POSTING DATE: February 18, 2019
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Immigration News & Updates eNewsletter © 2011 - 2019
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Questions & Answers
This Week's Immigration News
Question:Hi my older brother sponsored me a few years ago. I know there is still a lot of time to wait, but I have a question about getting married. Me and my boyfriend have been dating for a while and we are going to have a baby in march so we want to get married. Will that be a problem for my immigration case? If it will take more time, how much longer do I need to wait?
Answer: No need to worry, under Immigration regulations, brothers and sisters of U.S. Citizens are in a category called F4, which includes the sibling, his or her spouse and all minor children (under age 21). As a result, any spouse or child the foreign sibling acquired after the U.S. Citizens sibling files the immigration petition, will be automatically included and allowed to immigrate to the U.S.. Therefore, you’re coming marriage will not have any bad consequences on the Immigrant petition filed on your behalf by your U.S. Citizen brother. Once the immigration process is in the final stages, approximately 12-14 years after the case is filed, your brother can notify the National Visa Center that you have married and have a children and provide all the relevant information including Birth and Marriage Certificates. I hope this is helpful.
Helpful Immigration Tips You Can Use...
Immigration News & Updates eNewsletter
eNewsletter
Understanding How To Prove the Parent-Child Relationship
For Children “Born Out of Wedlock”
Understanding what documentation the USCIS requires for each type of immigration application is vital to the success of the case, especially in difficult cases which involve proving the relationship between a father and his son or daughter who was “born out of wedlock”, meaning he was not married to the child’s mother.
As part of my Immigration law practice, individuals frequently come to seek my advice AFTER they have filed an immigration application run into problems, asking me to FIX it.
Tips On Preparing For Your Immigrant Visa Appointment
The Family immigration process often takes many years and finally, once an Immigrant Visa becomes available, the National Visa Center and U.S. Consulate begin final processing, ending in the immigrant visa consular interview appointment.
This can be very intimidating and stressful, but is the final necessary step to immigrating to the U.S. Here are a few tips to keep in mind in order to help you be prepared, and hopefully more relaxed, for your immigrant appointment:
ICE Accused In Fake Court Date Fiasco!
Getting A Green Card Through Employment –Overview of the Labor Certification Process
Immigrants who have violated immigration laws, or filed residency or other immigration applications which have been denied now commonly receive deportation notices, called Notices to Appear (NTA), which are meant to notify the immigrant that the government intends to remove them from the U.S.. In the past, these notices did not contain a scheduled court date, simply saying "to be determined", due to the large backlog of an estimated 1 Million or more immigration cases currently pending in the immigration courts. However, on June 21, 2018, the Supreme Court ruled that a notice to appear which does not have a date and time of an initial court hearing is defective (Pereira v. Sessions).
As a result, Immigration and Customs Enforcement (ICE) appears to have crafted a sneaky way to get around the court date issue, since clearly court dates are not readily available.
USCIS Announces Resumed Premium Processing
for H-1B Petitions Filed on or before Dec. 21, 2018
USCIS policy provides for an expedited processing service (called Premium Processing) for certain kinds of non-family type immigration petitions, for an additional fee of $1,410.
These generally include employment based applications including forms I-140 and I-129 (includes H-1B work visa applications), where in the USCIS will process the application within 15 calendar days.
Question: I got my green card through my parents in 2016, then went and married by girlfriend in 2017 and filed her papers. I didn’t get anything after that and everytime I call the immigration says there is no answer on the case yet and I have no idea how much longer this will take. She is always asking me when she can come up and I never know myself so I don’t know what to tell her. Can you please tell me how far they have reach now and how much longer it takes for the wife of a resident from Jamaica, thanks.
Answer: Since you are a U.S. Resident filing for a Spouse, you wife is in the F2A Immigration category. Right now, as of February 1, 2019, there are Immigrant visas for I-130 petitions filed by Residents for their spouses in December 2016. Since you filed for your wife in 2017, depending upon which month, your wife still has some months to wait. But as long as the F2A category keeps moving forward, you can count the months from December 2016 to the month you filed your wife’s petition in 2017 to figure out how much longer she has to wait, or just give me a call and let me know the date the I-130 application was filed and I can estimate the time for you.
