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  Immigration News & Updates              eNewsletter

  POSTING DATE: JUNE 1,  2015
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This Week's Immigration News 
By Immigration Attorney Caroly Pedersen

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Immigration News & Updates eNewsletter ©  2011  - 2015 
For questions about U.S. Residency, Green Cards and Immigration Visas, Visit our Website at: www.ImmigrateToday.com or  call our office at: (954) 382-5378
Immigration
Questions & Answers
Question: My husband and I have some questions for you about his residency case. We filed for his green card in January and then recently went to an interview at the immigration office. The officer was really rude and even said to our faces that we were not a real marriage because we were living with his mom, so don’t have any bills in our name and we didn’t bring much documents (because we didn’t know we needed to) and because I did not change my husband’s last name. I told the officer that we were staying with his mom to save money for our own place and that I didn’t fill out the immigration forms using my new married name because my U.S. Passport has my old last name and I didn’t think that my new married name would be valid with immigration. But the officer didn’t seem to accept that explanation. The officer said we would get a decision in the mail, but its been a month and we haven’t received anything. We want to know what we should do next. Thanks for your help. 
Answer: It’s a shame that you had such a bad experience. I know it seems awful, but the USCIS officer is trained to view certain issues in marriage immigration cases as red flags. Living with a relative is one, and not having utility bills in the couple’s name and failing to provide the officer with other joint marital documents is another. However, USCIS regulations do not require a wife to take her husband's last name in marriage-based immigration cases. A married woman may keep her own name, adopt her husband's last name or choose to hyphenate her name along with his. The real, main issue in marriage-based immigration cases, is the critical necessity for a couple to clearly establish that the marriage is real - by providing extensive documentation from the time of the marriage until the interview, not just for the past month (for example Joint: bank statements, driver’s license or state ID at the same address, auto insurance, utilities, both names on the lease, tax return “married filing jointly”, lots and lots of photos, etc. the list goes on and on. Affidavits attesting to a genuine marriage are usually not given much weight by an officer and are generally used as a last resort when a couple does not have enough other “real” documentary evidence to show. USCIS officers have a lot of discretion to decide whether a marriage is real or not, based upon the totality of all the evidence presented by the couple, as well as the way a couple presents themselves and especially the way they interact together at the immigration interview. 

In my experience, couples in marriage cases simply do not take marriage immigration cases seriously enough or prepare well enough for or USCIS interview - until they run into problems and enter the “nightmare” of the USCIS presuming they are in a fake marriage. The result often leads to successive interviews at the USCIS office, being separated and interrogated, waiting for months and sometimes even years to eventually receive approval of a Green Card which in many cases could have easily been approved at the first interview, with the proper planning. So, with that said, I suggest making an INFOPASS appointment to do a status check on your case. It is likely that you will be told that your case is still being reviewed by the officer, which could mean six months more waiting for a new interview to be scheduled.

Another option is to contact your Congressional representative, complete the form and write a very clear explanation of your case and why you believe that Congressional assistance is warranted. This may help to move your case along so that the officer either issues you a letter requesting additional documentary evidence that your marriage is real, or schedules you for another marital interview so that you have a chance to bring marital documents which proves your relationship and to answer questions about your relationship in an interview either together, or separately. In the meantime, come see me and I’ll give you instructions on how you can begin preparing your case properly so that you will have everything you need and be fully prepared for your next interview.
Justice Department Decides To Delay Appeal To The U.S. Supreme Court To Lift The Stay On Obama’s Executive Actions On Immigration 
After the 5th Circuit Appeals Court ruled last week against the Justice Department’s request for the court to lift the temporary “stay” issued by the Texas federal court, the Justice Department has decided to delay filing an emergency Appeal with the U.S. Supreme Court and instead, pursue an appeal of the injunction with the 5th Circuit Appeals Court which is expected to proceed in July. 

A spokesperson for the Justice Department told reporters that the best way to win the case is "to focus on the ongoing appeal on the merits of the preliminary injunction itself. That appeal has been proceeding on an expedited basis, and the 5th Circuit is expected to hear argument the week of July 6.”. 

Presumably, an emergency Appeal to the U.S. Supreme Court remains an option, if the lower Appeals court ultimately rules against lifting the stay on Obama’s Executive Actions. Stay tuned…
Read More About the Justice Department Strategy:
The Hill
Helpful Immigration Tips You Can Use
State of Texas Denies U.S. Birth Certificates 
For Children Born To Undocumented Mothers
In its apparent continuing campaign against Immigrants, a new policy in the State of Texas is targeting U.S. born children of Immigrants. Under the new policy, Texas Department of State Health Services is refusing to issue birth certificates for children of undocumented immigrants, due to their immigration status. 

As a result, Texas Rio Grande Legal Aid has filed a lawsuit against the state agency seeking to force state officials to issue U.S. Birth certificates to the children in accordance with the U.S. Constitution. Under the Citizenship Clause, governed by the Fourteenth Amendment to the constitution, it states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." 
The issue of Birthright Citizenship has been a hot topic lately among many conservatives and has been the subject of Congressional hearings held to discuss the right and whether or not it should be abolished. For now, this and other Constitutional rights supersede state laws and experts are confident that the State of Texas will ultimately be required to issue U.S. Birth Certificates to all children born in its state.
Delays in USCIS Issuance of Work Permits Results in Lawsuit
A lawsuit has been filed against the USCIS for its failure to issue “interim” work permits to Immigrants, when USCIS delays in work permit processing exceed 90 days. Federal regulations require that work permits, request on form I-765 be issued within 90 days, or a temporary work permit called “interim” work authorization be issued.

