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POSTING DATE: September 17, 2018
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Questions & Answers
This Week's Immigration News
Question: My husband and I got married last year, but decided to wait to file his papers until we got enough money saved. Then I got my tax refund and we had the fees saved, so we filed for his immigration papers in june. In late august we got a letter asking for his birth certificate because the one we sent in was the wrong version. We had to send away to his country to get the official document and once we got it, we sent it to the immigration office certified dated before the deadline. Last week, we just got a letter saying the case was denied because they got our mail late. But we went and got proof from the postal service that they sent it out before the deadline, so its not our fault if it did not get delivered in time. I also did an appointment at the immigration office and the lady said the documents from us had to get there before the deadline. I simply can’t believe that it’s true that we could lose nearly two thousand dollars if you count the cost of my husband’s medical exam we sent in and cannot get back. I am an American citizen and it just seems outrageous to me! Is there anything you can do?
Answer: I hate to tell you but yes, unfortunately it is true. All responses to USCIS must be received on or before the deadline. The USCIS no longer considers “postmarked” dates as meeting that requirement. Importantly, when cases are denied, all filing fees are lost and the case must be re-filed all over again, properly. For background, during processing of Immigration petitions, the USCIS frequently issues letters which request additional information or documentation in order for the case to be approved. Each request gives a deadline, usually 87 days to respond. If the response is not received by the deadline, the case will be denied, no matter how minor the document being requested seems. Therefore, always respond as early as possible, and for best results, no later than a week before the deadline. Be sure to make copies of everything you submit and send your response by U.S. Express Mail or Fed-ex for second day service with a tracking number, delivery confirmation and signature required, so you have proof someone there accepted your package. Then be sure to check the USCIS website a week or so after sending to make sure the USCIS online status shows that your response was received. If not, get delivery confirmation from the Postal Service and call the USCIS 800 number with your delivery confirmation information.
With that said, it is a long shot, but before you refile the case along with the new filing fee, you might consider visiting your congressperson’s office and bring a copy of the USCIS and postal receipts and proof of delivery, to see if they can make a request that the officer consider your document postmarked before the deadline, even though it was actually delivered to the USCIS after the deadline. Explain your hardship, how long it took to save the USCIS filing fees and make a special request that they ask the USCIS officer for “discretionary relief” to accept your document and continue processing your husband’s immigration case. It is rare, but in some cases, there might be a chance. If you receive a negative response, at least you tried. If you have any questions about refiling the case, you can always call me at: 954-382-5378.
Surprise Court Ruling In Texas Keeps DACA Alive – For Now!
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Immigration News & Updates eNewsletter
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How Do I Pay My Immigration Fees With My Credit Card ?
It’s a Violation of Immigration Regulations for Children on
Tourist Visas to Attend U.S. Public Schools
Thousands of tourists pour into the U.S. each year, bringing their children to attend public schools. The children receive a free education paid for by the American taxpayer and think nothing of it. The explanation is always, the school allowed me to register my child, they did not ask about our immigration status, so we thought it was ok.
Well, anything that sounds too good to be true, usually is and this of course applies to educating children on tourist visas in free U.S. public schools – it’s a violation of federal law. Parents don’t like to hear it and often totally ignore advice to cease the practice, but the fact is, continuing the practice in the future, may very well result in visa cancellation not only for the child, but for the entire family as well.
Tips On Paying USCIS Filing Fees By Debit or Credit Card
The USCIS recently provided the option of paying most immigration application fees by debit or credit card, including: Visa, MasterCard, American Express, Discover, even gift and prepaid cards.
To use the new service, applicants must download and complete form G-1450, then place the completed and signed form on top of the application. However, note that a credit card payment cannot be combined with a check or money order to make the required USCIS filing fee on the same one application.
