POSTING DATE: July 16, 2018
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Immigration
Questions & Answers
This Week's Immigration News
Question: My husband and I filed and got his papers about three years ago, then early last year we filed for his permanent 10 yr green card and got a letter that his status was extended for a year, but that year has passed. Also, we just got another letter telling us to send in more documents to prove we are really married. We go paperless on our bills, so we don’t have much to give them. We didn’t get married for immigration reasons so we never thought much about it. With this recent letter, the only thing we have is our 2017 tax return which we did separate because I owe back taxes. My question is how we can extend his status so we can take a trip back to Jamaica later this year and if you think we need to send any other documents besides our tax returns or will that will be enough? What do you think will happen next with his case?
Answer: When an immigrant is granted residency through marriage to a U.S. Citizen spouse, the Green Card is only issued temporarily for two years. Three months before it expires, the couple needs to file a request to remove the conditions on residency (form I-751). Unfortunately, couples often do not understand the extreme importance of not only filing the forms, but of providing extensive marital documents from the time the temporary Green Card was issued to prove that the couple is still living together in a real marriage. In cases where the couple fails to provide sufficient documentary evidence, the local USCIS office will interview the couple, often separately, to try to determine whether or not the marriage is real. That is why it’s extremely important that you are well prepared for this interview and bring all the necessary documentation to prove that you and your husband live together as a real married couple.
In your case, I suspect that you did not provide many marital documents spanning from the time your husband received his initial two year green card until you filed the I-751 petition. That is why the USCIS is requesting more documentation. In response, you should include every single marital document you can to show joint personal and financial affairs, such as joint back statements for every month, joint lease, joint car insurance, utilities from both spouses showing the same marital address, the more evidence, the better. In the end, if the officer does not believe that you have provided enough documentary evidence, in a few months or so, you will receive an appointment to attend a second interview at your local USCIS office, so an officer can question you in person about your marriage. This often delays obtaining permanent residency and can sometimes be an unpleasant experience, depending upon how much additional documentation you bring and how you answer the officer’s questions. But as long as you are a real couple, living together, you should be fine and eventually your husband will receive his ten year card. As for evidence of his legal residency status, he can visit the local USCIS by making an INFOPASS appointment and the officer will give him an 18 month residency stamp in his passport. This is just like a green card, he can work and travel using it. Once you are scheduled for the interview, If need be, I can represent you in preparing for and attending the interview with you and in making sure that you bring all the required documentation to demonstrate your “bonafide” marriage.
Children Who Attend Public School
While On U.S. Tourist Visas Are Violating Immigration Laws
Helpful Immigration Tips You Can Use...
Immigration News & Updates eNewsletter
eNewsletter
Thousands of tourists pour into the U.S. each year, bringing their children to attend public schools. The children receive a free education paid for by the American taxpayer and think nothing of it. The explanation is always, the school allowed me to register my child, they did not ask about our immigration status, so we thought it was ok.
Well, anything that sounds too good to be true, usually is and this of course this applies to educating children on tourist visas in free U.S. public schools – it’s a violation of federal law. Parents don’t like to hear it and often totally ignore advice to cease the practice, but the fact is, continuing the practice in the future, may very well result in visa cancellation not only for the child, but for the entire family as well.
For background, federal law requires that public schools enroll and educate children without regard to immigration status. This comes from a 1987 Supreme Court ruling that all children deserve an equal education. With regard to immigrants, it generally applies to immigrant children in the U.S. without legal status, allowing them the right to attend school without fear and is not meant to be a magnet to educate all the world’s children. Another federal law regarding immigration provides that non-immigrants in the U.S. on U.S. B1/B2 Tourist visas are prohibited from attending public school and it is a violation of the law to do so.
Immigration How To:
How Do I Keep My Green Card When I Live Abroad?
Keep Your I-94 Card Safe, You May Need It In The Future!
