Boston Immigration & Nationality Law

245(i) and substitution of beneficiary on I-140

A reminder about 245(i) and substitutions: in general, a person not lawfully present in the US (whether by overstay or by entry without inspection) can adjust ONLY if he or she was the beneficiary of a petition filed prior to April 30, 2001; was in the United States on December 21, 2000, and if the petition was approvable when filed.

Examples:

1. A, an overstay, is in the US on December 21, 2000. His brother, a U.S. Citizen, files an I-130 for him on January 4, 2001. In 2003, employer E substitutes A in on an I-140 petition. A can apply to adjust status (get the green card) because he meets the qualifications for 245(i) protection.

2. B, an overstay, is in the US on December 21, 2000. No petition is filed for her prior to April 30, 2001. In 2003, employer E substitutes B in on an I-140 petition. B CANNOT adjust status, because she has not met the qualifications for 245(i) protection.

I bring this up, because I recently met two people with situations similar to example 2. Each paid substantial amounts to lawyers (one paid more than $12,000) for substitutions that had no chance of success... and notified USCIS of their whereabouts and status in the process.

Immigration Medical Exam

When you apply for permanent residence, one of the pieces of evidence that you must submit is the I-693, "Medical Examination of Alien Seeking Adjustment of Status." I am often asked if an exam by the immigrant's own doctor is acceptable for this green card requirement; actually, the exam has to be performed by a doctor on USCIS's list of Civil Surgeons. I've included a link to the Civil Surgeons Locator here, and on my list of immigration resources on the sidebar.

245i: watch out!

I was giving consultations at an immigration clinic in Boston recently, and met a Brazilian whose employer had filed a labor certification for him under the 245i Legalization program of 2000-2001.  The initial paperwork was filed prior to April 30, 2001, but the original employer was no longer in business, and the man wanted to know what options were available to him.

Some background: in many cases, beneficiaries of petitions filed under 245i can file in another category. For example, if the immigrant was the beneficiary of a 245i qualifying petition filed by his sister who was a U.S. Citizen,   then he'd have a wait of around 12 years, judging by the most recent  visa bulletin... or longer, if he were from Mexico or the Philippines.  However, if there were another, quicker way available, then the immigrant could be "grandfathered" by virtue of the old petition (that is, file a new petition but keep the 245i benefit of being allowed to adjust status here in the United States.)

To do so, though, you need to be able to show USCIS that your petition was "approvable when filed." If not,  you won't be able to benefit from the original petition, and you won't be able to take advantage of the grandfathering, either.

In the case I saw, the potential beneficiary didn't have the required job experience for the job at the time then application was filed, and so wouldn't have qualified for the green card in the first place.  Again, if you are a potential beneficiary under 245i, make sure that you were qualified for the benefit as of the date of filing, before moving forward.

Preference Categories for family immigration

When applying for people who are not the parents, spouses, or unmarried minor children of United States Citizens, the term "preference category" is bound to come up.  This refers to the quota system by which USCIS apportions visas. This being said, it's possible to have an APPROVED petition, and still have to wait for years before the green card application can begin.

The categories are divided as follows.

First : Unmarried Sons and Daughters of Citizens                           

Second : Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents         

• A. Spouses and Children
• B. Unmarried Sons and Daughters (21 years of age or older)                                                             

Third : Married Sons and Daughters of Citizens                              

Fourth : Brothers and Sisters of Adult Citizens

Looking at the preference categories from the visa bulletin for April, 2007 (see below), we see that USCIS is working on applications received on or prior to the dates listed.

For example, if the petition you filed is for a married (Brazilian) son of a U.S. Citizen, and it was filed on April 25, 2001 --  prior to the 245i date -- look at the current visa bulletin to see what date USCIS is working on. First, identify the category. In this case, that would be third preference. Next, as we're not talking about a Mexican, Indian, Philippine or Chinese person, we see that the date USCIS is working on is March 22, 1999. Assuming that cases continue to be processed at a constant rate, there should be a 2 year wait for the next phase of the process.

If, say, a U.S. Citizen filed for his Mexican brother on June 1, 1994, then that person would be in the fourth preference category -- and as the priority date for Mexicans in that category is June 8, 1994, the beneficiary could be eligible for consular processing if outside the U.S., or to adjust status, if here.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

Family	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPPINES
1st	08MAY01	08MAY01	08MAY01	01JAN94	22FEB92
2A	01APR02	01APR02	01APR02	01DEC00	01APR02
2B	15AUG97	15AUG97	15AUG97	01MAR92	01OCT96
3rd	22MAR99	22MAR99	22MAR99	08FEB88	01JAN85
4th	01MAY96	15OCT95	01JAN96	08JUN94	01NOV84

How to get a green card when the beneficiary is outside of the U.S.

Today's question: how do I apply for a green card for a family member who is outside of the United States?

A United States Citizen can apply for a spouse, parent, child or sibling. A permanent resident can apply for a spouse or an unmarried child.