These “interim” work permits allow Immigrants to work temporarily while waiting for the regular EAD to be issued. However, against the regulatory requirement, the USCIS has been refusing to issue the temporary work permits and as a result, has been sued by an Immigrants rights group seeking to force the USCIS to begin issuing the “interim permits in accordance with the law. 

Read more about the lawsuit:
NWIRP.ORG
An I-94 is a small slip of paper which was, until recently issued to all international visitors and visa holders entering the U.S.. Officially called the Arrival/Departure card, the I-94 contained the date of entry into the U.S. as well as the date by which the individual must depart from the U.S.. Often, individuals do not understand how important this little card is until it is too late.

In order to change immigration status inside the U.S. to any other immigrant or non-immigrant visa status, immigration regulations require that a copy of the I-94 be included with the application to establish eligibility. Foreign nationals must prove that they entered the U.S. legally and were inspected by an immigration officer in order to qualify to file for immigration status in the U.S.. Those who did not enter the U.S. legally are generally not entitled to obtain any new immigration status in the U.S., even when married to a U.S. citizen unless a Waiver is obtained.
Immigration How To: How Do I Replace  A Lost I-94 Card?
Applying For U.S. Citizenship – Understanding How Long 
A U.S. Resident Must Wait

There is often a lot of confusion about when an immigrant is eligible to apply for U.S Citizenship through Naturalization. The basic rule is that a U.S. Permanent Resident (Green Card holder) can apply for U.S. citizenship once he or she has been a Resident in the U.S. for at least 5 years.
90-Day Early Application Rule

Even though the rules require a U.S. Permanent Resident hold a Green Card for five years, Residents are actually allowed to submit a Naturalization application to U.S. Citizenship and Immigration Services (USCIS) within the 90-days before their five-year anniversary has arrived.

Here are some of the exceptions to the Five year rule: 

Exception to Five-Year Rule for Residents Who Are Married to a U.S. Citizen

For U.S. Permanent Resident who are married to a U.S. Citizen, the waiting time to apply for U.S. Citizenship is only 3 years, if, during that time, they have been a Resident married to, as well as living with, a U.S. citizen and the U.S. Citizen spouse has been a U.S. Citizen for at least 3 years.

This exception is called “Early Naturalization” and applies even for Residents who did not obtain their Green Card through marriage. So, for example, a U.S. Permanent Resident who obtained a Green Card through employment, then married a U.S. citizen soon after can apply for Naturalization once they have been a Resident and married to the U.S. Citizen for at least 3 years.

Exception to Five-Year Rule for Battered Spouses of a U.S. Citizen Granted VAWA Protection

Battered spouses and children are also eligible to apply for Early Naturalization, since the law would not want to force a Resident to have to stay in an abusive marriage for three years just to obtain the benefit of the Three-year exception when they applied for U.S. Citizenship..
Children of a Battered spouse must still reach age 18 before submitting their application for citizenship.

Partial Exception to Five-Year Rule for Refugees

Those granted Residency based upon having come to the United States as a refugee can count all the time they spent in the U.S. after being granted refugee status towards the five years necessary before they are eligible to apply for Naturalization.

Partial Exception to Five-Year Rule for People Granted Asylum (Asylees)

Those granted Residency based upon asylum in the United States can count the one year of time as an asylee towards the five years necessary before they are eligible to apply for Naturalization. 

Good to know...
An I-94 is a small slip of paper which was, until recently issued to all international visitors and visa holders entering the U.S.. Officially called the Arrival/Departure card, the I-94 contained the date of entry into the U.S. as well as the date by which the individual must depart from the U.S.. Often, individuals do not understand how important this little card is until it is too late.

In order to change immigration status inside the U.S. to any other immigrant or non-immigrant visa status, immigration regulations require that a copy of the I-94 be included with the application to establish eligibility. Foreign nationals must prove that they entered the U.S. legally and were inspected by an immigration officer in order to qualify to file for immigration status in the U.S.. Those who did not enter the U.S. legally are generally not entitled to obtain any new immigration status in the U.S., even when married to a U.S. citizen unless a Waiver is obtained.

If your I-94 card is lost, stolen or seriously damaged, you can apply to replace it by filing Form I-102, Application for Replacement/Initial Arrival-Departure Document. You also may file Form I-102 if you wish to receive a replacement I-94 card with corrected information on it — for example, if the immigration officer spelled your name wrong on the initial I-94 card. The nonrefundable filing fee for Form I-102 is $320. It generally takes about 60 days to receive the I-94 replacement card in the mail.

Under the new electronic I-94 system implemented in 2013, international visitors are no longer issued paper I-94 cards upon entry into the U.S.. Instead, individuals are provided with instructions on accessing their I-94 records online and printing the I-94 card out from the U.S. Customs and Border Protection (CBP) agency. You can visit the CBP site to print out your paper I-94 cards:
Get Your I-94 Printout -U.S. Customs and Border Protection (CBP)