Since 2013, Foreign Nationals entering the U.S. no longer receive a paper card called an I-94 upon entry (which gave the date of entry and date upon which the individual must leave the U.S.), but are instead issued instructions on how to download and printout their I-94 report from the CBP website. This is great, because it provides a secure way to access the individual’s entry information for future use. However, up until 2013, those entering the U.S. were issued a small paper called an I-94 (Arrival/Departure) Card by Immigration inspections. This card is one of most important immigration-related documents issued to foreign nationals and it has the date of entry and the required date for exit clearly written on it.
Since Trump has taken office, it has become more and more difficult for U.S. Residents (Green Card holders) who live outside the U.S. to maintain their residency status. Previously, they simply travelled to the U.S. several times per year for short trips without any fear that they will not be allowed to re-enter the U.S. and could have their Green Card taken away at the U.S. border. But things have changed over the past year and Customs & Border Patrol (CBP) officers at airports and other borders have increasingly been warning residents that extended stays outside the U.S. will jeopardize their green cards, saying that if they leave and stay out again, they can lose their residency status.
***WARNING ***
New USCIS Policy Makes Filing Any Immigration Application
The Basis For Deportation
A recent policy memorandum issued by the Department of Homeland Security (DHS) has sent shock waves through the legal profession and set the immigration world on fire! The June 28, 2018 memo is a partial implementation of Trump’s 2017 Executive Order, Enhancing Public Safety in the Interior of the United States, which seeks to ramp up immigration enforcement measures by targeting more immigrants for deportation.
To this end, the new DHS policy significantly expands the types of cases under which an individual can be issued a Notice To Appear (NTA), and referred to immigration court for Removal proceedings and deportation from the U.S.. Generally, when an immigrant is deemed deportable, he or she is issued a Notice To Appear (NTA), which is a notice to the immigrant that he or she has been placed in Removal Proceedings and must appear in immigration court at a date and time to be announced.
But still parents think, what is the harm? I’ve been doing it for years and nothing bad has happened? To date, that may be true, but the risk comes when the family’s tourist visas are expiring and they need to renew. At that point, the child’s periods of stay in the U.S. need to be accounted for. A sharp Consular officer will likely see the child’s extended stays in the U.S. which correspond with the school year and can ask whether the child was attending public school in the U.S.. This is the time when the violation really hits home and the officer cancel cancels the child and parent(s) U.S. visas and denies renewal. Similarly, officers at the U.S. airport are on the lookout for children coming in to attend school and are authorized to cancel tourist visas in cases where they suspect the child is attempting to or attending public school illegally.
So what’s the solution? Immigration regulations authorize minor children who’s parents who are in the U.S. in non tourist visa status like F-1, H-1B, L, E visas, etc to attend public schools free of charge. For all others who want their children to attend school in the U.S., parents have the option to find a private school in the U.S. which accepts international students, and apply for an F-1 student visa for their child. No, the child cannot attend public school, but can attend a private school and pay the child’s tuition while they complete their education here. But, there is no visa which allows the parents to stay in the U.S. to care for children who are attending school on the F-1 student visa, so the children must either go to a boarding school or stay with relatives or friends during their studies. Now you know!
Learn about obtaining a student visas:
The new guidance significantly broadens the range of cases under which an individual can be deported from the U.S. and encourages officers to do so whenever possible. While most of the memo is focused on illegal immigration and the issuance of NTA’s to those with criminal, fraud or abuse of public benefits violations, the most explosive provision directs the issuance of NTA’s to applicants who have been denied any immigration benefit and who are ”unlawfully present” in the U.S. at the time of denial.
