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Immigration News & Updates eNewsletter
POSTING DATE: July 10, 2017
Immigration News & Updates eNewsletter © 2011 - 2017
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Questions & Answers
This Week's Immigration News
Question: I am a resident and filed for my citizenship last year, now I just recently got my interview and I was approved. I will do my swearing in ceremony probably this month or in august at the latest. My girlfriend has a multiple visa for USA and every time she comes she gets 6 months to stay. She came in January 2017 and just went back home for a short trip before returning back to the U.S. and we plan to get married and I file her immigration papers. I have a question, she just left the U.S. last week and went home before the 4th of July, so if she stays out a few weeks and then comes back to the USA, will it be legal?
Too often, many Immigrants hear from friends and family that they can apply for Asylum in the U.S., then automatically get a work permit and authorization to stay in America legally.
What they often don’t understand until it’s too late, it’s that while Immigrants who apply for asylum are granted work permits and are authorized to stay in the U.S. while waiting for their asylum case to be processed, in the end, more than 50% of all Asylum cases are denied and those who applied, deported. In fact for many, it’s a guaranteed route to deportation, especially National’s of countries which are typically not known for persecution of its citizens, like Caribbean countries, most Latin American countries, Canada, Europe, etc.
Understanding Harsh Realities and Consequences of Applying For Asylum
Answer: That’s a good question. It’s not an issue of whether or not its legal, it’s an issue of whether your girlfriend can convince the officer at the border that she is eligible to re-enter the U.S. so soon after she stayed in the U.S. for nearly six full months! I will say that it could be risky for her to try to enter again so soon after staying for so long, although it really depends a lot on the officer at the border. The risk is if she tries to reenter too soon and is denied entry, it could negatively affect her ability to come back to the U.S. in the near future. Foreign nationals who stay in the U.S. for extended periods are assumed to be working or living in the U.S. illegally. The best approach is for her to stay out at least several months before trying to reenter.
Helpful Immigration Tips You Can Use
Question: My wife got her green card through her parents last year and then we got married recently in 2017. I have a tourist visa for the states, and will be going to visit her next month. Will it be possible for her to file a petition for me and for me to be able to stay in the U.S. and work while I am waiting for my immigration to go through? I want to do everything right, I know so many people that do it wrong and mess up their immigration case, I want you to handle it for us. Thank you.
Answer: It’s very important to understand that USCIS regulations are very different for Spouses and Children of U.S. Citizens compared with U.S. Residents. U.S. Citizens have lots of benefits. They can sponsor their spouse, children and parents (referred to as “Immediate Relatives”) while they are in the U.S. and they can file to adjust their status to U.S. Residency immediately, without the need maintaining immigration status.
However, the law is very different for spouses and children of U.S. Residents, since they must wait until there is an Immigrant Visa available in order to obtain U.S. Residency. Currently, it can take a year and a half or more for a visa to be available once the family petition is filed. In such cases, spouses and children of U.S. Residents who are the beneficiaries of a family petition and who want to adjust status to U.S. Residency inside the U.S. can only stay in the U.S. and wait for an Immigrant Visa to be available if they continue to maintain legal immigration status. Those who fail to maintain legal status are not eligible to obtain a Green Card inside the U.S. until the sponsoring U.S. Resident becomes a U.S. Citizen. There are options available which allow spouses and children of U.S. Residents to maintain legal status, including F-1 Student Visas and some work and investment visas. Note that such visas should optimally be obtained before the Immigrant family petition is filed.
In your case, since your wife is a Resident and not a U.S. Citizen, you are not eligible to stay in the U.S. and wait until an Immigrant Visa is available (according to your “Priority Date” on the I-130 petition). If you do, you may lose your eligibility to immigrate for some time to come. You may come and visit during your immigration process, but plan to go back. Of course I can take care of your immigration residency process and ensure that everything is filed correctly and the case moves smoothly. See you next month.
Family immigration can often seem like a very confusing, mysterious process that makes little sense and takes many years to accomplish. And while it is frustrating to wait so many years in the process, it’s beneficial to have a good understanding of what the process is and why it may takes so long for a family member to immigrate to the U.S..
All family members (with the exception of “Immediate Relatives” who are spouses, minor children and parents of U.S. Citizens), who are sponsored to immigrate to the U.S. to obtain Permanent Residence (the “green card”) must go through the U.S. visa quota system. The visa quota system is essentially a series of long lines for each family category, all waiting for a visa to become available.
How Long Will It Take For My Relative To Immigrate?
