US Immigration News & Commentary

It’s a common issue arising in the area of immigration law. A US citizen marries someone in the United States who is here unlawfully and because they entered without a visa they must return to their home country if they want to obtain a green card. In most instances that means that the foreign spouse would be subject to at least a 3 year bar to re-entry and possibly a 10 year bar based on the length of their unlawful presence in the United States. There is an application process through with the 3 or 10 year bar can be waived but it’s lengthy and requires the foreign national spouse to be outside of the United States for a prolonged time, sometimes many years.

That can mean serious hardship to the family, both financially and emotionally, and many simply choose to live in the shadows.

However, circumstances may be changing enough that some people may now choose to come forward.

As reported in today’s New York Times, the Obama administration is proposing a rule changes that would allow a provisional waiver to be granted while the foreign spouse is still inside the United States and also streamline the consular process so that the green card is granted in a matter of weeks rather than months.

“Citizenship and Immigration Services proposes to allow the immigrants to obtain a provisional waiver in the United States, before they leave for their countries to pick up their visas. Having the waiver in hand will allow them to depart knowing that they will almost certainly be able to return, officials said. The agency is also seeking to sharply streamline the process to cut down the wait times for visas to a few weeks at most.

“The goal is to substantially reduce the time that the U.S. citizen is separated from the spouse or child when that separation would yield an extreme hardship,” said Alejandro Mayorkas, the director of the immigration agency.“

This is a developing story and I’ll update it as new information comes in.

In the adjudications context: The USCIS has provided internal guidance that filings based on same-sex marriages are to be held in abeyance rather than rejected pending the outcome of the DOMA activity. What that means is that even if the I-485 isn’t adjudicated right away it’s possible to get employment authorization and proof of the right to be in the United States while the issues are worked out.

In the removal context: Manhattan Immigration Judge, Terry A. Bain, and the DHS trial attorney agreed to halt the removal of Monica Alcota, who was married to Cristina Ojeda, a US citizen, Connecticut in 2010, based on the argument that their same-sex marriage should be recognized for the purposes of immigration benefits.

Recently the Obama administration decided that it will no longer defend the Defense of Marriage Act in court. The Defense of Marriage Act states that federal policy is that marriage is between one man and one woman. Therefore, despite a general USCIS policy that states that marriages which are valid in the jurisdiction in which they took place, same-sex marriages are not recognized even if they’re legal where they took place.

All of that could change if the US Supreme Court rules that the DOMA is unconstitutional, which is likely as the government will no longer be defending the law. Should that happen, or should it be repealed, same-sex marriages should be recognized by the USCIS for the purposes of family based petitions.

The USCIS has received enough H1B applications to fill both the Master’s cap and the regular cap.

If you are on an H1B and have been counted against the cap in the past six years and have not left for a year then you can transfer employers. If you have not been counted against the cap because you work for a cap exempt employer or are currently seeking your first H1B then you will not be able to transfer/begin work until October 1, 2011. Applications can be submitted on April 1, 2011 at the earliest for the October 1 start date.

Permanent resident whose petitioning spouse passed away filed for citizenship. The USCIS challenged him about the validity of the original marriage and did not make a decision on the case. More than 120 days passed so we filed a 1447(b) action in federal court. The USCIS subsequently denied the naturalization application based on the fact that he was working for the government outside of the US for much of the time after his naturalization interview and because he filed 1 day too early. The AUSA filed a motion to dismiss. In response we argued that the USCIS did not have jurisdiction over the matter after the 1447(b) action was filed, the delay caused by the USCIS should not be used against the petitioner, and that he filed on time (3 months vs. 90 days). The judge agreed that the USCIS lost jurisdiction after the 1447(b) action was filed, frowned upon the reasons for the denial, and remanded the matter back to the USCIS for a prompt decision.

The USCIS dropped the inquiry into the marriage, approved the petition, and scheduled the client for an oath ceremony.

As you learn very early on, immigration law is federal, the states aren’t generally allowed to try to enforce it. Law after law enacted by states and local governments have been shot down when challenged in court.

The most recent example is SB1070 in AZ. The provisions dealing with immigration enforcement were prevented from going into effect by a federal court judge.

A review of many right-wing sites on the internet shows that these “strict constitutionalists” aren’t happy that the judge upheld the Constitution. Once again showing that what they really are is anti-immigrant. What a shock!

The order can be found here.

U.S. Citizenship and Immigration Services (USCIS) offers immigration services and resources specifically for members of the U.S. Armed Forces and their families who are stationed in the United States and abroad. USCIS established a military assistance team to ensure that the military community receives quick and secure access to accurate information. Below is a list of answers to frequently asked questions received by our military assistance team.

