POSTING DATE: October 15, 2018
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Questions & Answers
This Week's Immigration News
Question: My son is a U.S. Citizen by marriage to an American. When he got his citizenship last year, he sponsored me for a green card. The thing is that when my son was 22 and in college, me and his father divorced. I then remarried several years later and have a five year old son by my current husband. With that said, the current situation is that the immigration approved my case and now the National Visa Center sent me a letter with some invoices to be paid, but nowhere does it mention my husband or minor son’s names, so I assume there is a mistake and for some reason they are only preparing my immigration case. We called National Visa Center and the lady said that the case is only for me the mom, not his step dad or little brother. We are heartbroken and really confused. I am sure that my husband and son were listed on the application my son filed for me, so did something go wrong, can it still be fixed? Can you please take over my case and add my husband and young son, so we can all immigrate together, thanks.
Answer: That’s a very good question and important for you to understand. The Immigration category for Parents of U.S. Citizens, called “Immediate Relatives” does not allow for any dependent (Spouse and children) to immigrate with the Parent to the U.S.. Immediate Relatives can only immigrate as individuals, not as a family. This is true even though your spouse and children are also listed on the I-130 Family Petition your son filed. In order for the spouse of a Parent (step-parent to the U.S. Citizen child) to be able to immigrate, the marriage between the U.S. Citizen child’s biological Parent and the step-parent must have taken place before the U.S. Citizen child reached age 18. If it did, then the step-parent can immigrate as a separate Immediate Relative, just like a biological parent would. However, children of the Parent do not qualify to accompany the immigrating parent. The only way the child, who is the sibling of the U.S. Citizen sponsor can immigrate through the U.S. Citizen, is in the F4 Immigration category for siblings, which can take about 14 years.
In your case, since you married your current husband after your U.S. Citizen son turned age 17, he does not qualify as his stepparent and your U.S. Citizen son cannot sponsor him separately for residency. Your five year old son will not be eligible to immigrate along with you, since the immediate relative category you are in as the parent of a U.S. Citizen does not include any dependents. The best strategy is likely for you to immigrate to the U.S. and immediately file to sponsor your husband and minor son. Once you do, the waiting line for a visa in the F2A Immigration category for minor children of U.S. Residents is about 1 ½ -2 years. I can take over your National Visa Center processing to make sure that your case goes smoothly and you receive your immigrant visa at the consulate, then once you arrive in the U.S. and have your residency, we can file for your spouse and child.
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How Do I Qualify For Early Naturalization
Tips On Making A USCIS Infopass Appointment
Qualifying For Early Naturalization
Eligible U.S. Residents who are spouses of U.S. Citizens can apply for Naturalization early in only 2 years and 9 months to obtain their U.S. Citizenship.
Most U.S. Residents (Green Card holders) must wait for 4 years and 9 months before being eligible to apply for Naturalization. However, qualifying U.S. Residents who are married to U.S. Citizens are eligible to apply 2 years earlier, called “Early Naturalization”.
Family immigration requirements and waiting lines can often be very confusing, especially when an immigrant who has been sponsored by a family member has an approved I-130 petition, but is still stuck waiting many years in a visa line order to be able to actually immigrate to the U.S..
This is even further complicated by Visa Bulletin and USCIS announcements which don’t make much sense to the general public, but which have great significance to immigration processing.
USCIS Allows Certain Family Sponsored Immigrants To File Early Residency Applications For Limited Time – Proceed With Caution!
An Infopass appointment at your local USCIS can be a very convenient way to obtain additional information, find out the status of a pending immigration case or even get a temporary U.S. Residency stamp or sticker while waiting for your Green Card to be replaced or renewed. But often, actually getting an Infopass appointment scheduled can be quite a challenge at some busy local USCIS offices, causing extreme frustration and anxiety.
