Immigration Questions: (954) 382-5378
POSTING DATE: December 24, 2018
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Questions & Answers
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Question: I have a question about my son’s case. He is 25 and single and I filed for him back in 2015. The thing is that I was never married to his mother, so now I got this letter from immigration asking me to send in documents to prove our relationship. I sent them his birth certificate with my name on it as his father, but that doesn’t seem to be enough. I lived with my son in jamaica since he was born until I left to come and work in america at least 15 years ago and I supported him and sent money all along but don’t have any of those papers. Can I just write them a letter explaining that so they can go ahead and finish the case?
Answer: That is a great question. As part of my Immigration law practice, individuals frequently come to seek my advice AFTER they have filed an immigration application and run into problems, asking me to FIX it. Such is often the case with difficult immigration issues like those involving children who were “born out of wedlock”, meaning their father was not married to their mother.
In these instances, either a U.S. Citizen child is sponsoring a father who was not married to his or her mother, or a father is sponsoring a child and was never married to the child’s mother. In either case, proving a father-child relationship can be very challenging, particularly for countries like Jamaica, in which 60% of all children are born outside of marriage by some estimates. Further, in such countries there are generally no formal court ordered custody arrangements or child support documents, support for children is often paid in cash, or expenses such as tuition, clothing/supplies and there are few if any records of a father’s relationship with his children.
When an immigration petition is filed by either the U.S. Citizen child or father and the father was not married to the child’s mother, the USCIS requires extensive documentation to prove that a parental “relationship” existed and continues to exist to prove that a bona fide father-child relationship was established between the father and the child while the child was under 18 years of age. The law requires that the father prove he has demonstrated an active concern for the child’s support, instruction, and general welfare; that the father and child actually lived together or the father held the child out as his own; that the father provided for some or all of the child’s needs, or that in general the father’s behavior evidenced a genuine concern for the child.
Without documentary evidence, the USCIS will generally deny family petitions filed for children or a father, even when the USCIS has no doubt about the biological relationship. The main issue is always, did this biological father show “care and concern” for his child while the child was a minor under age 18.
This can be shown by documentation including:
-Cancelled checks or receipts of money given by the father to the child, Western Union/MoneyGram receipts, etc.
-Father’s income tax returns showing the child as a dependent.
-Father’s medical Insurance records listing the child’s medical coverage.
-Father’s insurance policy showing the child as a beneficiary.
-Child’s School records showing the father’s name as parent.
-Child’s medical/Vaccination records listing the father’s name.
-Pictures of the father and child together
-Child’s Baptism & Church records showing the father’s relationship with the child;
-If the father and child lived together, documents from each showing their address was the same
-Other similar and relevant documents, including: Letters, telephone bills, airline tickets, email printouts and other communications between the father and child.
-Notarized affidavit from the child’s father and mother regarding the father providing support, caring for the needs of the child and providing for the child’s general welfare other notarized Affidavits of relatives, friends, neighbors, school officials, or other associates stating facts showing that they personally know that there is a bona fide (real) father and child relationship.
It’s important to note, however, that Affidavits alone are generally not enough proof of the relationship without other documents such as proof of child support payments, etc. I like to sit down with client and go over a detailed history of their father-child relationship to assist in determining which type of documents my client may be able to obtain which will best suit their case. In many cases where a father is in the U.S. seeking to sponsor a child abroad and support has been paid through Western Union or other money transfers, I advise clients to order a ten year transaction history (if available) in order to show support payments to the child or his or her mother. That, coupled with several other types of documents, photos and well written Affidavits will often suffice to win a case. The most critical aspect of every immigration issue is fully understanding what the exact requirements before filing the case! That saves a lot of money, time and heartache.
In your case, if you simply write the officer a letter explaining that you do not have any documents, your son’s case will be denied. You are going to have to put some effort into this to have a chance for your son’s approval. Since you have been in the U.S. for the past fifteen years and have been providing support for him, you likely have sent his mom or another relative Money Gram or Western Union transfers. You can obtain a transaction history by contacting the company you used. It can take a month or so for them to provide it to you for a fee, so don’t delay, since you only have 87 days to provide the requested evidence for his case. Also, you’ll need to get a signed affidavit from your son’s mother stating your agreement for child support and confirming that all payments were made until your son turned age 18. You should further try to obtain your son’s Baptism Certificate to show your name and any school or medical records listing you as his father, find pictures of you two together and have other relatives provide signed affidavits attesting to your father/son relationship. Remember the more documentation the better and you only have this one chance to prove the case. If you only send in a few documents, the case will likely be denied. I hope this is helpful to you.