In its continuing efforts to restrict both legal and illegal immigration, the Trump Administration has turned its attention towards identifying and tracking visa overstays. Overstays are individuals who legally entered the U.S. using a visa or are from a Visa Waiver country and who have remained in the U.S. beyond their authorized period of stay. This also includes those who are in the U.S. for a defined specific purpose, who remain in the U.S. after completing their program of work or study, including F, M and J students who fail to leave the U.S. after they graduate college or their programs conclude and those on work or investment visas who remained in the U.S. after their visas have expired.Tourists/Business visitors who enter the U.S. on B1/B2 visas are normally given six months to stay. Those from Visa Waiver countries receive ninety days.
Trump Administration Targeting Visa Overstays
Question: I have a question about citizenship for our family. My dad has been a resident for five years, he got it through his sister, but at the time me and my brother were over 21 so we got denied. Now that my dad is filing for citizenship, the form shows he can list his wife and kids, so he wants to include my mom who has her green card and us two kids who live in the Bahamas. My question is whether he has to pay just one $725 filing fee or does he have to pay a separate one for each of us family members included on his application? Both my brother and I are married now, is there an additional fee we have to pay for our spouses?
Answer: Unfortunately, your dad’s application for U.S. Citizenship does not entitle your mom or any other family members to naturalize along with him. The USCIS form simply requires each Naturalization applicant to list their spouse and children – although these family member do not actually receive any benefits from it. In your dad’s case, as long as he has been a U.S. Resident for at least 4 years and 9 months, and otherwise qualifies, he is eligible to apply for his own Naturalization. Your mom can file a separate application for herself as well. Once your mom or dad becomes a U.S. Citizen, they can sponsor you and your brother and your families to immigrate to the U.S., however, due to long waiting lines, you will need to wait many years, 12+ before an Immigrant Visa will be available.
Here are the current waiting times for adult children of U.S. Citizens:
1) F1 Immigration Category: Adult, Single children of U.S. Citizens (and their minor children under age 21) – approximate waiting time 7+ years.
2) F3 Immigration Category: Adult, Married children of U.S. Citizens (and their spouse & minor children under age 21) – approximate waiting time 12+ years or more.
In a surprise ruling, a conservative federal judge in Texas recently ordered that the Trump Administration continue to issue DACA renewals for now, until a final court ruling is made on the matter, which is likely end up in the Supreme Court. The decision was unexpected, given that federal judge Andrew Hanen of the Federal District Court in Houston was the same judge who blocked the DACA program from being implemented by the Obama administration in 2015.
For background, President Obama created both the DACA Deferred Action for Childhood Arrivals and DAPA Deferred Action for Parents of Americans and Lawful Permanent Residents, programs in 2014, set to be implemented in early 2015. However, on the eve of the program going into effect, several states joined together in a lawsuit by Texas to block the programs from being implemented.
Question: My wife is here on a student visa she got in 2016 then she quit school last year before graduating because she did not have money for the tuition. I was born here and we have been together since late last year. Now we plan to get married. My concern is about her kids. She has a 17 year old son and her daughter just turned 19. They are here with her. I want to sponsor them all together for their immigration status and citizenship if possible and avoid having them leave the country. I have never done anything with immigration before so I am in the dark about what we need to do first. I want to come see you to take care of it, but I would like to know where we stand first. Thanks.
Answer: Since your fiancée entered the U.S. legally, even though she later quit school and her period of stay has expired, since you are a U.S. Citizen, once you get married, you can sponsor her and her 17 year old son. They are both in a special Immigration category called “IMMEDIATE RELATIVES” (for Spouses, Minor Children/step children & Parents of U.S. Citizens). But, since her daughter is age 19, she is not eligible to be sponsored by a U.S. Citizen step-parent. Under Immigration regulations, in order to qualify for a step-child/step-parent relationship, the step-parent and the child’s biological parent must be married BEFORE a child reaches the age of 18. It’s a harsh regulations, but unfortunately we have to deal with the law as it is. I assume that her daughter has been in the U.S. for at least a year since turning age 18 that means that if she leaves the U.S., she would be barred from re-entering again for ten years. Once your wife becomes a Resident (Green Card holder), she can sponsor her daughter, however, under current immigration regulations, the child would not be allowed to adjust status in the U.S., so we would need to wait until the law changes for her to be able to obtain status here. For now, we can file for your wife and step-son once you are married. It currently takes up to six months after filing for them to receive their work and travel permits, then another year to two years for their residency. We can go over more specific details once we meet.