The repeated message “Currently, there are no available appointments. Please check again tomorrow.” Can make you want to scream, so here are a few tips:
Proposed Trump Policy Allows USCIS To Use
Credit Scores Against Immigrants
You can see from the charts that the Final Action dates chart is one or more years behind the Dates For Filing chart. So, those inside the U.S. in legal status in one of the immigration categories can file for residency early, according to that chart, for the month of October. For instance, Ana is a single 24 year old Jamaican daughter of a U.S. Citizen mother. She is legally in the U.S. on a student visa. Her mother filed the I-130 petition for her (F1 category) in February 2012. The regular Final Action chart shows that she will have to wait a year or more to file for residency, since the date for that category only allows those with I-130 applications filed on or before June 1, 2011. But since the USCIS is temporarily allowing Ana to use the Dates For Filing chart, she is eligible to file for residency now, since that chart shows that immigrants with I-130 applications filed on or before March 2012 are eligible to file. Similarly, Juan is Colombian and married to his resident (green card holder) wife. She filed the I-130 for Juan in August 2017 (F2A category) and since Juan was not allowed to wait inside the U.S. to immigrate, he returned to Colombia to wait for his visa to be available. According to the regular Final Dates chart, he will have to wait another year or so, since it shows there are only visas available for August of 2016. Juan recently came to the U.S. for a short visit with his wife. Since the October Dates For Filing chart shows that spouses and minor children of residents in the F2A category whose I-130 applications were filed before December 1, 2017 are eligible to file for residency, he can stay in the U.S., file for his residency and legally live and work in the U.S. while waiting for his green card.
These are the typical situations in which an immigrant is eligible to legally file for residency in the U.S. earlier than normal. However, things that sound to good to be true, often are, so immigrants should proceed with GREAT CAUTION before going forward! Now that the new deportation program is in full force for residency denials, this temporary policy is almost guaranteed to result in millions of residency denials and deportation notices for immigrants who desperately want to obtain residency and think that they qualify even though they do not. Immigrants who are in the U.S. with expired status (and are not eligible under 245(i) or another exception) who file residency petitions will likely be denied and put in deportation proceedings. Many immigrants who are preyed upon by Immigration scammers who take advantage of this temporary policy, will be promised work permits and a green card, only to later be denied and deported, leading to tragic consequences. For instance, Jennifer who is 36 and single, came to the U.S. 10 years ago and overstayed her visa, she has been here out of status ever since. Her mom married a U.S. Citizen in 2013 and got her green card in January 2014 and then filed an I-130 application for her daughter (F2B category) on March 1, 2014. Jennifer is not eligible to file for residency, even though the Dates For Filing chart shows that those with an I-130 filed before March 22, 2014, can do so. Since Jennifer is not in legal immigration status, if she files for residency, she will get her work permit, go through the entire adjustment of status process, and end up being denied at her residency interview, then placed in deportation.
So please, heed my warning, tell your family members and your friends to stay safe, DO NOT file a residency petition without first consulting with an immigration attorney (not consultant). This temporary policy can be a fantastic opportunity for those who qualify and a nightmare for those who file for residency, but don’t. I’m offering free consultations for any immigrants who believe they qualify under the announced early residency filing opportunity, so find out the facts first, BEFORE filing.