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The new Trump Administration rule called, “Inadmissibility on Public Charge Grounds” set to take effect in the next few months will drastically change the way the USCIS makes a determination about whether or not an immigrant is deemed likely to receive public assistance in the future and thus be required to post a bond. In many cases, this may be required when the U.S. Citizen or Resident sponsor fails to prove that they meet the minimum income requirements.
As a result, it’s more important than ever for sponsor’s to properly file the required Affidavit of Support and include documentation which clearly demonstrates eligibility.
Warning - DUI Conviction Is Most Common
Cause For Deportation!
According to the Washington Examiner, the majority of all deportations from the U.S. stem from “Driving Under the Influence” (DUI) charges and convictions. Of the 158,000 immigrants arrested by ICE in 2018, the majority, some 80,000 were for DUI. ICE Arrests for drug crimes came in second, with traffic offenses coming in third.
So be safe in this holiday season, don’t drink and drive, just use Uber!
Under Immigration regulations, a “minor child” is defined as a child under age 21 who is not single. Qualifying as a minor child is particularly important because of long immigration waiting lines. Minor children of U.S. Citizens are considered as “Immediate Relatives” which allows them to immigrate to the U.S. nearly immediately and minor children of U.S. Residents can immigrate to the U.S. in as little as 1 ½ to 2 years.
Contrast this with adult children of Citizens and Residents who turn age 21 and are forced to wait for 7-8 years to immigrate! Similarly, immigrant children who are dependents of parents who have been sponsored by a relative in the U.S. are only eligible to immigrate to the U.S. along with their family if they are under age 21 when the family immigrates.
Tips On Using The Child Status Protection Act
To Keep Children From “Aging Out”
For background, most U.S. Citizens and Residents who sponsor a foreign relative, including a spouse, are required to submit an Affidavit of Support (Form I-864) to prove that the sponsor makes enough income to support their immigrating relative, so that the relative will not seek government assistance, often called “public benefits” or “welfare”. In cases where the sponsor’s income does not meet the requirements, another U.S. Resident or Citizen can be used as a “Joint-Sponsor” whose income does qualify. Generally, meeting the minimum income requirements can sometimes be “tricky”, especially if an individual is self-employed, since in such cases, income is not earned by “wages” with an employer issuing a W-2 at the end of the year. Self employed Sponsors or Joint-Sponsors may think their income meets the financial requirements since their gross income is at or more than 125% of the Poverty Guidelines, when in fact it does not. Commonly it is because sponsors are not aware that it is the final adjusted gross income on the individual’s Tax Return that is the figure that the USCIS uses to determine eligibility, not the gross. As an example, a Nurses Aid may earn $30,000 a year. However, the gross wages reflected on the self-employment tax form called a Schedule C, are then reduced by expenses and the final adjusted gross income may only be $15,000 or less, which would not qualify under the USCIS guidelines.
When the USCIS issues a Request For Evidence to provide additional documentation to prove that the Sponsor (and/or Joint Sponsor’s) income meets the requirements, the Sponsor is generally only given one chance to respond to the USCIS request by providing a qualifying Joint Sponsor Affidavit of Support, Tax Return, Paystubs and Employer Letter which meet the guidelines. If the documents provided do not meet the requirements, the USCIS will not issue another Request, it will simply deny the entire case and all the filing fees will be lost. In order to proceed, a new Residency case must be filed all over again with new USCIS fees – very costly!!! Further, now that Trump’s new NTA policy has gone into effect, once an otherwise approvable case is denied due to failure to meet the income requirement, the USCIS will likely issue a deportation notice to the applicant as well.
So, make sure that a Sponsor or Joint Sponsor meets the income requirement on the adjusted gross income line of the Tax Return before sending the Affidavit of Support to the USCIS and include proof of Residency or Citizenship, recent Tax Return, Paystubs (3 months) and a current letter from the Joint-sponsor’s employer stating the job title, # of hours per wk and the hourly wage or salary.
You can get free information about Affidavit of Support requirements by calling our office at: 954-382-5378.
The age of the child is particularly important for children whose parents are sponsored by U.S. Parents and Siblings, where the waiting line for a visa can be 10 -12 years or more, since it is much more likely that the child will turn age 21 and age out.