“V. Aliens Not Lawfully Present in the United States or Subject to Other Grounds of Removability, USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”
Unlawful presence is the presence in the U.S. after the expiration of the period of stay authorized by the DHS upon entry to the U.S., or having entered the U.S. illegally. Under this new directive, the USCIS aims to put every individual who files any kind of immigration application and a denial is issued by the USCIS after the applicant’s period of stay (I-94) has expired in deportation. This covers an extremely wide range of circumstances, meaning that even those who are in legal immigration status who file non-immigrant change or extension of status applications. This would include F-1 student visas, H-1B or L work visas, E-2 investor visas, etc, whose period of stay will have expired by the time a denial is issued in the case, causing them to fall into a period of “unlawful presence“ during processing of the application. Simply put, anyone who has an extension or change of status denied after that individual’s I-94 expires will be issued an NTA and referred for deportation from the U.S..
For example, Maria from Venezuela is here in the U.S. on a tourist visa and when she arrived in the U.S. the officer gave her six months to stay. After several months, she decides she wants to attend English language school and applies for an F-1 visa to change her status to a student, while she is still in legal status. However, due to every increasing USCIS processing times for student visa applications, taking up to a year in some circumstances, if Maria remains in the U.S. awaiting approval of application, she will go over her period of stay. If she does and the F-1 visa is later denied, she would be issued an NTA and be deportable from the U.S.. Her U.S. visa would automatically be cancelled and when she leaves the U.S., she would likely be unable to return for many years.
Similarly, Matthew is here in the U.S. from Jamaica, working on a valid H-1B work visa. His work visa expires in two months and his employer has filed a renewal on his behalf. However, since USCIS processing times can take six months or more, if he receives a denial on the H-1B extension, he too will be deportable from the U.S.. In another example, Marcia, from Trinidad is here on vacation visiting her aunt and received a six month stay when she entered the U.S.. She and her aunt have plans to visit New York, Washington and some other national sites of interest, so she decides to extend her stay in the U.S. a few more months. Once she has been here for five months, she files a request with the USCIS to extend her stay for an additional three months. But since it can take up to a year for the USCIS to process her request, she gets stuck here waiting for a decision. If she leaves the U.S. before she receives a decision, she will have overstayed her time here and her U.S. visa will automatically be cancelled. On the other hand, if she stays here waiting for a decision and she is denied, not only will her U.S. visa be cancelled, but she will become deportable as well.
The ramifications are enormous, and these are the nightmare outcomes which will likely result from the new USCIS policy. The message from the Trump administration is clear, if you are an immigrant, we don’t want you here and we will do everything possible thwart your efforts to maintain legal status- at every opportunity! As a result, visitors to the U.S. must be extremely cautious about filing any application to change or extend status and those here in the U.S. on valid work or investment visas must protect their status by filing for renewals as early as possible and use 15-day expedited processing whenever possible.
Read the new NTA memo
Polls Reveal That Many Republicans
Hold Negative Views Towards Immigrants
Polls often speak louder than words and reveal deep biases and repugnant beliefs that many American know they should hide. But results of polls can tell the real story, the unvarnished truth about how many bigots really feel when they believe they are speaking anonymously. As a result, a sad picture of a segment of our nation’s population emerges with the not so shocking realization that many Republican voters do not like immigrants, plain and simple.
Maybe it’s a lack of education, ignorance, poor upbringing, or maybe just mean spiritedness, whatever the cause, polls show that the majority of this political group have a strong distain, mistrust and even hatred for immigrants. Examples of Republicans’ negative attitudes towards immigrants are widespread and particularly apparent in the news media and in the Washington political arena, where the party consistently votes to restrict immigration.
National surveys show that while a majority of Americans say immigrants are good for America, a majority of Republicans oppose even legal immigration and strongly favor Trump’s family separation policy, 55 to 35 percent, according to a a Quinnipiac poll. Similarly, a recent poll in Texas found that some 70% of Republicans in the state favor deporting all undocumented immigrants from the U.S. immediately, regardless of their refugee status.
