POSTING DATE: November 19, 2018
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Questions & Answers
This Week's Immigration News
Question: I have a real problem with my immigration case and me and my husband don’t know what we can do to fix it. We filed my immigration papers last year and when we went to my green card interview last month, the officer was nice and said everything was fine. He asked me about my divorce from my ex-husband and where he lives, but we didn’t think anything of it. The officer said the supervisor would have to review the case and that we would get something in the mail. We thought it was normal and I would get my green card. But we got this letter last week saying intent to deny my green card due to my divorce which was issued in the dominican republic! It says that its not valid because me and my ex did not live in Dominican republic and so my marriage with my husband is not valid. My ex did everything himself and I just signed the papers, he said everything was legal and he even got remarried in new York and his wife filed his immigration papers and he has his green card now so I don’t understand it doesn’t make sense to me. Can you please explain this? Is there anything you can do about it? Thanks.
Answer: As incredible as it seems, unfortunately, it is true and is a problem in marriage immigration cases. Strangely, the recognition of foreign divorces is a state not a federal matter and believe it or not, many states do not recognize certain foreign divorces. In immigration, the USCIS goes by your state law. In the state of Florida, Dominican Divorces are not recognized when neither party resides there, since Dominican law does not require the physical residence of either party. In Florida, at least one party must reside in the state to obtain a legal divorce, therefore, in your case, Florida law was applied to your Dominican Divorce. Some states like New York do recognized these types of Dominican Divorces, but since you live in Florida and it does not, the USCIS is intending to deny your residency case by applying Florida law. A good tip for an Immigrant who reside in the U.S. is to simply obtain a divorce in the U.S., rather than in the foreign country, unless the other spouse resides in the foreign country and files the divorce there. In Florida, an individual (including immigrants, even those without legal status) can obtain a divorce very quickly, in as little as 90 days or so, as long as he or she has resided physically in the State for at least 6 months. This is true, even if the foreign spouse resides in another country.
So in your case, since you live in Florida, you‘ll need to quickly get a divorce from your previous Dominican spouse here and then you can remarry your American husband. Your divorce in the Dominican Republic is not valid (here), thus, your current marriage is not valid, so you likely aren’t required to divorce your current spouse, since you are not validly married. I would not file anything with the USCIS until this is corrected or you will lose all your filing fees! See you next week.
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Reminder, Obamacare Enrollment Ends December 15th -
See If You Still Qualify!
Enrollment for this year’s Obamacare insurance program began on November 1st. It ends soon on December 15th, so don’t delay if you plan to enroll. Many immigrants falsely believe that a new Trump policy prevents them from getting Residency if they enroll in Obamacare, when in fact, the “Public Charge” draft policy specifically does not include the Affordable Care Act (also known as Obamacare) as a prohibited public benefit.
So don’t delay, apply now!
As many immigrants already know, USCIS processing times are increasing and the situation is likely to get worse. In fact, processing times for many common immigration applications have nearly doubled from those of 2016. Couple already growing case backlogs with the administration’s shift from processing to enforcement and increased scrutiny of applications and imagine that these times could triple for 2019.
The 2020 Presidential election is coming up fast, as a result, Residents would be wise to file for Naturalization as early as possible before the crunch comes next year as applicants scramble to apply in order to become citizens before the voter registration deadlines. With current average processing times of nearly 12 months in some jurisdictions, these could increase to 16 months in the coming year.
The Perils Of Applying To Change Or Extend Status In The U.S.
Under the new Trump Administration policy to issue deportation notices to certain foreign visitors whose immigration applications are denied by the USCIS, there is an ever increasing risk involved when filing any request to extend or change status inside the U.S..
In fact, under most circumstances going forward, any immigration application made in the U.S. puts an individual’s Tourist visa and future prospects of travel to the U.S. at risk!
