POSTING DATE: September 3, 2018
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Questions & Answers
This Week's Immigration News
Question: I came to the us in 2016 along with my daughter who was then 17 years old to visit family and one thing lead to another and we ended up staying. I have been dating my boyfriend who is a us citizen for about 2 years now and we will be getting married in November. My daughter did not qualify for DACA so I am wondering if once I get married, can my husband sponsor her and will she get a green card along with me? Thank you.
Answer: Unfortunately, your U.S. Citizen husband cannot sponsor your daughter, because under Immigration regulations, the stepparent relationship had to have been established by your marriage before your daughter turned age 18. According to your details, she is now 19 years old. Once you become a Resident in several years, you can petition for her, but under the current immigration laws, she will not be allowed to adjust status in the U.S. due to her overstay status. The only way she can get legal status is through a real marriage to a U.S. Citizen or through some future immigration reform.
What Happens When Your Immigration Case Is Denied? Understanding Appeals And Motions
Helpful Immigration Tips You Can Use...
Immigration News & Updates eNewsletter
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Immigration How To:
How Do I Know If Immigration Received My Case?
Tips On Contacting the National Visa Center
Once the USCIS approves a family petition (form I-130), it forwards the case to the National Visa Center (NVC), which handles processing of cases for relatives outside the U.S., by preparing the case for the U.S. Consulate in your family member’s home country. After the sponsor receives the I-130 Approval Notice from the USCIS, the NVC generally sends out a notification that it has received the case from the USCIS.
If the family member is in a “preference category”,(for all relatives who are not the Spouse, Parent or minor child of a U.S. Citizen), the letter will also state that there are no visas presently available for the foreign family member and that he or she should not make any plans to immigrate to the U.S. until a visa becomes available (which can be many years down the road).
USCIS E-Notification Service Notifies You When Your Case Is Received
The USCIS provides a convenient service to customers who have filed applications by sending email or text notifications once the center receives and accepts an application for processing.
To request an email or text notification, go online to the USCIS website and download and complete form G-1145. Complete a separate form for each form you are sending to the USCIS and attach to the front page of each application. Good luck!
With increasing frequency under the Trump administration, more and more immigration cases are being denied. And unfortunately, it’s expected that denials will significantly increase beginning September 11, 2018, once a new policy is implemented which encourages USCIS officers to deny immigration cases without first giving applicants and petitioners the opportunity to provide additional documentation to prove eligibility.
Couple this with the administration’s plans to shortly begin issuing deportation notices to most applicants whose cases are denied and it leaves the future of our entire immigration system in question.
Democrats Issue Warning To Trump Government Bureaucrats –
You Will Not Be Safe!
As a result, it’s vital to know what remedies exist once a case is denied and whether fling for review is appropriate. In many cases, USCIS denials can be appealed to the Administrative Appeals Office (AAO) or Board of Immigration Appeals (BIA) within 33 days, with the denial notice including an advisory to that effect. Some types of immigration petitions cannot be appealed and denials include an advisory to that effect as well. However in most such cases, even when an appeal is not legally available, a motion (MTR) can still be made within 33 days of the denial, to request that the denial issued by the USCIS be reviewed or reconsidered.
With that said, it’s really important to understand that even though an appeal or request for review or reconsideration is available in most cases, that does not mean that it is wise or even prudent to file one. When an immigration case has been denied because eligibility for the benefit does not exist, filing an appeal or motion will not result in an approval and is really just a waste of time and money. The USCIS filing fee for appeals and motions is $675 and in no way guarantees a final approval. Many applicants believe that since the denial notice mentions the appeal, that means that if they file one, the case will be approved, but in reality nothing can be further from the truth. In fact, the majority of all appeals and motions are denied.
For example, when a Resident files for naturalization but has not been physically inside the U.S. for at least 913 days in the past five years (or 548 for early naturalization based upon marriage to a U.S. Citizen), with very few exceptions, eligibility does not exist. Similarly, when an U.S. Citizen files to sponsor a non-qualifying family member like grandchild or a resident files to sponsor a married child, no eligibility exists. In these and other cases, filing an appeal or request for review is simply a waste of $675.