Question: I got my green card way back when I was 5 years old, but never got around to my citizenship. I renewed it a few times with no problem. My green card expires next month and im a little worried because in 2013 I had a case for shoplifting worth $200 and the paper says it was a misdemeanor and I just paid a fine and did my community service that was all. I have been clean since then nothing else but someone said with all this trump stuff that I could get deported. im afraid to apply for my green card renewal and I was told if I get the case expunged it won’t cause a problem with my immigration case. My question is if I can get my card renewed without a problem and even if maybe I can go for my citizenship after that so I don’t have to worry about it anymore. Thanks
Answer: Good question. Under Immigration Regulations, generally, as long as the charge was for "petty theft", which is a misdemeanor in Florida and you have only one conviction, then it should likely not have a negative effect on Green card renewal or Citizenship (since the conviction was more than 5 years ago). There is a special “petty theft” exception in immigration law. It is important to know that when an individual is convicted of a crime, even if the case was later expunged, the criminal conviction must still be listed on all immigration applications, since having a criminal record expunged does not apply to immigration. The USCIS requires that applicants provide certified arrest reports and court dispositions when applying for immigration benefits. Having a case expunged makes it much more difficult to obtain. Many immigration cases are denied each year, simply because an individual had his or her immigration case expunged, thinking that it would not have to be reported to Immigration, only to find out later that the conviction must be revealed and documented. In your case as long as the conviction was for “petty theft” you are likely safe to both renew your Residency (green card) and file for your naturalization. However, any time a foreign national is convicted of a crime, due to potential immigration consequences, it is always a good idea to consult with an immigration attorney so they can review the police report and court disposition in order to be safe.
Most Immigrants know that they can obtain U.S. Residency (a green card ) through family sponsorship, but the process to get a green card through a U.S. employer often remains a mystery.
For instance, do you have to already be working for the company in order for them to sponsor you? Do you have to be in the U.S. to get sponsored? How long does the process take? How do you qualify? All very important questions.
For background, immigration regulations allow U.S. employers to sponsor foreign immigrants to immigrate to the U.S. in order to take up an available job position, which the employer has been unable to find a U.S. worker to fill.
Occupations which are often difficult to find qualified U.S. workers to fill cover the spectrum, from sheepherders (yes that is a real occupation) and tree cutters, to nurses, engineers and everything in between. Some occupations are more favorable for getting approved than others, depending upon the current job market and type of skills needed. For instance, low level positions which involve heavy labor or harsh conditions (often not requiring training or experience) such as for tree cutters working outside in the heat all day are very difficult to fill and are good prospects for labor certification approvals. Similarly, highly skilled jobs involving science, technology, engineering and math, requiring Bachelors and often Master’s degrees are likewise good candidates for approvals.
So how does the process work? First, it’s important to understand that the labor certification process to obtain residency through an employer does not in itself confer any legal immigration status or visa until the process is complete, so immigrants who are in the U.S. visiting cannot legally remain here during the process, unless they have legal status through another type of visa, i.e., H-1B work visa, F-1 student visa, etc. Sounds confusing, but it really does make sense, when you look at a typical labor certification case:
Yum Yum Chinese restaurant (Yum Yum) serves specialty Chinese cuisine. The restaurant is expanding and wants to open another location, but they have been unsuccessful in finding a qualified Chinese cook. The restaurant decides it must recruit and hire a cook from Hong Kong. Mr Wu who lives in Hong Kong has 15 years of experience as a specialty cook, sees an ad Yum Yum put in the Chinese newspaper looking for an experienced cook. Through an immigration attorney, Yum Yum begins the labor certification process, which first requires applying to the department of labor (DOL) to find out the minimum wage they are required to pay the cook, then proceeds with placing more ads to try to recruit a qualified U.S. worker cook and after no success, filing a labor certification application with the DOL requesting to permanently hire Mr. Wu for his green card.
After about four to five months, the DOL approves the labor certification application and in the next step, the immigration attorney files an employment Immigrant Visa application (called I-140) with the USCIS attaching the labor certification approval and other documentation, requesting approval of the visa. Thanks to expedited processing, the application is approved by the USCIS in as little as 15 days. Once approved, the USCIS sends the case to the National Visa Center to prepare the case form Mr. Wu’s appointment at the U.S. Consulate in Hong Kong. Approximately four months later Mr. Wu attends his consular appointment, receives his Immigrant Visa and comes to Miami a month later. Once he enters the U.S., immigration officers order his Green card and ask him what address he wants it sent to. Mr. Wu is now a U.S. Resident!
But what happens if Mr. Wu is already in the U.S. legally? Let’s say that Mr. Wu is here in the U.S. on an F-1 student visa attending courses at a cooking school. The process is exactly the same as above, except, once the I-140 Immigrant Visa application is approved by the USCIS in 15 days, Mr. Wu can immediately file his residency application to adjust status from a student visa to a Green card holder and he does not need to leave the U.S. and attend an interview at the consulate. Instead, after 6-8 months, he will attend his residency interview in Miami and receive his Green card in the mail within about 15 days.
