Visa Lawyer Blog

Articles Posted in Family Visas

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On Friday December 9, 2016, Democratic Senator Dick Durbin of Illinois, and Republican Senator Lindsey Graham of South Carolina, introduced the “Bar Removal of Individuals who Dream and Grow our Economy” BRIDGE act before Congress to protect Dreamers from deportation, and allow them to keep the temporary employment authorization (EAD) they currently possess. This legislation was introduced to provide temporary relief to the young, undocumented, immigrant population that was issued Deferred Action for Childhood Arrivals (DACA) or “deferred status” by President Barack Obama in 2012. Amid mounting pressure to protect the existing DACA program, as well as feelings of fear and uncertainty surrounding the future of the program, several Democratic and Republican Senators have come together to save the program from the Trump administration including Senators Dianne Feinstein, Lisa Murkowski, and Jeff Flake. As you may remember, DACA was first introduced by President Obama in 2012 to provide undocumented immigrants who came to the United States at a young age, the opportunity to apply for employment authorization, and be protected from deportation. DACA is not a form of amnesty, and does not provide a path to permanent residency or citizenship. DACA recipients, commonly referred to as “Dreamers” in the media, are undocumented persons who came to the U.S. as young children, and are pursuing the American Dream through higher education or military service in the United States.

Last week, just before Congress went into recess before the winter holiday, Senator Graham along with other Senators introduced the “Bar Removal of Individuals who Dream and Grow our Economy” (BRIDGE) act which will give current DACA holders “provisional protected presence” for a three year period, as well as undocumented persons who are eligible for the program, but who have not yet applied.  Although this act is not a revelation, given that this “provisional protected presence” sounds a lot like “deferred status” which DACA has already conferred upon DACA recipients, the legislation does promise to protect this population of undocumented immigrants from deportation, and allow them to continue living, working, and studying in the United States without the need to fear deportation. The criteria will also be the same as the eligibility criteria for the DACA program. At the very least this piece of legislation if passed, will protect current DACA holders from losing the temporary employment authorization they already possess, and will shield young undocumented people who would otherwise be eligible for the program, from deportation under the Trump administration.

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One of the most common questions we often receive during in person and telephonic consultations is whether an aggravated felony may decrease a person’s chances to legalize their status in the United States. The harsh reality is that the immigration options for noncitizen aliens convicted of an “aggravated felony” are severely limited, and in most situations, the immigration laws of the United States subject these individuals to the harshest deportation consequences. Even if you have been lawfully admitted to the United States or are currently a Legal Permanent Resident (LPR) you may be subject to deportation if you commit an aggravated felony. In other words, so long as you are a noncitizen alien, you may be at risk of deportation if you are or have been convicted of what is considered an “aggravated felony” in the United States or any other country. What’s more, aggravated felons lose many of the privileges that are designed to provide relief to individuals from deportation, and in some cases these individuals may be prevented from re-entering the United States permanently, following removal from the United States. The immigration laws of the United States, passed by Congress, contain numerous provisions that are designed to keep criminals outside of the United States, and in turn prevent criminals from being allowed to remain in the United States. While Congress has recognized that there are few exceptions to the rule that should be made in cases where there is a compelling argument to be made in favor of allowing a person found guilty of an aggravated felony to remain in the United States, having taken into consideration the fact that an immigrant’s removal may result in extreme hardship for U.S. Citizens. Unfortunately, these exceptions are very few and far in between, and deportation is the most probable outcome. When it comes to crimes of moral turpitude and crimes that fall under the category of “aggravated felonies” the U.S. immigration system is very unforgiving.

What is an aggravated felony?

An aggravated felony is a term that describes a particular category of offenses that carry with them harsh immigration consequences as punishment for noncitizen aliens who have been convicted of these types of crimes. Noncitizens who have been convicted of an aggravated felony lose the opportunity to apply for most common forms of relief available to law abiding noncitizens, that would have shielded them from deportation. Noncitizens who have been convicted of an aggravated felony for example are ineligible to apply for asylum and may not be readmitted to the United States in the future. An “aggravated felony” is an offense that Congress has labeled as such, and does not actually require the crime to be considered “aggravated” or a “felony” to qualify to be an “aggravated felony.” In other words, the term must not be taken literally. Many crimes that are labeled “aggravated felonies” are nonviolent in nature and constitute minor offenses, nonetheless these crimes fall under the Congressional categorization of an “aggravated felony.”

The myth of what constitutes an “aggravated felony”

For purposes of immigration law, an offense does not need to be considered “aggravated” or a “felony” in the place where the crime was committed to be considered an “aggravated felony” under the Congressional definition of “aggravated felony.” There are numerous non-violent and trivial misdemeanors that are considered aggravated felonies per the immigration laws of the United States. At its inception, the term referred to crimes that were of a violent and non-trivial nature including such crimes as murder, federal drug trafficking, and illicit trafficking of firearms. Today, Congress has expanded the types of crimes that fall under the category of “aggravated felonies” to include non-violent crimes such as simple battery, theft, the filing of a false tax return, and failure to appear in court when summoned. To view the complete list of aggravated felonies under the Immigration and Nationality Act please click here. Other offenses that fall under this category include sexual abuse of a minor, although some states do not classify these crimes as misdemeanors or criminalize such behavior for example in cases of consensual intercourse between an adult and a minor. In most situations, a finding of any of these offenses will result in the loss of most immigration benefits, and in cases where the noncitizen is already a legal permanent resident or is in lawful status, the noncitizen will be subject to deportation.