DAPA was eventually ruled to be illegal and never implemented, but the DACA program was allowed to start, amid litigation, now winding through the courts, with a series of unsuccessful federal court orders and appeals attempting to temporarily block DACA until a final court determination.
In a further effort to terminate the program, Trump issued an executive order in September 2017 to abruptly end DACA and cease accepting renewal applications after March 5, 2018. Following Trump’s action, multiple federal lawsuits were filed in various states seeking to prevent Trump from terminating the program. In early 2018, the Supreme Court refused Trump’s request to consider the case, and issue and order allowing him to terminate the program. This decision has effectively kept the DACA program going for renewals, until an appeal of a final court decision of the case comes around again in the next several years.
Many critics of Hanen expected him to issue a temporary order terminating DACA renewals and are quite surprised at his recent change of heart. Even while Hanen made it clear that he believed the DACA program would ultimately be found to be illegal in the courts, he supported his ruling in favor of temporarily continuing the program comparing ending the DACA program to an attempt to “unscramble” an egg, “Here, the egg has been scrambled,” Judge Hanen wrote. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”. So DACA Dreamers have a temporary reprieve until the next round of court hearing come up within the next year. Until then, DACA renewals will continue, however no new DACA applications will be accepted.
As part of Trump's zero tolerance policy, a series of measures have systematically been put into place, including making it harder for foreign nationals to obtain visas to come to the U.S., increased scrutiny at the border resulting in more U.S. admission refusals and family detentions, encouraging USCIS officials to issue ever increasing levels of denials of immigration applications for extensions of stay, changes of status, professional work and investment visas, without giving applicants the opportunity to provide additional evidence of eligibility and soon, the automatic issuance of deportation notices to those who receive denials.
The DHS report notes that it is continuing to develop biographical and biometric data on travelers in efforts to improve the tracking and deportation of violators who remain in the U.S. despite being expected to leave. Under its guidelines, the report states that the department is working with other government agencies “to share information on departures and overstays, especially as it pertains to the visa application and adjudication process.” with the goal to reinforce visa compliance and decrease overstay numbers and rates, adding “Identifying aliens who overstay their authorized periods of stay is important for national security, public safety, immigration enforcement, and processing applications for immigration benefits,”.In furtherance of the government’s aim to curtail overstays and punish those who do, the Department of Homeland Security (DHS) recently released a report which identifies the numbers and nationalities of foreign nationals who entered the U.S. legally in 2017 as non-immigrants, but overstayed their visas or authorized period of admission, meaning they remained in the country without legal status. Government data also includes those who are suspected to be in the country, as well as those believed to have left the U.S. following an overstay. U.S. Visas of visitors who overstay in the U.S. by even one day, for any reason, even an emergency, are automatically cancelled, requiring the individual to reapply for a visa at the U.S. Consulate abroad, which is highly likely to be denied once an individual has overstayed. Overstays also include those who apply for an extension or change of status in the U.S. and are ultimately denied, then subject to automatic visa cancellation.
Over 52 million foreign nationals come to the U.S. each year on non-immigrant visas, including those for tourism, business, work and study and according to the recent DHS report, over 600,000 of these visitors overstay each year. This number of overstays may not seem significant, however, estimates are that nearly half of the estimated 11 Million or so immigrants currently inside the U.S. without legal immigration status, are visa overstays.