2018 USCIS Processing Times Nearly Double That of 2016
Commonly, in the past, a foreign national visiting the U.S. on a Tourist/Business Visa, called a B1/B2, could extend his or her stay or change to a new visa like an F-1 Student visa status, by filing an application with the USCIS. Once filed, the applicant could remain in the U.S. legally, while waiting for the application to be processed, typically within several months. An example would be a case involving an international tourist wishing to extend his or her vacation for several months in the U.S. or an individual seeking to become an international student to study English or enroll in an academic program.
However, things have gotten much more complicated recently, due largely to new strict immigration policies, which make it very risky for anyone who wants to change or extend status in the U.S.. There are several reasons:
First, foreign nationals must generally wait for 60 days after the date they entered the U.S. before filing any immigration application with the USCIS, including those to extend or change status. Any application filed before 60 days can lead an Officer to presume that the applicant had a preconceived intent to stay in the U.S. and misrepresented their true intentions when they entered the U.S..
Second, the USCIS processing time has increased so drastically, to 4-9 months, that in most instances, an individual’s “period of authorized stay” in the U.S. will almost certainly expire while waiting for their application to be processed.
Third, as part of Trumps new tough immigration measures, it is even more difficult to obtain approvals and foreign applicants must now withstand more scrutiny about their intentions to return to their home country, and risk denial if they are not able to provide documentation which establishes that they own property and continue to maintain a residence in their home country, to which they intend to return once their visa in the U.S. expires.
Fourth, under another new policy, all applicants to change status to an F-1 student or other visa in the U.S. are first required to file applications to extend status in the U.S.. This is not only confusing, but can lead foreign nationals to believe that once they file the application to extend status, it will automatically be granted and there is no risk, when nothing could be farther from the truth.
Finally, under the new NTA policy, if an individual’s immigration status has expired by the time a denial is issued by the USCIS, the agency is now directed to issue a deportation notice to the Applicant, which is the first step to initiate his or her removal from the U.S..
This controversial change in policy was first announced in June 2018 and implemented on October 1, 2018. An NTA means that in these denied cases, a “Notice To Appear” for deportation is issued. Of course due to ever increasing immigration application processing times, many if not most individuals filing applications for Residency or change of status naturally have a lapse in status while their immigration applications are pending. An individual with an expired period of authorized stay is technically considered to be ”unlawfully present” in the U.S. at the time of denial. This includes those who file an application while they are still in legal status, but due to the time involved in processing the immigration case, have fallen out of legal status by the time a denial of the case is issued. The initial application of the NTA policy covered an extremely wide range of circumstances, including millions of foreign visitors who innocently file applications to change or extension of status in the U.S. every year.
Obviously, the every increasingly USCIS processing times for immigration applications, coupled with the requirement of waiting 60 days following entry into the U.S. before filing any non-immigrant application is a lethal combination for any foreign national who values their U.S. visa, since overstaying an individual’s “period of authorized stay” in the U.S. by even one day, results in immediate cancellation of that person’s B1/B2 visa. Another risk that many visitors do not understand is that even if they apply to extend status in the U.S. and are legally approved, once they leave and later try to return to the U.S. again too early, they risk heightened scrutiny about their intentions in the U.S.. In some cases, visitor’s even risk denial of entry or even B1/B2 visa cancellation if the officer believes they are seeking to reenter the U.S. with the intention to change or extend status again. Finally, if an individual applies to extend or change status in the U.S., then leaves the U.S. after his or her “period of authorized stay” in the U.S. has expired, before the USCIS has issued a decision on their case, again, it results in immediate cancellation of that person’s B1/B2 visa.
For example, Dwayne and his wife come to the U.S. on vacation to visit family and were issued authorization to stay in the U.S. for six months. However, during their stay, they decide that since Dwayne has some extra vacation days through his employer in Jamaica, the couple wants to extend their vacation and drive up to Washington DC with some friends for several more months. So the couple, who have been in the U.S. for five months, innocently files form I-539 to request to extend their stay in the U.S. for one more month. Unbeknownst to Dwayne and his wife, the application they just filed will have serious negative consequences that they could never have imagined. After filing the application, they receive a receipt from the USCIS and optimistically anticipate receiving a quick response so they can plan the trip. But weeks go by and no response is received. Their authorized stay expires and a week later they call the USCIS 800# and are told that their case is within the normal processing time (for example, four months) and that another inquiry can be make only after that period of time. They ask if they can stay in the U.S. while the case is processing and are told that they can, until they receive a decision. The couple decides to take the trip to Washington DC and then to return home to Jamaica, believing that since they filed the form I-539 to extend their stay they followed the law and it was not their fault that the USCIS processing time took so long.