In contrast, there are some circumstances when it may be wise to file an appeal or review request, for instance in cases where the USCIS issued a request for evidence and you never received it, so were unable to provide the documents requested by the deadline or where legal eligibility exists and the initial petition was well documented, but still denied. For instance in a family based I-130 when the USCIS issues a request for evidence asking for a copy of a sponsor’s Certificate of Citizenship, but since the request was never received, the case was denied for failure to submit the document by the deadline. Similarly when an interview notice was issued by the USCIS but never received by the applicant and the case was denied for the applicant’s failure to attend the interview. Or when an I-130 petition was filed for a qualifying family member in an immigration category with long waiting lines which would necessitate waiting many more years, were the case be required to be re-filed, like that for a sibling or married child which would mean enduring another 12 to 14 years waiting if the denial were to stand. In such cases, an appeal or motion may very well be worthwhile.
In other cases where USCIS processing times are relatively short, it is often simply best to just re-file the case again, since appeals and motions can often take from six months to several years to be decided. Interestingly, when an appeal or motion is filed, ironically, it’s frequently the same USCIS officer who originally denied the case, that gets to review or reconsider the case and either affirm the original denial or reverse it and approve the case. In an appeal case, if the USCIS officer decides not to approve the case, the appeal will automatically be sent to the AAO or BIA for a final decision. For Motions, the officer’s decision not to reopen or reconsider is final.
An appeal is based upon the argument that the denial was based upon either an error in the application of the law or the officer’s interpretation of law to the facts of a case. A motion can either be requested to reopen a case, based upon new facts or documents not available to have been previously submitted with the original application or to reconsider the case, due to the USCIS having misapplied or misinterpreted the law and/or facts of the case or both.
The decision whether or not to file an appeal or motion is important and should be based upon well informed, intelligent reasoning about the likelihood for success, not simply the notion that since the denial says I can appeal, I will. And as more restrictive policies are implemented by the USCIS which will make it riskier for certain applicants to remain in the U.S. following a denial, the issue of the timing of appeals and motions becomes more critical. As a result, it often best to seek immigration advice from a qualified attorney regarding eligibility for any immigration application BEFORE filing and if denied, guidance on whether or not to proceed with an appeal or motion.
With mounting scandals plaguing the Trump Administration daily, and large portions of the country living in fear of Trump's increasingly erratic “tweets”, many experts strongly believe that the Democrats have a good chance re-taking the House of Representatives in the November mid-term elections. If this happens, Democrats in the House will have “the power of the subpoena”, meaning that they will have the authority to require government bureaucrats in the administration to come before the House and answer for their actions.
This includes government officials and employees who have been blindly implementing Trump’s unethical, immoral and arguably illegal immigration policies to carry out the administration’s abusive agenda.
Reports arise nearly daily of newly discovered abuses, including family separations, raids, detentions, illegal deportations and attacks on legal immigration which might otherwise go unnoticed, were it not for brave legal professionals and the media shedding a light on the disgrace. Only recently the Washington Post reported that as part of Trump’s campaign against immigrants, the administration has been escalating the rate of U.S. Citizenship and U.S. Passport denials for thousands born near the U.S./Mexico border. Apparently State Department bureaucrats have sharply increased the rate of challenges to the right of U.S. Citizenship for thousands of Hispanics who were born near the border, sighting fraudulent claims to U.S. Citizens by individuals delivered by “midwives” who purportedly falsified reports of birth in the U.S.. Border officials have even been seizing U.S. Passports of Citizens it believes were erroneously issued U.S. Citizenship. Some such Citizens are in their late 60’s, having been U.S. Citizens all their lives, only to have it suddenly stripped away from them at the U.S. border. Such actions taken by previous administrations were legally challenged and settled in a 2009 lawsuit brought by the American Civil Liberties Union (ACLU) and the matter resolved. But amid recent reports that such abuses have begun again and are escalating, lawsuits against the Trump administration are imminent to regain U.S. Citizenship for those who were arbitrarily denied or stripped of their legal rights to U.S. Nationality.
With this backdrop, House Democratic Rep. Ruben Gallego recently issued a warning to Trump administration officials carrying out his agenda essentially saying you “will not be safe” you will be held accountable for your actions during the Trump administration. If you are a US government official and you are deporting Americans be warned,”. “When the worm turns you will not be safe because you were just following orders. You do not have to take part in illegal acts ordered by this President's administration.” “Government officials who violate the law or the constitution will not be immune to legal consequences,” Gallego told Fox news “They will eventually be held accountable for their actions, even if the Trump administration is refusing to do so.”