You can give me a call at: 954-382-5378. Tell my Legal Assistant Frances that you want to talk to Caroly
to find out if you qualify for the October early residency filing
Such is the case with a recent USCIS announcement, that beginning October 2018, certain family sponsored immigrants who are legally in the U.S. in legal immigration status (or eligible under 245(i)) can file adjustment of status applications (form I-485) earlier than the usual Visa Bulletin “Dates For Filing”. For background, under the Obama administration, the State Department created two monthly Visa Bulletins, one called “Final Action” and one called “Dates For Filing”. Generally, the “Final Action” dates are those which are based upon current immigrant visa availability and the “Dates For Filing” based upon projections of upcoming visa availability. Both are based upon very complicated government calculations which not many normal people could possibly understand, even most state department officials, but nevertheless, each month both charts are published. Since Trump took office, generally, immigrants have been required to use the “Final Action” dates visa bulletin which takes several years longer than the “Dates For Filing” chart. However, for some undetermined reason, for the month of October, the USCIS announced that it is allowing family based applicants to file residency applications using the dates on the “Dates For Filing” chart. This has significant benefits for many immigrants who would otherwise wait for several or more years to be eligible. Those who QUALIFY can file for adjustment of status, work and travel permission and remain in the U.S. legally waiting to receive their U.S. Residency! Yay! You can compare the two Visa Bulletin charts for October below:
This is the regular October 2018, the Final Action dates which immigrants must generally use for the following family categories:
FAMILY-SPONSORED PREFERENCES
(F1) Unmarried Sons and Daughters of U.S. Citizens
(F2A) Spouses and Children of Permanent Residents
(F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents
(F3) Married Sons and Daughters of U.S. Citizens
(F4) Brothers and Sisters of Adult U.S. Citizens
Under the new “Public Charge” draft proposal released several weeks ago by the Trump administration, the USCIS can review the financial histories and credit scores of immigrants as part of its determination as whether or not they are eligible for Residency.
The proposed measure called: “Inadmissibility on Public Charge Grounds”, widely believed to be part of the Trump administrations ongoing attempts to limit legal immigration, seeks to prohibit those who have received public benefits or are believed to likely require public assistance in the future, from obtaining U.S. Residency status in the U.S..
Additionally, as part of this determination, the rule would allow USCIS officers to use credit reports to review an applicant’s credit score, financial and bill payment history, debts, work and residence history, lawsuits and bankruptcies for both immigrant and non-immigrant cases to determine whether or not that person is “self-sufficient”. The USCIS would consider a “good” credit score to be “a positive factor in determining that an applicant is qualified and a bad credit score including those who are presumably “over-extended” with high credit-card balances, would have that count against them. Good credit report (FICO) scores as considered by lenders usually range 620 and 740, although we don’t have a final determination on what the minimum scores would need to be for immigration purposes. Those without credit histories or with low scores due to short periods of U.S. credit histories would likely not be penalized, whereas those with delinquent credit accounts and other derogatory financial reports could find that weighted heavily against them. Other positive, qualifying factors may include an individual’s proof of private health insurance to cover medical expenses and significant assets, including funds in banking accounts.
The draft proposal is in the public review and comment phase prior to enactment, so there are still many provisions and details which will be eliminated, modified or revised before the final version is released. But for now, it seems prudent for those seeking to obtain residency or a non-immigrant visa or extension to consider such factors and begin preparing for contingencies should the need arise. This may include transfers of funds from foreign accounts into your U.S. bank account and avoiding over extensions of credit debt which could negatively affect your credit score.
Read the DHS announcement
Read the draft rule
Federal Judge Temporarily Blocks Trump From Terminating TPS
For Haiti, El Salvador, Nicaragua and Sudan
In a sweeping decision last week, U.S. District Judge Edward Chen issued a ruling against the Trump administration, temporarily preventing it from terminating the “temporary protected status” (TPS) for Haiti, El Salvador, Nicaragua and Sudan.
For background, the Department of Homeland Security (DHS) recently issued an announcement terminating TPS For Haiti, El Salvador, Nicaragua and Sudan. Critics charged that the administration took the action cancelling protections for these countries due largely to Trump’s racist attitudes towards Hispanics and those from non-white countries.
In issuing the temporary “injunction”, Federal Judge Chen found that the DHS termination of TPS for these countries was tainted by racial bias and violated the Equal Protection Clause by basing its decision "on animus against non-white, non-European immigrants.", raising “serious questions as to whether a discriminatory purpose was a motivating factor” in the administration’s decision. In support of his decision, the judge listed several instances of Trump’s own words as evidence of racial bias against nationals of TPS countries
- Trump’s comments during his June 2015 speech announcing his candidacy when he characterized Mexicans as drug dealers, criminals and rapists.
- His December 2015 call for a “total and complete shutdown of Muslims entering the United States.”
- A report in the Washington Post in January 2018 that President Trump referred to El Salvador, Haiti and African nations as "shithole countries."