This is the basic process in a nutshell. The only difference is in the timing for nationals of certain countries that have waiting lines for employment visas, so some immigrants have to wait longer than others. But for immigrants of most countries (except China, India and the Philippines), there are currently no waiting lines for employment green cards.
So how does an immigrant get sponsored by a U.S. employer? Well, that is the key, finding an employer in the U.S. willing to go through the above immigration process. It’s also important to note that for immigrants who are in the U.S. already working for an employer, but are out of legal status, immigration rules generally do not allow them to get a green card, except under certain limited exceptions.
You can find out more about the labor certification process by calling our office at: 954-382-5378 and by visiting our website at: www.Immigratetoday.com and clicking on the Immigration Newsletter link
According to reports, ICE has solved the problem by issuing thousands of NTA’s which have fake court dates, including those for hearings scheduled on Sundays at 12 midnight and nonexistent dates like November 31st, meant only as a way to avoid having the notices be legally invalid for failure to have a court date. These notices have been issued for some of the largest immigration court jurisdictions including Miami, Florida.
These dummy Notices have caused chaos and confusion for immigrants, who have no idea that the court date is bogus and instead may travel hundreds of miles and arrive at the immigration courthouse in the middle of the night for their nonexistent hearing, only to find the building closed or show up during the day and be told that the court date they have been given was never scheduled in the system. The problem is that most immigrants have no way of knowing whether or not the court date is real and have no choice but to show up, since failing to appear for a real hearing can result in a removal order being issued. However there are steps that can be taken to verify the hearing date, including calling the immigration court automated hotline at 1-800-898-7180, to verify your hearing date by entering your alien number (on the notice) in order to hear your hearing date information. In cases where the hotline does not have your information it may be that ICE simply failed to file the NTA with the Court and you can contact the local immigration court. It might also be a good idea to contact a qualified immigration attorney who can provide you with your immigration court information and even challenge the validity of your notice, based upon the fake court date.
However, in March 2018, just before the H-1B season began last year on April 1st, the USCIS announced that it would suspend premium processing for such applications until September 10, 2018, then again extended the suspension until February 19, 2019.
The good news is that the USCIS will resume premium processing on Tuesday, February 19, for all H-1B petitions filed on or before Dec. 21, 2018. To request premium processing service, petitioners need to file form I-907 with the appropriate service center.
Read the USCIS announcement
Read Your Appointment Letter carefully/Gather Civil Documents: make sure that you completely review the appointment letter, schedule and attend your required medical examination and gather the ORIGINAL Civil documents listed on your notice. In most cases, you are required to bring your passport which must be valid for at least six months beyond your intended entry date to the U.S. and provide ORIGINAL or certified copies of your birth and marriage certificate, divorce decrees, police certificate, military certificate (if applicable), death certificate for spouses, criminal records for arrest and convictions (if applicable), even if the charge was dismissed, expunged or sealed. It’s also good to bring updated financial documents from the financial sponsor, for instance their current tax return and W-2 and copies of their paystubs for the past several months. For marriage cases, you’ll need to provide additional evidence to prove the validity of the marriage, including as many photos of you and your spouse with family and be prepare to answer extensive questions about the history of your relationship, your spouse’s family, job, ex-spouses, children, etc.
Medical Examination: Make sure that you schedule your medical examination way in advance of your consular appointment date, in order to give enough time for the results to be ready for your interview. The appointment notice will give you complete instructions on which doctors are authorized by the Consulate to perform the required exam. If possible, take a copy of your vaccination records to your exam for the doctor to review to avoid being given duplicate vaccines and avoid drinking alcohol for several weeks prior to your exam if possible. Substances such as marijuana should be avoided for many months prior to the exam. Blood test results which are positive for drugs can result in a permanent denial of an immigrant visa.
Appointment Application & Confirmation: At the time of your appointment, make sure you print out and have your appointment letter and appointment registration confirmation with you when you go to the U.S. Consulate. You might be wise to review your DS260 immigrant visa application you submitted online, just to refresh your memory about the information you provided for past addresses, employment, and travel history and family relationships.
Security at the Consulate: Increasingly, U.S. Embassies maintain very strict security measures, which prohibit you from bringing certain items to with you to your appointment. Most Embassies now do not allow you to bring cell phones, tablets, computers and any other electronic devices, luggage, weapons and objects such as pen knives which can be used as a weapon.
If you have questions about the process or which documents you are required to provide for your specific case, make sure and consult a qualified immigration attorney before proceeding.
Immigration How To:
How Do I Know What Documents I Need To Sponsor My Daughter When I Was Not Married To Her Mother
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 chiId 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 petitioner as the child’s father.
-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 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.