Merely coming from a country like Venezuela, Iraq, Syria where there are political upheavals, food shortages and security issues, does not automatically qualify an Asylum applicant. Nearly everyone in a country like for instance, Venezuela is suffering under the stress of the country’s instability and political uncertainties, but only those who can actually document that they have been personally persecuted or have a “well-founded fear of persecution” based on their (1) political opinion, (2) religion, (3) race, (4) nationality or (5) membership in a particular social group, qualify. It’s important to understand that simply being a citizen of one of these or many other countries around the world, regardless of your political affiliation, religion, race, nationality or group membership does not automatically equal eligibility. For instance, just being a member of the political “opposition” against Maduro in Venezuela does not qualify a Venezuelan for Asylum in the U.S., unless the Venezuelan national is able to prove with documentation that he or she has in fact been personally persecuted as a result of their political opposition to the Maduro regime or that due to documentable circumstances, they can prove a “well-founded fear that they would be persecuted should they return to the country. And without this critical proof, Asylum will likely be denied and deportation procedures begun. In fact, under the Trump Administration, qualifying for Asylum just got more difficult and applying more risky, since he has indicated plans to expedite Asylum processing and deportation.
Every day I get calls from Asylum applicants who want to apply for a work or investment visa, who would otherwise have qualified, if not for having applied for Asylum and letting their I-94 or period of authorized stay in the U.S. expire. It’s very important to understand that applying for Asylum does not preserve legal status and once a person’s period of authorized stay under their visa has expired, they become ineligible to apply for nearly any other type of immigrant or non-immigrantvisa. In fact, one of the only immigration options available to an Asylum applicant is through a real marriage (for love) to a U.S. Citizen.
Asylum should always be the last resort, not the first option, because once an individual files for Asylum, they close the door on nearly every other immigration option and put all their hope on winning a case, where the odds are already against them. Immigrants often see that their friends or family members applied for Asylum in the U.S. and they have been here for many years going through the process. What they don’t often understand is that simply being in the U.S. going through the Asylum process most often does not mean that an individual has been granted Asylum or residency, in fact the longer a person has been in the process may mean that they have waited years for their Asylum interview, been denied, waited another few years for their Deportation hearing, been denied and either appealed or simply ignored the Deportation order.
So with all this said, the most important takeaway is this:
1) Never file for Asylum just because you heard that you could get a work permit,
2) Have an attorney who specializes in Asylum evaluate your case before you file,
3) Remember that just because you can apply for Asylum, does not mean that you should!
4) If you apply for Asylum, then later decide to leave the U.S., your U.S. Tourist visa is automatically cancelled.
Understanding Family Sponsored Immigration Visas,
Priority Dates and the Visa Bulletin
There are approximately 226,000 visas available each year to be distributed among the various family categories. And because the demand for family sponsored visas each year always far exceeds the number of visas available, the family lines grow longer and longer. A family members “place” in the visa line is determined by the “Priority Date” they were assigned when their U.S. Citizen or U.S. Resident family member filed the I-130 application to sponsor them.
The “Priority Date” is the date the I-130 was filed. So, if you were going to picture it, imagine that once the I-130 petition is filed, the family member is given a ticket with a certain date on it (priority date) and placed in a line to await his or her date being called. All the individuals ahead of the family member have earlier dates on their tickets, because the I-130 petition was filed by their relative at an earlier time, and those behind them were filed later. So as time goes on, the line moves up and the family member gets closer and closer and while it may take many years, eventually they do get to the front of the line. Once they reach the front of the line, they obtain their long awaited “Immigrant Visa” from the U.S. Consulate and finally immigrate to the USA.
Keeping track of these visa numbers, Priority Dates and quotas is a complicated matter given to the U.S. Department of State (DOS), which uses data and calculations to predict when a visa will be available in any particular family category in order to establish which date gets to move to the front of the line. The DOS publishes these figures each month in a notice called the “Visa Bulletin” which is available on the DOS website. To complicate matters, not all countries have the same line in the same family categories as others. This is because there is a higher demand for visas from some countries than from others. For instance, the waiting line for an adult, single child (over age 21) of a U.S. Citizen is about 7 years for most countries. However for Mexicans, the wait is over 20 years, due to high demand built up over the years. Because of this, the Visa Bulletin chart categorizes visa availability by dividing is among high demand countries such as China, India, the Philippines & Mexico, then a general worldwide category which everyone else falls into.
And just to confuse the matter further, Visa dates don’t always move forward, sometime to our despair, they actually move backward and go further back in time. This is something called “regression”. It is really important to understand even when a family member’s Priority Date becomes current and he or she is right at the front of the line ready to step up to the window and get their visa, if they are still processing and haven’t yet attended their immigrant appointment, if the Visa Bulletin date regresses, they must go back and get in the line again and wait until their date is called again.