The Child Status Protection Act ("CSPA") was enacted into law in 2002 to assist children who turn age 21 and would normally “age-out”, meaning become ineligible to immigrate as a minor (under age 21). The CSPA changed the process for determining whether a child has "aged out" (i.e. turned 21 years of age before being issued an immigrant visa or adjusting status) for the purpose of the issuance of visas and the adjustment of status of applicants in most immigrant categories. Under CSPA, the age of a child can be reduced by the time that the I-130 petition was “pending” with the USCIS, in many cases bringing the child’s age down under age 21 for immigration purposes.
There is a specific formula for determining whether a child's age is protected by the CSPA and there are required dates that must be plugged into the formula. When an immigrant visa first becomes available to the child and the child is age 21 or older, the amount of years which the I-130 petition was being processed by the USCIS can then be subtracted from the child’s current age, to determine whether they are technically still under age 21. If so, the child can still immigrate as a minor child.
For example, if an I-130 has been pending for 1095 days (3 years) and a child is age and a child is 22 years old about to turn age 23, we can deduct 1095 days from the child’s age to bring the child under age 21. The solution to “age out” issues is in filing immigration applications for relatives with minor children and your own minor children early, don’t wait until it’s too late. You can get free information about preserving your child’s “Minor” age status by calling our office at: 954-382-5378.
Question: My husband has had his green card for over 18 years now and never filed for citizenship because he cant read. He never wants to talk about it and as his wife I am the only one who knows the truth, his kids don’t even know. He is 60 and we got married a few years ago but he cant file for my papers because I came here legal but I let my status lapse. Since he is a resident we were told I cannot get my green card through him until he is a citizen. We both feel bad about it, I cant drive and I have to take the bus to work and that sometimes worries me because I hear about immigration raids on busses, so I want to get some help. I want to find out if there is someplace near fort Lauderdale where he can go to learn how to read and write. Even if it costs money I don’t care, we have to do it. Thank you for all your help.
Answer: Yes, absolutely, nearly every community offers free literacy services to help those who need to learn to read and write, as well as U.S. Citizenship classes to help residents study for the exam. You can find literacy classes for your husband in your area by going online and typing in “adult literacy” or click on the following link to find one here in Broward county:
Question: I got my citizenship last month and so filed the 130 form for my wife and her daughter who is 6 yrs old. They have been here for a few years out of status after coming her on vacation. my question is this, the letter I got from immigration only has my wife’s name on it, not my stepdaugters so we was concerned and called the immigration and was told that the application only covers my wife. I don’t understand because I listed both names on the application as wife and child. Can you please help us figure this out?
Answer: It’s important to understand that there is a big difference in the immigration process between a U.S. Citizen sponsoring a spouse and children, compared with a Resident. Spouses, minor children and parents of U.S. Citizens are in a special category called “Immediate Relatives”, which means that they can immigrate immediately and don’t need to wait in visa waiting lines. Each immediate relative is sponsored directly by the U.S. Citizen and no dependents can immigrate along with them. So when a U.S. Citizen sponsors a spouse and minor child, a separate form I-130 must be filed for each one. This is in contrast to the rules for spouses and minor children of Residents, which allows one I-130 form to be filed which can include the spouse and minor children together to immigrate as a family. The downside is that there is a visa waiting line of 1 ½ to 2 years and spouses and minor children who are inside the U.S. and not in legal immigration status are generally not eligible to obtain a Green Card.
So in your case, you had no choice but to wait until you obtained your U.S. Citizenship in order to your wife and step daughter so that they can adjust their status inside the U.S. and obtain a green card. However, a separate I-130 must be filed for your step daughter. And most importantly, in order to obtain a green card, both your wife and step daughter must each file a form I-485 (along with forms I-765 for work authorization and I-131 travel permit) in order to obtain work/travel permits and residency. The filing of only the I-130 for a relative inside the U.S. does not result in any immigration benefits until the residency application is filed. Let us know if you would like us to handle your family’s residency cases.
Foreign travelers to the U.S. often need to determine how many days they have spent inside the U.S. for Tax and other purposes. However, it can sometimes be difficult to determine exact dates by using one’s own passport stamps alone, since some entry stamps may be stamped over existing stamps, with exact dates almost impossible to read. Now there is a quick and easy way to get your past five-year travel history.
The U.S. Customs and Border Protection agency keeps automated records of entry and exit data for non-immigrants who visit the U.S.. You can now access and printout your own travel history and current I-94 Arrival/Departure card by visiting the U.S. Customs and Border Protection (CBP) website. You’ll need have the following information handy: your first and last name, your full date of birth, your passport number, and the country of issuance of your passport.
Visit the U.S. Customs and Border Protection (CBP) website to access your records:
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