As most Immigration attorneys will tell you, the number denials for many types of immigration applications has significantly increased under the Trump administration. And perhaps none so much as those for the H-1B professional works and the L-1 intracompany transferee visas.
According to a National Foundation for American Policy (NFAP) report, USCIS Requests for Evidence (RFE’s) and denials for these petitions have increased exponentially, up to 41% for the last six months of fiscal year 2017 alone. The numbers may even be much higher for 2018 once they are released. This is a direct result of Trump’s April 18, 2017 “Buy American and Hire American” executive order, which encouraged USCIS adjudicators to issue RFE’s and now denials, without first giving petitioners the opportunity to provide additional evidence of eligibility.
Restrictive USCIS Policies Causing H-1B And L-1 Visa Denials To Skyrocket!
The hi-tech industry has been hit particularly hard. IT giants like Facebook, Google, Microsoft and others likely account for more than 50% or more of all H-1B visas. The goal of the administration is to reduce overall numbers of all immigration and visas as much as possible, and as this trend continues, I expect we will see more and more statistical data for escalating denials in many other areas, including those for extensions and changes of status, E investment visas, Residency and others. As a result, it’s more important than ever to make sure that 1) eligibility exists for the immigration benefit sought and 2) every application filed is fully supported by documentation which proves eligibility, since the risk of filing any immigration application is so high and the consequences of denial so severe, potentially leading to deportation.
For background, federal law requires that public schools enroll and educate children without regard to immigration status. This comes from a 1987 Supreme Court ruling that all children deserve an equal education. With regard to immigrants, it generally applies to immigrant children in the U.S. without legal status, allowing them the right to attend school without fear and is not meant to be a magnet to educate all the world’s children. But still another federal law regarding immigration provides that non-immigrants in the U.S. on U.S. B1/B2 Tourist visas are prohibited from attending public school and it is a violation of the law to do so.
But still parents think, what is the harm? I’ve been doing it for years and nothing bad has happened? To date, that may be true, but the risk comes when the family’s tourist visas are expiring and they need to renew. At that point, the child’s periods of stay in the U.S. need to be accounted for. A sharp Consular officer will likely see the child’s extended stays in the U.S. which correspond with the school year and can ask whether the child was attending public school in the U.S.. This is the time when the violation really hits home and the officer cancel cancels the child and parent(s) U.S. visas and denies renewal. Similarly, officers at the U.S. airport are on the lookout for children coming in to attend school and are authorized to cancel tourist visas in cases where they suspect the child is attempting to or attending public school illegally.
So what’s the solution? Immigration regulations authorize minor children who’s parents who are in the U.S. in non tourist visa status like F-1, H-1B, L, E visas, etc to attend public schools free of charge. For all others who want their children to attend school in the U.S., parents have the option to find a private school in the U.S. which accepts international students, and apply for an F-1 student visa for their child. No, the child cannot attend public school, but can attend a private school and pay the child’s tuition while they complete their education here. But, there is no visa which allows the parents to stay in the U.S. to care for children who are attending school on the F-1 student visa, so the children must either go to a boarding school or stay with relatives or friends during their studies. Now you know!
Learn about obtaining a student visas:
For instance, if the Naturalization application filing fee of $725 is to be paid using a credit card, the payment cannot be broken up between a combination of a credit card and a check. The entire payment must be made by either credit card or check.
Also, USCIS filing and biometrics fees for each form can be paid together on one form. For instance form I-90, Application to Replace Permanent Resident Card, the filing fee is $ 455 and the biometrics fee is $85, so the entire USCIS filing fee of $540 if paid by credit card, can be paid using the same form G-1450. For Immigration cases which contain multiple applications with separate filing fees, a separate Form G-1450 should be used for each application requiring a separate USCIS filing fee.
Before sending your Immigration application with a credit card payment, be sure to make certain that you have enough credit left on your account to cover the payment, otherwise, the USCIS will reject your application.