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Archive for the ‘Immigration’ Category

I’m in the US and I married a US citizen, do I get a green card or what?

First, if it’s a bona fide marriage then congratulations! So, you get a green card no matter what right?! Though that seems to be a common belief it’s untrue.

An immigrant who marries a US citizen might be able to get a green card but there are a variety of conditions that must be met before an intending immigrant can be the beneficiary of an immigrant petition filed by a US citizen.

Generally speaking two things have to be true.

1. The marriage must be real and not entered in to for the purpose of evading immigration laws or solely for the purpose of gaining immigration benefits.

How do you prove that? Well basically the USCIS looks to evidence of a shared life together. They look for shared assets and liabilities and also that you held yourself out to the public as a real couple. The USCIS likes to see joint bank accounts, insurance, utilities, cars, houses, life insurance, credit cards, etc.. They also like to see evidence of travel and evidence that you spent time together with family or friends. Pictures are very useful to show travel and time spent with others. A couple of selfies at a location a few blocks from the immigration office aren’t going to be sufficient. Though there is no exact test of how much you need, more is better. Err on the side of bringing everything you have rather than too little. You have 30 minutes to convince a random USCIS officer who sees dozens of cases a day that you’re a real couple or they’ll devastate your life by trying to remove you after they deny your case.

2. The immigrant must also be “admissible”.

Even if the relationship is real, if you’re not admissible then you’ll get denied. A lot of things can render you inadmissible.

In no particular order here what I’ve found to be the most common problems.

A. Criminal offenses. Call a lawyer. Seriously. If you have criminal issues call a lawyer before you ever file anything.

B. Entered without inspection or overstaying a visa. A very common problem. Generally, if you entered without inspection you are unable to file for a green card even if you have a bona fide marriage to a US citizen. There is 1 exception. If you were here before December 2000 AND someone filed an I-130 for you (or an employer filed a labor certification for you) before April 30, 2001 AND it was approvable when filed (even if later denied) you can pay a $1000.00 penalty fee and still get a green card.

Everyone else is out of luck unless Congress gets their act together and passes immigration reform.

If you entered without inspection call a lawyer before you file anything.

If you entered on a visa (other than a J or crew visa) you will likely be able to get your green card as you were inspected by immigration when you arrived.

Again, call a lawyer.

C. US citizen doesn’t make a lot of money. Check the I-864P for the exact amount that the petitioner has to make. You can get a joint sponsor if the petitioner doesn’t make enough. It has to be a citizen or permanent resident and you’ll need their taxes and proof of status. You need to get this squared away before you file or you risk a denial.

D. Exit or removal and then reentry without inspection.

You could be barred from becoming a resident forever and risk prison. Call a lawyer.

There are a variety of other issues that could lead to denial. The inadmissibility grounds are found in section 212 of the Immigration and Nationality Act if you want to take a look. I always advise leaving it to the professionals though.

In other words, call a lawyer.

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USCIS video on the new N-400

February 12th, 2014 No comments

USCIS video about the new N-400 form. These editions are currently acceptable. 09/13/13. (USCIS will accept editions dated 03/22/12; 06/17/11; 01/18/11; 11/23/10; 04/05/10; 01/15/10 and 01/22/09 until Friday, May 2, 2014. Starting Monday, May 5, 2014, USCIS will only accept the 09/13/13 edition.)

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Changes to TN visa process for Mexican citizens

February 10th, 2014 No comments

The State Department is changing the TN rules for citizens of Mexico bringing them in line with the process that Canadians can utilize. The TN process for citizens of Mexico used to require an approved petition from the USCIS which is costly and time consuming process and also different than what Canadians had to do to acquire TN status. Canadians merely have to present their TN petition at a port-of-entry and it can be approved right there. The State Department is finally eliminating the disparity and allowing citizens of Mexico to do the same.

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Can Justin Bieber be deported?

January 31st, 2014 No comments

Had to write something about this because it touches on so much of what we immigration attorneys deal with on a daily basis – just not for famous people.

Justin Bieber has been having quite a lot of run-ins with the law right now. There is the vandalism issue in LA (but it’s not even clear that he will be charged). There is the drag racing, marijuana, Xanax issue fom Florida but it isn’t clear that will lead to any conviction either. He did test positive for marijuana and Xanax and appears to admit using both. And most recently he was charged with assault in Canada.