This vile attitude held by some Americans towards those who appear different or speak another language is clearly evident throughout social media and maybe none so much so as a video posted of a recent incident in Illinois, where an “American” saw a women wearing a shirt with the Puerto Rican flag on it and began harassing and berating her, telling her "You should not be wearing that in the United States of America," Are you a United States citizen?" The women patiently explains to the man that Puerto Rico is part of the United States, a U.S. territory since 1898. That however did not satisfy the apparently ignorant fellow who continues to call her obscenities until he is detained by police. Now I am not saying that this gentleman is a Republican, but if he is not, the party is surely waiting for him with open arms!
Ignorant American video
Mystatesman (Texas)
Question: I have a question about my sisters case. My family is from Colombia and I immigrated here about 15 years ago, became a us citizen in 2009 and filed for my sister and her family. I got an approved I-130 a few months ago and then a letter from a national center which said something about no visa available and for my sister not to make travel plans. I am really confused, the immigration website says the process time for a sibling case is july 2009 and I filed my sister’s case before that so I don’t see why she and her family cant get a visa yet. They keep asking me about it and I don’t understand it myself, so I cant explain it to them. Can you please help us to get this straightened out so my sister can immigrate here as soon as possible?
Answer: That is a great question. I understand your confusion. For background, the waiting line for siblings (the F-4 Immigration category) is about 14 years. It is confusing because the USCIS processing time for the actual I-130 family petition you filed is what the USCIS website is referring to, since it takes about 9 years for the USCIS to approve the case. Once the case is approved by the USCIS, it sends the file to the National Visa Center (NVC) to hold until a visa becomes available. This is where it gets tricky. The National Visa Center is in charge of holding Immigration cases until Immigrant Visas become available, then taking care of processing the case for the U.S. consulate in order for Immigrants to receive their interview so that they can be issued Immigrant Visas and proceed to finally immigrate to the U.S..
There are long waiting lines for most family members to immigrate to the U.S. depending upon their relationship to the U.S. Resident or Citizen sponsor and also depending upon their nationality. The general waiting line for siblings of U.S. Citizens is 14 years for all countries except China, India, Mexico and the Philippines which are longer. You can keep up to date on the monthly visa availability by visiting the Visa Bulletin website. So for siblings, generally about 14 years down the road, the NVC will send you a letter/email notifying you that consular processing is beginning. Nothing happens between now and then. If you move, please update the NVC. There is no way to expedite the process because it is not a matter of “processing”, it is a matter of too much demand for too few Immigrant visas for siblings. Once you receive the letter notifying you that consular processing has begun, we can take the case from there and prepare all the financial affidavits of support and other required documents necessary to finalize the case and get the family through the consular interview process so that they can finally join you here in the U.S..
Find out more about family Immigration waiting lines:
Visit the Visa Bulletin Website: Visa Bulletin Website
This document is typically the only evidence that a foreign national has to prove legal entry into the U.S. up until 2013. Without it, it is nearly impossible to apply for any type of immigration visa in the U.S. As a result, those who have lost the card and wish to change or adjust status, must apply for a replacement card which generally takes up to six months or more to receive a replacement I-94 card after application and costs $445.