They return home and decide to return to the U.S the next summer and take the kids to Disney World, however, once they arrive at Orlando International airport, the officer informs them that they overstayed in the U.S. the last time they visited and so their U.S. Tourist Visas are automatically cancelled. The officer cancels the visas and tells the family they cannot enter the U.S. and must return on the next plane back to Jamaica. Once they return home, Dwayne makes an appointment at the U.S. Consulate in Kingston and explains that he never intended to stay in the U.S. illegally and had filed form I-539 before the six months authorized period had expired, it wasn’t his fault that the USCIS took so long to process the request and they had to return home while it was still pending. The officer tells them it does not matter and that based upon the couple’s overstay, no new visa could be issued.
This is not an extreme example, it’s quite typical these days, given the baffling policies of our U.S. immigration system. So clearly, filing any application to extend or change status in the U.S. is risky and should be very carefully considered before any application is made. Given this, in most cases its best to avoid ever making any request to extend time inside the U.S. and to apply for student and other non-immigrant visas abroad through the U.S. Consulate.
Here’s a rundown of some average processing times for common immigration applications:
Application TypeAverage Processing Times Comparisons 2016 2018
Average Processing Times Comparisons 2016 2018I-130 Family Petition 6 9.7
I-129F Fiance Visa 2.9 7.3
I-360 Battered Spouse VAWA petition 4.8 13.2
Widower/Special ImmigrantI-485 Residency Petition 6.8 11.5
I-751 Removal of Conditions 9.1 16
For 10 Year Green Card
N-400 Naturalization 5.6 10.4
Check out USCIS Historical Processing Times
In accordance with the recent Federal Court decision blocking the Trump Administration from terminating Temporary Protected Status (TPS) for nationals of El Salvador, Sudan, Haiti, and Nicaragua, the USCIS has announced its plan to comply with the court order.
As background, the Trump Administration arbitrarily issued an order to terminate TPS for thousands of immigrants who have been in the U.S. under protected status for decades. Under the termination policy, the government planned to end TPS status for Sudan on November 2, 2018, Nicaragua on January 5, 2019, Haiti on July 22, 2019 and El Salvador on September 9, 2019. As a result, Immigrants filed a class-action lawsuit against the Department of Homeland Security, seeking to stop the planned TPS terminations.
Trump Administration Forced To Comply With Court Order To Continue TPS Status for Nationals of El Salvador, Sudan, Haiti, and Nicaragua
The Federal Judge who issued the decision temporarily preventing the administration from following through on the planned TPS cancellations based his decision on what he saw as evidence that the Trump administration may have violated the Constitution when it made decisions to end TPS. "There is also evidence that this may have been done in order to implement and justify a pre-ordained result desired by the White House. Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution," Chen wrote. "The issues are at least serious enough to preserve the status quo."
The lawsuit will continue to make its way through the courts, likely ending up in the Supreme Court. In the meantime, the USCIS issued a notice continuing the TPS protections for national of the countries as ordered and instructions for current TPS holders from these countries on Work authorization renewals and reregistration.
USCIS TPS announcement
Read the Federal Rule
Question: Hi. I got my temporary green card through my American husband last year and now I want to file for my daughter who is 20 and single in Jamaica. I have a few questions. First, is it me or my husband who files for my daughter. If its me, can I file now or do I need to wait until I get my permanent card? How long will it take to get her here?
