eligibility to file for naturalization is not based solely upon how long you have been married to a U.S. Citizen, instead, it is based upon how long you have been a U.S. Resident. The rule is that a U.S. Resident (conditional or permanent) who is married and living together in a real marriage with his or her U.S. Citizen spouse, can apply for early naturalization once they have held residency status for two years and nine months. This is true even if the Removal of Condition petition remains pending. In these cases, USCIS policy says the officer should adjudicate the Removal of Condition application for permanent residency along with the early naturalization application at the same time. This can theoretically speed up a pending Removal of Condition case. I hope this is helpful to you.
Question: I have been on a student visa for the past 3 years and am graduating this june with my Master’s degree. I know that I can get 1 year of work authorization after graduation. My boyfriend is a resident through his parents and can apply for his citizenship in 2021. If we get married and he applies for my green card, how long should it take for me to get my residency in the U.S.? Do I have to stay in school during the whole immigration process?
Answer: Great question. The Immigrant visa process right now for the spouse of a U.S. Resident is estimated at about 2 years and once the spousal immigration petition is filed, spouses who are inside the U.S. cannot legally wait inside the U.S. to receive a Green Card, unless they are here on an F-1 or some other legal visa which allows them to legally stay in the U.S.. In your case, once you marry your U.S. Resident boyfriend, you must continue to maintain your legal status in the U.S. until an Immigrant Visa becomes available. Since you are currently in legal status on an F-1 student visa and will get your post graduation work permit for a year, after that, you have the option of getting a new I-20 and getting back in school in order to maintain legal status here for another year that it will take for you to be able to file for your residency. If you fail to maintain status, you will lose the chance to be able to obtain a green card, until your husband becomes a U.S. Citizen.
3) Keep the USCIS receipt (I-797 Notice of Action Receipt) as soon as you receive it-it is like GOLD! In many cases, when your petition could be processing for several years, you need to have proof of filing, as well as you’re A# (Alien Registration Number) and the SRC (Service Center Number) so you can periodically check the status of your case on the internet.
The top fifteen countries with the most overstays includes: Brazil, Canada, China, Colombia, Dominican Republic, France, Germany, India, Jamaica, Mexico, Nigeria, Philippines, Spain, U.K., Venezuela. So clearly, according to statistics by his own government agencies, Trump’s obsession with the wall and focusing on immigrants from Mexico and other Latin American countries coming in through our southern border is absurd. No doubt because Trump would rather hear his supporters chanting “build the wall”, rather than “stop those tourists”. In order to curb the number of visa overstays, the DHS has stepped up its efforts in the past several years by more extensive screening at airports and ports of entry, which includes searching electronic devices and social media to confirm the purpose of an individual’s visit to the U.S., calling family members and others listed as contacts by the visitor and even sending follow up email reminders that the period of stay will soon expire. These days, it’s not unusual for visitors to receive much less than six months authorized periods of stay, with some as little as several weeks.
So what happens when an individual overstays a visa? Well, there are different consequences for those who overstay and remain in the U.S., than for those that overstay and then later leave the U.S.. Of course the best option is always to avoid overstaying a visa at all costs. For visitors, this usually means making sure to double-check the I-94 printout on the Customs and Border Patrol website to be certain to leave the U.S. before the stay expires and to avoid filing any immigration application to extend or change status in the U.S.. Such applications usually take up to six months to process, going past the applicant’s “authorized period of stay” and when denied, leave the individual with no options. Under the new NTA policy, when an application to extend or change status is denied, the USCIS now initiates deportation proceedings against the applicant. Those legally in the U.S. on work and investment type visas should file for renewal six months in advance and use premium processing when available, so that they remain in legal status during the renewal process. This keeps options open in case a renewal is denied, allowing the individual to perhaps file another type applications to stay in legal status.
Individuals who overstay a visa by even one day, automatically lose visa status (called “Visa Voidance”) and once they leave the U.S., cannot re-enter without reapplying for a new visa at the U.S. Consulate abroad. And of course obtaining a new U.S. visa after an overstay is a very difficult, if not impossible task, which can lead to successive visa denial for many years.
Those who overstay and then remain in the U.S. for a period of time before leaving face much tougher consequences and are barred from returning to U.S. for 3-10 years, depending on the period they overstayed. Here’s a rundown:
•3-year bar: When an individual overstays in the U.S. for six months or more, once they leave they are barred from reentering the U.S. for three years from their date of departure. •10-year bar: When an individual overstays in the U.S. for one year or more, once they leave they are barred from reentering the U.S. for ten years from their date of departure. •Bar to Change of Status/Extension of Stay: When an individual overstays in the U.S., even by one day after their authorized period of stay, they become ineligible to extend their stay in the U.S. or change their status to another nonimmigrant status. The only immigration option is obtaining residency through a real marriage to a U.S. Citizen.
Clearly, overstaying a U.S. visa has unwelcome consequences which take effect immediately upon the first day of overstay, so the best way to avoid that is to preplan your immigration options far in advance of your visa expiration.