Another important tip is for Foreign Nationals to remember to avoid allowing their period of authorized stay in the U.S. to expire, since once it has expired, under current immigration regulations, it is impossible to change or adjust status inside the U.S., (with the exception of being the spouse, minor child or parent of a U.S. citizen who is sponsoring them.) All too frequently immigrants are incorrectly advised that as long as they entered the U.S. legally, and a relative like a sister/brother or parent files an I-130 family petition, they can legally remain in the U.S. waiting for their case to be approved. This is simply not true. Immigration regulations presently prohibit a foreign national who has a family petition filed for them by a sibling (sister/brother), Permanent Resident spouse, Permanent Resident parent or U.S. Citizen parent (if the foreign national is over age 21) from obtaining a Green Card in the United States once they overstay their authorized period of stay. There used to be a law called 245(i), which allowed Immigrants who had overstayed in the U.S. to pay a penalty and still be able to obtain Green Cards, but that law ended on 4/30/2001. Unfortunately, ill-informed friends, relatives and unscrupulous immigration centers still advise foreign nationals that there is no problem in overstaying in the U.S., as long as an I-130 family petition has been filed for them. Please take my advice - maintain your legal status while inside the U.S. at all times and if necessary, request an extension of your tourist visa period of stay. But remember, that while you may be able to obtain one six month extension, a second request for an extension is very risky and may well be denied. To recap, among the only relatives who can still adjust status (obtain Green Cards) in the U.S. once they have overstayed are Spouses, Minor Children and Parents of U.S. Citizens and Cubans (CU6) and those who qualify under the old 245(i) rule. Under the current Trump Administration, the worst thing an Immigrant can do is to apply for U.S. Residency in the U.S. when they have overstayed. Not only will they be denied, but could very likely be deported as well. Stay safe!
If you have any questions about qualifying to obtain a Green Card in the U.S. after overstaying,
you can call my office for a Free Consultation at: (954) 382-5378.
CBP officers frequently request that such Residents admit that they don’t really live in the U.S. and that they voluntarily relinquish their cards and sign official I-407 forms to "voluntarily" abandon their status as a "lawful permanent resident of the U.S..
Such actions by CBP officers requesting Green Card holders to voluntarily relinquish their U.S. Residency status is common, in circumstances where a Resident has been absent from the U.S. for a long period of time, including a year or more, or when the traveler otherwise gives information or statements which clearly indicates that he or she does not reside in the U.S.
U.S. Residents who really do live in the U.S. and who have not been travelling abroad for extended periods of time (180 consecutive days or more) recently, and who do not have any serious criminal convictions, should not fear travelling abroad and do not risk losing their Green Cards when they try to re-enter the U.S.. But those who are living abroad need to rethink their plans and not rely on simply coming back to the U.S. a few times per year to keep their residency status.
Here’s a few quick tips:
Never stay outside of the U.S. for more than 179 continuous days at one time, since a reentry to the U.S. after 180 days not only “resets” the clock for accrual of physical presence for Naturalization purposes, but it is also a potential red flag to the CBP officer that you may not actually reside in the U.S. and can lead to more serious questioning, which can sometimes lead to a request for you to voluntarily relinquish your Green Card.
Understand your rights! You are not required to voluntarily relinquish your Green Card at the border and have the right to request a hearing before an immigration judge and you will be allowed to enter the U.S. to wait until that hearing. During the hearing, you have the burden of providing substantial documentary proof that you actually reside in the U.S. and that your absence from the U.S. was temporary. It’s always a good idea to have a qualified Immigration attorney to advise and assist you in understanding what kind of proof is required to present your best case to the Judge.
Apply for a re-entry permit which allows residents to stay outside the U.S. for up to two years legally, without the fear of losing their green cards! However, understand that after applying, residents must stay in the U.S. to wait for the biometrics appointment before leaving the U.S., which usually takes about 30 days. Once that is done, they can leave, and our firm can send them the re-entry permits once they have been issued, so they can use them to enter legally, without fear the next time.
Finally, U.S. Residents who do not now live in the U.S. should start making plans to begin residing here for more periods of time during each year and start establishing documentary proof of residence, like having a lease, utilities, car, insurance, etc in your name. Remember that Residents are required to file U.S. tax returns as Residents and must report worldwide income (but not assets). It’s best to prepare now, rather than face losing your U.S. Residency because you were not better prepared.
Once a Resident loses his or her Green Card, they cannot ever get the same one back, instead, they must start all over again. Sometimes that is possible if you are the parent or spouse of a U.S. Citizen, but in many cases, a Resident obtained their Green Card through a marriage that is now dissolved, or through parents that are now elderly or through siblings and may have to wait a decade or more once the process is started all over again.