USCIS Extends Suspension of Expedited Processing for H-1B Petitions
Until 2019 And Hikes Fees
The USCIS announced last week that it is extending the suspension of 15 day premium processing for new (cap-subject) H-1B petitions until Feb. 19, 2019 and expanding the suspension to include amended and change of employer H-1B cases. For background, Premium processing (form I-907) is an optional service available for very limited types of cases, which provides for 15 day processing of cases for an additional fee of $1,225. It is generally available only to business and employment cases filed on forms I-129 and I-140 and not applicable to family based and other types of immigration cases. Beginning on Oct. 1, 2018, fees for the service will increase from $1,225 to $1,410.
USCIS fees increase announcement
Question: I became a Naturalized U.S. Citizen in 2012. Once I got my citizenship, I filed for my 26 year old daughter in the Bahamas and the case was approved. The thing is that she got married and they had a baby son last year, my first grandchild. So now I am confused about that to do immigration wise. I suppose now that she is married I have to file a new case for her and her family, but I am waiting for you to let me know before I do anything. If I do need to file a new case, how long with they have to wait before they can get their green cards? Thanks.
Answer: That is a great question. No need to worry, since you were a U.S. Citizen when your daughter got married, her approved I-130 immigrant visa petition remains valid. When you filed the I-130 to sponsor your adult single daughter, her case was in the F1 category for unmarried sons & daughters of U.S. Citizens (waiting time approx 7-8 yrs). Now that she is married, her eligibility will simply move from the F1 to the F3 category for married sons & daughters of U.S. Citizens, which includes spouses & minor children under age 21 (waiting time approx 12+ yrs). In contrast, if you had been a U.S. Resident when your daughter got married, that would have invalidated the I-130 petition and you would have needed to file a new petition once you became a U.S. Citizen. The reason for this is that under immigration regulations, there is no immigration category for married sons or daughters of U.S. Residents.
Since she is married, it will take her much longer to immigrate, about seven or more years, but, at least her husband can immigrate along with her. The National Visa Center (NVC), the government agency which takes care of preparing cases for consular processing, is not aware that your daughter is now married. Therefore, in order to convert from the F1 to the F3 category, you can call the NVC at: (603) 334-0700, then send a copy of your daughter’s marriage certificate, birth certificate for her husband and copy of your grandson’s birth certificate to: National Visa Center, Attn: DR, 31 Rochester Ave. Suite 100, Portsmouth, NH 03801-2914 with a letter containing the NVC case number, your name/ birth date and the same for your daughter. You can always visit the State Department's Visa Bulletin website, to see the current Visa Priority Dates.
Question: My green card was about to expire earlier this year, but instead of filing to extend it, I filed for my citizenship. The problem is that my citizenship case is going on for too long now and since my green card expired, I don’t have anything to show I am a resident. My driver’s license expires by the end of this year and I don’t think they will renew it with my expired green card. Can I use my receipt for my citizenship application to get my drivers license extended? Is there something immigration can give me to show I am still a resident, thanks.
Answer: The rule of thumb is that residents should always file for naturalization prior to six months before their green card expires. However, the fact that your card has expired since you filed for naturalization does not mean you are not still a resident, the problem comes in when you need to travel, show residency status for work or drivers license renewal. Some USCIS field offices will provide you a onetime extension of your residency while waiting for your naturalization process. To obtain the extension, go online and make an infopass appointment and then take a copy of your naturalization receipt, along with your green card and passport to obtain the extension. The problem is that since you filed later than six months before your green card expired, the USCIS office can refuse to issue you the extension and most will only give you one extension, so once this extension is expired, if you have not yet naturalized, you’ll need to file an I-90 to renew your green card. You can then use the I-90 receipt to get unlimited extensions until you are naturalized
And during the long wait for an Immigrant Visa, family circumstances may change and addresses need to be updated in order for the NVC to have current contact information for the U.S. Citizen or U.S. Resident sponsor. Similarly, when a U.S. Resident becomes a U.S. Citizen, or a married child divorces the process for immigrating family members may speed up, but the NVC may not be aware of the change unless they receive a copy of the new Citizen’s Naturalization Certificate or the child’s divorce certificate.
To contact the NVC, call: (603) 334-0700. Be sure to give them the case number on the correspondence provided to you by the NVC or mail documentation or correspondence to them at: National Visa Center, Attn: DR, 31 Rochester Ave. Suite 100, Portsmouth, NH 03801-2914. Make sure that all correspondence includes a letter containing the NVC case number, your name/ birth date and the same for your relative.