As always, check with an immigration attorney to make sure that all procedures are followed carefully, and to ensure eligibility for permanent residence of the beneficiary. In some cases, the beneficiary may be ineligible due to previous immigration violations or crimes committed, and in others, a waiver may be available.

First, the form I-130 with filing fee and appropriate supporting documentation is filed to the USCIS Service Center with jurisdiction over the petitioner's place of residence. If all papers are in order, USCIS will approve the case and forward it to the National Visa Center, or "NVC". Once the NVC receives it, if a visa number is available,  it will send out bills for additional fees to be paid, and, when these are received, sends out the application for the visa and the affidavit of support to be completed. When these forms are received, NVC forwards the file to the appropriate consulate or embassy for further action.

The consular office schedules a visa interview, and sends out a list of evidence the beneficiary will need to bring. If all goes well at the interview, a visa is affixed into the passport, and the beneficiary enters the United States as a permanent resident -- and hopefully, receives the green card in the mail soon afterwards.

The process can be slow -- from a year to several years, depending on preference category.

It should go without saying, but this is a general outline, and each case is different. If you want to file for a relative, feel free to call my office to schedule an appointment.

Help for victims of abuse

The Violence Against Women Act, or VAWA is a fairly complex area of immigration law, but simply put, relief may be available if a person (man or woman) can show the following:

1. He or she is married to – or is an unmarried child under 21 of – a person who has married a United States Citizen or Permanent Resident*, or, in some cases, is the parent of a United States Citizen;
2. He or she has a valid marriage and resided with the spouse (evidence might include shared bills, shared finances, children born to the couple, and statements of people who can attest to the validity of the marriage), or had a recognized parent-child relationship;
3. He or she was subjected to abuse (physical abuse or extreme cruelty) at the hands of that relative; and
4. He or she can demonstrate good moral character.

If these conditions are met, the victim of the abuse can file a petition for permanent residence under VAWA. In a spousal context, a filing is even possible where the couple was divorced, as long as the case is filed prior to the second anniversary of the divorce. Also, if the victim is in immigration proceedings, there are defenses against removal as long as certain conditions are met.

As I mentioned, this is a very technical law, so if you believe that you or someone you know qualifies, it’s wise to consult with an immigration lawyer. For example, if the marriage was a bigamous marriage, it’s STILL possible to seek relief under VAWA! There are other avenues for people who might not qualify under the above-mentioned criteria, but who are victims of abuse, so be sure to talk with someone about this – if for no other reason than to seek help.

Another consideration is this: if a person who has the possibility of a VAWA process is already working with an immigration lawyer for a family petition, that person should seek out another lawyer for a consultation. This is because, in joint petitions, the lawyer is representing both husband and wife, and cannot advise one to do something that would affect the other negatively – that is, the lawyer could not help in a conflict of interest situation.

Unfortunately, some people use the immigration process to subjugate others. I've seen cases in Boston where a citizen or permanent resident marries a foreign person, and then doesn’t file for the that person, so as to foster dependence – and abuses the spouse, and holds the threat of not filing over the spouse’s head “don’t tell anyone, or I won’t file for you” or, “if you tell anyone, I’ll report you to immigration” or “if you tell anyone, I’ll withdraw my petition for you (and/or your children).” With VAWA, the victim of abuse finally has a shield. Again, if you or anyone you know is in this situation,  first, ensure safety, then seek a consultation with an immigration attorney.

*(or of a person eligible for relief under the Cuban Refugee Adjustment Act of 1966; the Haitian Refugee Immigration Fairness Act of 1988 (HRIFA); or the Nicaraguan Adjustment and Central American Relief Act (NACARA))

Conditional Residence through marriage to a U.S. Citizen, Part 2

What about situations where the couple cannot file a joint petition for one reason or another?

As mentioned earlier, some of these situations would be:

1. separation;
2. divorce or annulment;
3. death of petitioner;
4. extreme hardship; and
5. spousal/parental abuse.

Separation is the most problematic. If the couple is separated, and there is no final divorce decree, the non-citizen spouse and children cannot file the I-751. The only exceptions would be cases where the U.S. Citizen has abused the conditional residents, or cases where the conditional resident could show extreme hardship.

Otherwise, in cases of divorce, annulment, or death of the petitioning spouse, the conditional resident could immediately file the I-751. In such a case, it would be essential to include as much evidence of the validity of the marriage as possible.

These cases can be tricky, so again, seek the counsel of an immigration attorney if you find yourself in this situation.

Conditional Residence through marriage to a U.S. Citizen, Part 1

As mentioned in a previous post, if the foreign national who got a green card through marriage to a U.S. Citizen was married under two years (or if a child got Permanent Residence through his or her U.S. Citizen Stepparent prior to the second wedding anniversary) when the Permanent Residence was granted, the green card is valid for only two years, and a joint petition must be filed by husband and wife (and any Permanent Resident children) to remove the condition on residence in the ninety days prior to expiration.