- A February 2018 speech at the Conservative Political Action Conference where Trump “used MS-13…to disparage immigrants, indicating that they are criminals and comparing them to snakes.”
The result of this ruling prevents the administration from deporting an estimated 240,000 immigrants from El Salvador, Haiti, Nicaragua and Sudan, previously directed by the DHS to depart the U.S. beginning in November. Termination of TPS status for Honduras and Nepal still stands, pending court challenges, seeking to overturn these terminations as well. The USCIS will be posting updated guidance for nationals of El Salvador, Haiti, Nicaragua and Sudan regarding any required re-registration and extensions of work authorization.
Read the Court Ruling
Question: I want to sponsor my husband. The situation is that he arrived in Miami as a visitor from Venezuela about 7 years ago applied for a student visa then got denied. He never left after that. He applied for asylum last year and is still waiting for his interview. We have been dating for a while and got married late last year. We knew we could not file for his green card while I was a permanent resident, so we were waiting until I will be sworn in next week as a citizen. At that point, we want to file his papers as soon as possible. We want you to represent us, but we have a few concerns. First, is there a waiting period after I get my citizenship before we can file his green card papers? Second, we are afraid that once we file, since he applied for asylum, he wont be eligible to get a green card until that case is complete or he might have to leave the U.S. and go back home to Venezuela and we will be separated.
Answer: Congratulations on your upcoming U.S. Citizenship. There is no waiting period to file your husband’s residency petition to obtain his Green Card. As soon as you are sworn in next week and get your Citizenship Certificate, we can submit his Residency application package the same day. Since he entered the U.S. legally as a tourist, (even though he remained past his authorized stay), under the law, he is eligible to adjust his status to a Green Card inside the U.S. and is not required to leave and go back to Venezuela. Once his residency case is filed, I will withdraw the pending asylum application. The Residency process is unfortunately becoming quite lengthy these days. It can take up to 6 months to receive his work and travel permits and another 1 ½ years or so for his Residency Interview and Green Card.
Question: I have a question about my daughter’s case. I got my green card in 2016 and filed for my unmarried daughter in Bahamas she just turned 21 last month and even though her I-130 case was approved, I thought we understood that once she is 21 she is not eligible anymore. We are heartsick about it. We got a notification and bills from the visa center but are not sure what we should do now. She does not have a visa to come to the U.S. and I fear that since she is now 21 the embassy will say that she doesn’t qualify anymore. My husband thinks it might help if I get my Citizenship, but I really don’t know what to do at this point. Can you please help sort this out for us?
Answer: The issue of children “aging out” from being a minor to an adult is very important! First, it’s vital to understand that the law treats children of Residents very different than children of U.S. Citizens when it comes to “ageing out”. “Aging Out” means that a child goes from a minor to an adult at age 21. When a U.S. Citizen files an I-130 for a minor child under age 21, the age of the child is “fixed” and that child remains a minor for immigration purposes, no matter how long it takes for the child to immigrate, or how old they actually are at the time of immigrating. In contrast, when a Resident files an I-130 for a minor child, the age of the child is not fixed and there is a risk of the child “aging out” by turning age 21 or older, thereby disqualifying the child as a minor and causing the child to change from the F2A Immigration category to the F2B, which puts the child in a much longer waiting line for a visa, taking many more years to immigrate.
However, under a law called the “Child Status Protection Act” (CSPA) , the time that the I-130 petition was pending with the USCIS before it was approved (processing time) can be subtracted from the child’s actual age at the time the Immigrant Visa becomes available, to technically reduce the child’s age below 21, thereby allowing them to continue to be a “minor”, at least for immigration purposes. So, if an I-130 petition is filed on Jan 1, 2011 and it is not approved until Jan 1, 2012, an entire year can be subtracted from a child’s age, thus allowing them to immigrate as a minor child.