As far as I can tell Bieber is on a non-immigrant O-1 visa based on his extraordinary ability as a musician. It’s possible he has permanent residency through an EB1 petition based on the same. Not sure which one and it does make a difference when it comes to his ability to re-enter the US if the government gives him a hard time about these criminal issues.

Does any of this impact his ability to stay in or return to the United States?

As an initial matter it’s important to note that he has not been convicted on any of the charges nor did he plead guilty to any of them. Generally speaking it isn’t the charge that is the problem it’s the conviction. A guilty plea is a conviction for the purposes of immigration law. Usually a plea agreement results in a lesser charge so even the charges he has now may be modified downward becoming less serious offenses. He did, however, admit to drug use, which could be a problem independent of any conviction as we’ll see below.

Taking them one at a time…

Vandalism:

Bieber has been accused of causing 20K in damage to his neighbors property by throwing eggs at it. As noted above the police don’t have a smoking gun but let’s assume he was charged with the offense. The options are either felony vandalism under or misdemeanor vandalism under P.C.§594.

Assuming it’s a felony it would not be what’s considered an aggravated felony under 8 USC 237 as it’s not a crime of violence. It would not be an offense under which he could be deported if he were in the US.

It becomes more complicated if he were convicted of a felony and then went outside the US. Because of the alleged amount of damage it might be considered a “crime involving moral turpitude” (CIMT) and if he got a jail sentence (probation doesn’t matter) of more than 6 months (even if the jail time was suspended) he would be “inadmissible” and be barred from coming back to the U.S. until he applied for, and received, a “waiver” of the bar to his admission.

If it’s a misdemeanor and he gets less than 6 months it would be a “petty offense” even if considered a CIMT and he would be admissible (and also would not get deported [by the way, removed is the proper term now])

    Drag racing, drugs, resisting arrest..

Not concerned with the drag racing. Wouldn’t even be a CIMT as far as I can tell.

Not concerned about the resisting arrest without violence. Wouldn’t even be a CIMT as far as I can tell.

Concerned about the drugs and the admission of drug use. Under section 212 of the Immigration and Nationality Act admitting the essential elements of a controlled substance violation is sufficient, even absent a conviction, to be deemed inadmissible to the United States [See Pazcoguin v. Radcliffe, 292 F.3d 1209]. Marijuana use is a controlled substance violation. So if he’s convicted of drug use or admits to it’s use I could see that turning into a big deal. Maybe if he admitted smoking in Colorado it’d be no big deal but it’s still illegal in Florida as far as I’m aware and that could be a big problem for him in the future if the USCIS/ICE/CBP decides to go after him for something.

Don’t forget Amy Winehouse was banned from the US because of her drug problems…

    Assault…

He has returned to Canada to face charges of assaulting a limo driver. A lot is unknown here but it looks like it would be a common assault a worst which has a maximum 6 month penalty and 5000 dollar fine.

Assault can be considered a “crime involving moral turpitude” but there is plenty of case law that suggests a simple assault does not meet that standard. Additionally, since the maximum penalty is 6 months incarceration it would be considered a petty offense and not render Bieber inadmissible.

However, if he was convicted of assault and it was viewed as a CIMT AND he was convicted of vandalism AND it was considered a CIMT not only would be be removable if in the US he’d be inadmissible if he was outside of the US and again he would need a waiver.

If he’s on a non-immigrant visa a waiver is under 8 USC 212(d)(3) and is pretty straightforward. If he’s already a permanent resident he has to show extreme hardship to a US citizen spouse or child and that he cannot do. So this could all be worse for him if he already has a green card or seeks one in the future.

At this point he hasn’t been convicted of anything and my biggest concern for him would be the admission of drug use. That’s a big no-no under immigration law.

How this plays out remains to be seen but if he gets convicted I’ll update accordingly.

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USCIS Implementing Customer Verification at Field Offices

September 6th, 2013 No comments

The USCIS is going to fingerprint and photograph people coming in to the field offices:

Beginning September 9, 2013, USCIS will employ a new verification tool called Customer
Identity Verification (CIV) in its field offices. Customers will now submit biometric data,
specifically fingerprints and photographs, when appearing at USCIS offices for interviews or
to receive evidence of an immigration benefit.