While complicated, the reason for this is that the DOS publishes the Visa Bulletin based upon data predictions of how many visas will be used and when a visa will be available. So to try to make some sense of it, if the prediction is that 1,000 family members (including their dependents) in the line ahead would be issued visas, but instead, those family members had more dependents than predicted, so they had to actually issue 1,500 visas, then that will delay those waiting in the line behind.
As a result, once a family member is notified by the National Visa Center (NVC) that it is time to start processing for the final phase of immigration, family members and sponsors should avoid delay and quickly provide the required information and financial documentation to the NVC in order to obtain their immigrant visa as soon as possible….in case the line regresses.
You can call our office to get free information about how long it will take for your family member to immigrate, by calling (954) 382-5378.
Conditional Residency For Spouses of U.S. Citizens
The foreign spouse of a U.S. Citizen who has been married for less than two years at the time of obtaining residency, only receives a two-year Conditional Resident status.
Unlike regular U.S. Residents who obtain a Green Card through family members, employment or other means, husbands and wives of U.S. Citizens who got married less than two years prior to U.S. Residency approval, only receive a two-year Green Card, rather than the full 10 year Permanent Residency. In order to qualify for removal, the foreign and U.S. Citizen spouses must file a request for removal of the conditional status within the 90 day period prior to the conditional Green Card expiration.
In order to qualify for removal of the conditional status, a couple must continue to not only be married, but to live together as a husband and wife. The removal of condition request must be submitted with extensive supporting documentary evidence that the couple has and continues to live together in a real marriage. One of the biggest misconceptions that conditional residents have is the belief that as long as they remain “married” to the U.S. Citizen spouse, but not actually living together, they will still qualify result in tragic consequences which often leads to loss of Residency and in some instances, deportation.
Conditional Residents can file a removal request without the U.S. Citizen spouse in cases where the couple has divorced, where there is documented domestic violence and when a spouse is widowed. However, the burden of proof is on the conditional resident spouse to provide the USCIS with extensive evidence that prior to the divorce, domestic violence or death of the U.S. Citizen, the couple were living together in a real marriage.
You can find out more about Conditional Residency through Marriage to a U.S. Citizen
by calling our office at: 954-382-5378.
Immigration How To:
How does the immigration process work for adult children of Citizens?
Adult children of U.S. Citizens are in immigration categories which usually take many years to wait for an Immigrant Visa in order to immigrate to the U.S..
The process can be frustrating and not easily understood, so a run-down of the how the Immigrant Visa process generally goes as follows:
1)Your Parent files a Family petition with the USCIS 2)I-130 Receipt issued by the USCIS 3)USCIS processing time currently takes about 4 years or so 4)USCIS issues I-130 Approval Notice to your Parent 5)USCIS transfers the case to the National Visa Center to put the case in the queue waiting for an Immigrant Visa to be available (according to determinations made by the State Dept) as reflected in the monthly Visa Bulletin 6)National Visa Center (NVC) sends letter to U.S. Citizen Parent indicating that the case is pending visa availability 7)Nothing happens for many years while waiting for Immigrant Visa availability.
Adult, Single children of U.S. Citizens called 1st Preference have to wait approximately 7 to 8 years. Adult, Married children of U.S. Citizens (and their spouse & minor children) called 3rd Preference have to wait approximately 11 to 12 years or more.
8)Finally, after many years, when an Immigrant Visa becomes available, the NVC notifies the U.S. Citizen parent that Fee bills must be paid in order to prepare the case for Consular Processing 9)Once Visa and Affidavit of support fee bills are paid, consular forms and original documents must be submitted to the NVC along with the Affidavit of Support and financial documentation 10)Once all required documents are submitted, and the NVC file is complete, it sends the file to the U.S. Consulate to schedule the Immigrant Visa interview 11)The U.S. Consulate notifies the Immigrant of the Immigrant Visa appointment and provides instructions on having the required medical examination done. 12)The Immigrant (and his or her family) attend the Immigrant Visa appointment at the U.S. Consulate and if all goes well, the case is approved and the Immigrant receives a package in the mail which must be presented to the U.S. Immigration officials at the airport upon entering the U.S. . Prior to entry, Immigrant visa fees must be paid online and the receipt presented to prove payment. 13)The Immigrant and family receive their Green Cards at the address in the U.S. provided within about 30 days and then proceed to apply for Social Security numbers from the Social Security Administration.