Answer: Immigration regulations allow conditional residents to sponsor their children as soon as they receive their initial conditional residency. In your case, you can file for your daughter now in the F2A category, for minor children of U.S. Residents. At present, the backlog for such petitions is approximately 2 years, so unfortunately, she will turn age 21 before a visa is available and move to the F2B category, for single, adult children of U.S. Residents, where the waiting line is currently about 7 years. To understand the law on this issue a little better, immigration regulations allow U.S. Residents (conditional or permanent) to file for their children. However, unlike a U.S. Citizen sponsoring a minor child, once the I-130 family petition is filed by a Resident for their child, the child continues to age and once they reach age 21, they are not considered as a “minor” anymore, except for the very limited protection of the Child Status Protection Act (CSPA). However, when a U.S. Citizen files for a minor child (biological or stepchild), the child’s age is fixed on that date and the child remains technically a minor for immigration purposes, even though the child goes over age 21.
Another important regulation is that governing the issue of children and who is considered technically to be eligible as a person’s child for immigration purposes. Under the law, as long as the marriage between the child’s biological parent and stepparent took place before the child turns age 18, the stepchild/stepparent relationship is established and the parent is eligible to sponsor the child and vice versa. In your case, if you and your U.S. Citizen husband were married before your daughter reached age 18, your husband should be the one to sponsor her and that will “fix” her age at 20, so that no matter how long it takes for her to go through the immigration process (about 12-14 months), she will remain a minor under age 21 for immigration purposes. I hope this is helpful to you.
Here’s a quick run-down of the most common classes of Immigrants who currently qualify for the Affordable Care Act (Obamacare):
Lawful permanent and temporary Residents (LPR/Green Card holder)
Asylees
Refugees
Cuban/Haitian entrants
Those Paroled into the U.S.
Conditional entrants granted before 1980
Battered spouses, children, or parents (VAWA)
Victims of trafficking and his or her spouse, child, sibling, or parent
Those Granted Withholding of Deportation or Withholding of Removal
Individuals with non-immigrant status (including worker visas, student visas)
Those with Temporary Protected Status (TPS)
Those with Deferred Enforced Departure (DED)
Those with Deferred Action Status (EXCEPT: Deferred Action for Childhood Arrivals (DACA) isn’t an eligible immigration status for applying for health coverage)
Applicants for Special Immigrant Juvenile Status
Adjustments for Residency status with an approved visa petition
Victims of trafficking visa
Those with Withholding of Deportation/Removal
Click here to see the Healthcare.gov eligibility list
The common belief among many Residents (green card holders) is that old criminal convictions that occurred many years ago no longer matter and they will not affect his or her immigration status.
However, in reality, this is far from true and this misunderstanding often leads to Residents being taken into ICE (Immigration & Customs Enforcement) custody, detained and in some cases, deported, over seemingly insignificant past crimes.
Criminal Immigration attorneys warn Residents with criminal backgrounds to take certain precautions to avoid having the USCIS revoke their green card for convictions which occurred after the green card was obtained and ways to safeguard against being taken into custody as part of Trumps aggressive Immigration enforcement policies.
Common Ways Residents With Criminal Records Get Arrested Under Trumps New Policies
One of the most common ways that a Resident with a criminal background finds themselves in Customs and Border Patrol (CBP) custody is when they travel internationally and then re-enter the U.S. only to find that they face interrogation and possible detention and deportation due to a past criminal conviction, no matter how many years ago it occurred. Another common way that a Resident can be taken into Immigration custody is after an even minor traffic offense for which they were arrested. Finally, Residents with a criminal background who file for Naturalization can be referred to Immigration Court and not only be denied U.S. Citizenship, but lose their Green Card and be deported as well.
To avoid these nasty consequences, Residents with criminal conviction(s), no matter how “small”, should consult with an experienced criminal immigration lawyer before traveling internationally and before filing for Naturalization. Those who do not plan on international travel or filing for Naturalization should also schedule a consult to have the lawyer review their criminal record and provide advice about any possible future risks and/or steps that can be taken to clear up any potential negative Immigration effects of criminal convictions, including getting a criminal case reopened and dismissed. This does not include getting a criminal case “expunged” which does not make it disappear for Immigration purposes.