How It Works:

After a customer arrives at a field office, clears security, and is called to the counter, we will
electronically scan two fingerprints and take a picture to verify their identity. The process
takes just a few minutes and applies only to customers who have an interview or receive
evidence of an immigration benefit. People who come to our office for InfoPass appointments
or to accompany a customer will not undergo this process. After we verify the customer’s
identity, they can proceed to their interview or receive their document.
Currently, USCIS requires applicants and petitioners requesting immigration or naturalization
benefits to visit one of our Application Support Centers (ASCs) to provide biometric data.
USCIS uses this data to help determine eligibility for requested benefits. This requirement,
along with providing a government-issued document for examination, will not change.

How It Helps:

CIV connects instantly to the United States Visitor and Immigrant Status Indicator
Technology’s (US-VISIT’s) Secondary Inspections Tool (SIT). SIT is a Web-based
application that processes, displays and retrieves biometric and biographic data. US-VISIT
also links databases associated with border inspections and security.

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Unpublished BIA decision upholds denial of adjustment for false claim to US citizenship

September 3rd, 2013 No comments

An immigrant who checked the US citizen/US national box on an I-9 and conceded at their adjustment interview that they claimed to be a citizen and was therefore denied adjustment and ordered removed lost their appeal. After the interview they claimed that the human resources employee told them to check the box and that they believed they must be a “US national”. However, this was inconsistent with the sworn statement signed off on at the adjustment interview.

If there is any chance at all that you or someone you know checked US citizen on an I-9 then contact an immigration attorney before you ever file for immigration benefits of any kind.

The decision is below:

Vicente Somera Espino III, A087 081 219 (BIA Aug. 5, 2013) by Immigrant & Refugee Appellate Center

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Immigrant ordered removed at second master calendar hearing wins appeal…

September 1st, 2013 No comments

A victory for due process and right to counsel: An immigrant who was still seeking counsel but was ordered removed at his 2nd master calendar hearing won his appeal and the case is being remanded to the immigration judge. Immigrants, even those here unlawfully or otherwise subject to removal, are entitled to at least find counsel. Though the court will not appoint counsel as the proceedings are administrative rather than criminal.

See more below.

Hervens Timothe, A023 590 819 (BIA Aug. 9, 2013) by Immigrant & Refugee Appellate Center

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What does the death of DOMA mean for same-sex couples seeking immigration benefits?

With today’s Supreme Court decision holding the discriminatory Defense of Marriage Act unconstitutional bi-national same-sex couples should have open to them an immigration path that was previously foreclosed. There had been some movement on same-sex immigration cases but they were held in abeyance at best. Today’s holding should allow couples to complete the adjustment of status process.

Couples are still going to have to get married in states that allow same-sex marriage but the federal government will have to recognize them as legitimate for immigration purposes. Beyond that (benefits under state law for example) I don’t know what will happen.

The decision is already having an effect. Reportedly, an immigration judge halted deportation proceedings of a New York man married to his US Citizen partner immediately after the ruling.

Here’s a link to more on the DOMA and Prop 8 decision.

I’ll update as soon as I know more about how the USCIS intends to proceed.

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Link to livestream of Senate CIR markup session

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Immigration reform plan unveiled…

April 16th, 2013 No comments

Some good, some bad. All of it subject to change. It’s Washington of course.

Tons of wasted money on border security and “triggers” (they seem toothless though).

The bill would eliminate the diversity visa. The underlying intent here is likely to stem the flow of African immigrants to the US. Guessing many in DC want to preserve the racial status quo as long as possible and diversity isn’t well regarded on the right.

The elimination of the 4th preference category. So no USC petitions for siblings. It was a long path anyway and perhaps the new paths will be shorter in any event.

The bill would create the “Registered Provisional Immigrant Status”. This would benefit those here unlawfully but also people deported for being out of status if they have qualifying relatives.

An individual would be ineligible if they were convicted of various offenses (including 3 misdemeanors), as well as someone who voted unlawfully.

Derivative petitions will be allowed for spouses and children who are in the US.

Individuals with a removal order and those in proceedings will also be allowed to apply.

This status lasts for 10 years and then the individual may adjust to a permanent resident using the new “merit” based immigration process.

5 years after enactment the US will switch over to a merit based system that “awards points to individuals based on their education, employment, length of residence in the US and other considerations.”

There is more and we’ll have to wait for the details on a lot of this…

Find the full outline below.

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