Adjustments

Q. What is the fee for the Application for Naturalization (Form N-400) filed by spouses of military members?
A. The filing fee for the Application for Naturalization (Form N-400) is $675 ($595 plus a biometrics fee of $80). Individuals who submit FD-258 Fingerprint Cards directly to USCIS with their applications are not required to pay the biometrics fee. Applicants filing from within the United States should submit a single check or money order of $675 made payable to Department of Homeland Security or U.S. Citizenship and Immigration Services.

Q. I am a military member stationed abroad with my dependents. Can my dependents have their naturalization interviews conducted overseas?
A. Yes. Certain spouses or children of service members residing abroad with that service member (as authorized by official orders) may be eligible to become naturalized citizens without having to travel to the United States for any part of the naturalization process. Please see “Fact Sheet: Requirements for Naturalization Abroad by Spouses of Members of the U.S. Armed Forces” and “Overseas Naturalization Eligibility for Certain Children of U.S. Armed Forces Members” on www.uscis.gov/military for more information.

If you have an appointment for a naturalization interview and you have transferred overseas, contact USCIS by calling the Military Help Line by telephone: 1-877-CIS-4MIL (1-877-247-4645) or email: militaryinfo.nsc@dhs.gov and request to have your case transferred to your nearest USCIS overseas office.

Submitting Biometrics

Q. I am an active duty military member and am required to submit biometrics at a USCIS Application Support Center (ASC). Do I need an appointment?
A. No. Active duty military members do not need an appointment and will be accepted on a walk-in basis at any ASC in the United States. You should bring your military ID with you to the ASC.

Q. Can I submit fingerprints before I file the Application for Naturalization (Form N-400)?
A. Yes. You may submit fingerprints even if you have not yet submitted an Application for Naturalization.

Q. Where can military members or dependents that are living abroad go to have the fingerprints taken?
A. Military members and dependents stationed abroad can submit 2 properly completed FD-258 Fingerprint Cards taken by the Military Police, Department of Homeland Security officials or U.S. Embassy or Consulate officials.

Q. If my military installation does not use FD-258, can I submit another type of fingerprint document instead?
A. FD-258 is the preferred document used to submit fingerprint, however USCIS may be able to accept a comparable document, such as the Department of Defense SF-87, in place of the FD-258. Please contact the USCIS Military Help Line at 1-877-CIS-4MIL (1-877-247-4645) for more information.

General Information

Q. What are the criteria to have an application or petition expedited for military personnel?
A. USCIS reviews all expedite requests on a case-by-case basis. Some examples of situations that may qualify for expedited processing include:

• Pending military deployment
• Extreme emergent situation
• Humanitarian situation

Please contact your local USCIS office or the USCIS Military Help Line at 1 877 CIS 4MIL (1-877-247-4645) for more information.

Q. I am an active duty military member stationed abroad. How do I check the status of my application?
A. You can check their status of any application by clicking on the “Check My Case Status” link on the right-hand side of this page. Note: when checking the status of an I-751, you must use the receipt number from the ASC appointment notice. You may also call the USCIS Military Help Line at 1-877-CIS-4MIL (1-877-247-4645).

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records to out “illegal immigrants” which included posting due dates of pregnant women.

“Two employees with the Department of Workforce Services have been put on leave after an investigation revealed that they apparently accessed records on hundreds of Utah residents to compile a list of 1,300 names of people purportedly in the country illegally.

A handful of other DWS workers also may have been part of the effort and are the subject of an ongoing probe.”

Deplorable xenophobia that could only be worse if violence occurred. Which isn’t too hard to imagine these days.

Via the USCIS

“WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) today announced an extension to the registration period for Temporary Protected Status (TPS) for eligible nationals of Haiti. Initially, the 180-day registration period for nationals of Haiti was from Jan. 21 through July 20, 2010. This registration period is now being extended through Jan. 18, 2011.

The Department of Homeland Security (DHS) previously published a Federal Register Notice on Jan. 21, 2010, announcing the TPS designation of Haiti for 18 months, from Jan. 21, 2010 through July 22, 2011. The designation applies only to Haitians who have continuously resided in the United States since Jan. 12, 2010; TPS will not be granted to Haitian nationals who first entered the United States after Jan. 12, 2010.

Haitian nationals eligible for TPS are strongly encouraged to register as soon as possible within the registration period that now ends on Jan. 18, 2011.

TPS applicants must submit both the Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization, to register. Applicants must pay the Form I-821 fee. Applicants age 14 and older must also submit the biometric service fee. “