The only time this is not possible, is when a Resident “unknowingly” Naturalizes after the child turns age 21. In these cases, the USCIS processing time cannot be subtracted from the child’s age, since once a Resident becomes a U.S. Citizen, the child’s age is “fixed” as of that time. So, if a child is age 21, no time can be deducted and the child become ineligible to immigrate as a minor. Many parents make great efforts to get their U.S. Citizenship once a child is nearing age 21, fearful that their minor child will “age out”, only to find out that instead, it was their Naturalization that caused the minor child to age out. Of course it should not be so complicated, but unfortunately misunderstandings of the “ins & outs” of Immigration law can sometimes lead to heartbreaking results. With all this said, the best thing that a parent can do is get professional advice before taking action.
In this case, Naturalization is the worst thing you could do and would not be possible to get quickly anyway, since it can now take up to a year to complete the process. Most likely, the I-130 was processing with the USCIS for some time before approval, so all that time can be subtracted from your daughter’s age and she is likely still eligible to immigrate as a minor. The National Visa Center (NVC) has likely already done the CSPA calculation and determined that she continues to be a minor for immigration purposes after subtracting the processing time for the I-130 from her age. We can take care of her case going forward to make sure she gets through smoothly, by paying the NVC bills, preparing the affidavit of support and providing the NVC all the documents necessary to get her visa interview scheduled as soon as possible.
Appointment are only available for two weeks in the future
Persistence breeds success – visit the site often during the day, since other customers may cancel their Infopass appointments, opening a slot for you
Login to the Infopass during off-peak hours, early in the morning and late at night
If repeated attempts to make an appointment at your local office fail, in many circumstances you can make an appointment at another field office within a reasonable distance
Once you are successful in making your Infopass appointment, make sure you print out a copy of your confirmation to present at your appointment. If you need to reschedule or cancel an appointment, you can do so using the “Manage an Appointment” option.
It’s important to know that your Infopass appointment will be with an immigration services officer (ISO), not an adjudications officer, meaning that the ISO won’t be the one working on your case, but can access some information about your case in the computer. If your case has been pending over the normal processing time, you can ask the ISO to request action or status update on your case, then make another Infopass appointment to see if any action was taken on the matter in 30 days.
If your case is not pending at the local USCIS and is instead being processed at the National Benefits Center or another Service Center, you can call National Customer Service Center at 1-800-375-5283 to request a status update or file an ERequest to get status on cases which have been pending over the normal processing time.
Finally, if your case has been dragging on for extended periods of time and your Infopass inquiries have not yielded positive results, you can always contact your local Congressional office to request assistance. You will be asked to complete and sign a form and an inquiry will be made on your behalf. You can normally expect a response from the Congressional office within about 30 days, in a letter telling what the USCIS status is. A word of caution: many cases which have been pending for long periods of time have been singled out for supervisory review, often because there are doubts about an Immigrant’s eligibility. For instance, a marriage immigration case which has been pending for several years following one or more interviews and no decision has been made. In such a case, if the couple has since split up, the case will likely to be denied and rushing the adjudication can result in a quick denial and Notice to Appear (NTA) in immigration court before a judge and eventual deportation. Similarly, making inquiries a residency case filed by an Immigrant with a criminal record or by an applicant who is not in legal status which is pending for review before a final decision can be made may yield a quick denial and NTA. In some circumstances, having a bad case take a long time for adjudication is a good thing, allowing the Immigrant to continue to live and work in America, while leaving open the possibility for some kind of immigration reform in the future. Rushing a bad case, often has bad consequences. Good to know!
To qualify under this expedited U.S. Citizenship process, a U.S. Resident must fall under what is commonly called the “3/3/3” rule. 1) The U.S. Resident must be married to their U.S. Citizen spouse for at least 3 years and 2) their U.S. Citizen spouse must have been a U.S. Citizen for at least 3 years and finally, the U.S. Resident must have held that status for at least 3 years (really 2 years and 9 months). So, as long as the U.S. Resident meets these requirements and is not only currently married to, but continues to reside in a real marriage with their U.S. Citizen spouse – they can apply for early naturalization.