To apply, one sends USCIS form  I-751 with filing fees and a copy of the green card to the appropriate USCIS Service Center.  It's important to submit as much evidence of a good-faith marriage as possible; this will make it easier for the USCIS officer to make a quick decision, and send out an approval (some cases can drag on for years; I'm aware of one in Boston that took eight! You should jump at any opportunity to speed up the process...)

In some cases, either due to insufficient or unconvincing evidence, or perhaps as a quality control measure, the couple will be called in for an interview at the local District Office. Again, this can take  a long time.

The categories of evidence to submit includes: documents showing that the couple lives together, holds themselves out as a married couple, shares finances, and, if they have children, birth certificates. Some examples, in a VERY partial list:

• Bills;
• Leases/deeds/mortgages;
• Affidavits from friends and family attesting to the validity of the marriage;
• Joint bank accounts;
• Birth certificates of children;
• Hospital records;
• Life insurance policies;
• Health insurance policies;
• Automobile insurance;
• Joint tax returns;
• Evidence of joint ownership of assets/property

In short, gather every bit of paper that has the names of both husband and wife on it.

As an aside, my wife is a conditional resident, and sometime in August we'll be jointly filing an I-751. We keep a file folder into which we put the kinds of documentation that we know we'll need to submit, so when it comes time to file, it should be  fairly easy to put the application together. As we've taken a few trips together, we'll include airplane tickets and itineraries to the application packet, to show that not only do we live together, but that our vacations are with each other, and not from each other! With any luck, and a well-prepared packet, Ana will get her approval and we won't have to go to the Boston District Office for an interview.

To continue, when USCIS receives the completed application, it sends a receipt notice extending Permanent Residence for a year, for work and travel purposes; then, it's a matter of waiting for a fingerprint appointment and then decision, a request for more information, or an interview notice.

As always, if the permanent resident has had any interaction with the criminal system, it's important to seek the advice of an immigration attorney. Of course, it's always wise to do so when working through the maze of immigration regulations, as every case has its own complexities.

In my next post, I'll talk about situations where the joint petition can't be filed, due to separation, divorce, annulment, death, extreme hardship, or spousal/parental abuse.

Obtaining a green card through marriage to a U.S. Citizen

When permanent residence, or the "green card" is acquired in the United States, the process is called Adjustment of Status. When it is acquired outside of the United States, in a consulate or embassy, the process is called "Consular Processing." I'll be talking about Adjustment of Status today.

As with most immigration processes, there is a good deal of paperwork involved. It's important to get it right; if forms are filled out incorrectly, or necessary documentation is not included, USCIS can reject the packet, or worse. An example of worse: I once had to help new clients find out what was going on with their case, which had major delays; it turned out that they had incorrectly entered the Alien number on the forms, and this derailed the process. Luckily, we were able to correct that and the non-citizen spouse got her green card.

To be eligible to adjust status, generally speaking, one must have been inspected and admitted to the U.S. -- that is, must have entered with a visa. There are some exceptions, both ways: for example, someone with a crewman's visa is not eligible to adjust, and someone who entered without inspection but who has 245(i) protection can. As always, you should speak to an immigration attorney about the specifics of your case!

Other eligibility issues are any criminal arrest or involvement of the noncitizen beneficiary, and now, with the passage of the Adam Walsh Child Protection and Safety Act of 2006, certain offenses of the petitioner, which can render the U.S. Citizen ineligible to petition.

Finally, if the noncitizen beneficiary has engaged in immigration fraud, or has any other ineligibility issues, he or she should consult with an attorney, as there are waivers available in certain cases.

Forms used in a spousal petition are:

• I-130, Petition for Alien Relative;
• I-485, Application to Register Permanent Residence or to Adjust Status;
• I-864 , Affidavit of Support (and another, if a co-sponsor is needed)
• I-765, Application for Employment Authorization (or "EAD");
• I-693, Medical Examination; and
• G-325, Biographical Information for both husband and wife.

If the noncitizen is eligible, he or she may also apply for a travel document on form I-131.

Documentation needed:

• Proof of citizenship of U.S. Citizen spouse;
• Proof of eligibility of alien spouse (passport, proof of inspection and admission);
• Proof of marriage (and proof of eligibility to marry, if either spouse has been married in the past);
• Passport-style photographs of petitioner (2) and beneficiary (4)*; and
• Proof that the U.S. Citizen spouse can support the beneficiary financially.

In most cases, applications are sent with fees (the sooner the better!) to the Chicago lock box, which forwards the packet to the National Benefits Center in Missouri.

USCIS sends receipts, then schedules fingerprints. Shortly thereafter, EADs are sent out, then, depending on the backlog at your local USCIS office, the next step is to wait for the interview (in Boston, this can be as short as three months) where the couple will have to prove that the marriage is a good faith one.

Finally, if the couple has been married less than two years by the date of approval of the petition for permanent residence, the green card will be a conditional one, granted for two years. That is, the new green card holder will have to file jointly with the U.S. Citizen spouse to have the condition removed within the 90 days prior to expiration, and will have to prove again that the marriage was a good faith one.

* 5, if applying for a travel document