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It is our pleasure to bring you the latest immigration news.

Adjudication of DACA-based Advance Parole

In response to the uncertain political climate, USCIS has responded to rumors that USCIS has suspended the processing of DACA-based advance parole documents. USCIS has confirmed that they have NOT suspended processing of DACA-based advance parole applications, and will continue to adjudicate these applications as normal. In addition, USCIS released a statement notifying the public that they will continue to process all applications, petitions, and requests consistent with current immigration laws, regulations and policies. We have also learned that USCIS has distributed guidelines to USCIS Field Offices across the United States providing officers with a clear framework regarding the issuance of emergency advance parole documents for DACA applicants. Please be aware that if you are in the process of applying for a DACA-based advance parole document, the advance parole document contains an important disclaimer which states that an advance parole document does not guarantee any person admission to the United States. Customs and Border Patrol may use their discretion in deciding whether or not to admit a person with an advance parole document into the United States. DHS may also revoke or terminate an advance parole document at any time.

Donald Trump on Visa Program Abuses

On November 21, 2016 the President-elect, Donald Trump, released an update on the Presidential Transition, outlining some of his policy plans for his first 100 days in office, including his day one executive actions. Donald Trump announced that he during his first day in office he plans to direct the Department of labor to investigate all abuses of visa programs that undercut the American worker. So far, it is unclear what position he will take on nonimmigrant worker programs.

Increase in Filing Fees

On December 23, 2016 USCIS will increase filing fees for certain immigrant and nonimmigrant petitions processed by the service. In order to avoid these fee increases, USCIS must receive your application before this date. The petitions that will be most heavily impacted by the fee increases include Form I-924 for Immigrant Investor Pilot Program, Form I-526 Immigrant Petition by Alien Entrepreneur, the N-400 application for citizenship, I-129 Petition for Nonimmigrant workers, the I-485 Adjustment of Status Application, the I-130 Petition for Alien Relative, the I-129F petition for alien fiancé, and the I-751 Petition to Remove Conditions on Permanent Residence. Fee waivers are available for select family based petitions. For a complete list of the fee schedule please click here.

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Days after defeating Hillary Clinton in the biggest political upset in American history, President elect Donald J. Trump met with outgoing President Barack Obama this morning to ensure a peaceful transition of power. A triumphant Donald Trump also met with Republican Senate Majority Leader Mitch McConnell, and the Republican Speaker of the House of Representatives Paul Ryan to discuss his policy priorities, and the unification of the Republican party. Although Donald Trump will not be inaugurated until January 20, 2017 he has made it clear that he plans to work with Republicans in the House and the Senate, to pass legislation on wide ranging issues during his first 100 days in office. Working with a Republican House of Representatives and Republican Senate, Donald Trump announced his administration’s top three priorities: immigration, health care, and job creation. After meeting with Mitch McConnell on Capitol Hill, Trump told reporters “we’re looking very strongly at immigration, we’re going to look at the borders, very importantly, we’re looking very strongly at healthcare and we’re looking at jobs.”

While Trump has not provided details on what his immigration policy might look like, he has outlined his 10-point immigration plan on his campaign website and his all new website Greatagain.gov.

Here’s what we know so far about what immigration policy might look like under the Trump administration:

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Today, October 24, 2016 the Department of Homeland Security published the final rule increasing fees for certain immigration and naturalization petitions processed by U.S. Citizenship and Immigration Services (USCIS). Overall the Department of Homeland Security increased filing fees for certain petitions by an average of 21 percent. The new fees will be enforced by USCIS beginning December 23, 2016. The fee schedule has been adjusted following the agency’s decision to conduct a comprehensive review of filing fees for fiscal year 2016/2017. USCIS determined that an adjustment in the filing fees would be necessary in order for USCIS to recover costs for services expended and maintain adequate service. The proposed fee schedule was first published on May 4, 2016. The final rule clarifies that all persons applying for immigration benefits may be required to appear for biometrics services or an interview, and thus must pay the biometrics services fee accordingly.

EB-5 Investor Visa Program

The EB-5 Immigrant Investor Visa Program will be most heavily impacted by the new fee schedule. The new filing fee for Form I-924, Application for Regional Center under the Immigrant Investor Pilot Program, will increase by a rate of 186% requiring Regional Centers seeking designation under the program, to pay a filing fee of $17,795 instead of the current rate of $6,230. Regional Centers will be required to pay a $3,035 annual fee to certify their continued eligibility for the designation.

The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, will increase to $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence remains unchanged.

Naturalization

USCIS has established a three-tiered fee schedule for naturalization applicants filing Form N-400 Application for Naturalization. First, the fee schedule includes a standard filing fee for most applicants, from a rate of $595 to $640. Second, DHS has established a reduced fee of $320 for naturalization applicants whose household income is greater than 150% but less than 200% of the Federal Poverty Guidelines. Third, there will be no filing fee for naturalization applicants who are members of the military, applicants with approved fee waivers, and others who may qualify for a fee waiver according to sections 328 or 329 of the Immigration and nationality Act (INA).

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Image Courtesy of Scotland Shop

In this informational post we discuss the I-130 Consular Process for spouses. Consular processing refers to the process by which a U.S. Citizen immigrates their foreign spouse to the United States from abroad. Depending on the foreign spouse’s country of residence, and the volume of applications processed by USCIS, the National Visa Center, and the U.S. Consulate or Embassy where the foreign spouse will have their immigrant visa interview, the process to immigrate a spouse to the United States can take anywhere from 8 to 12 months. Consular processing is a complicated process. It is recommended that applicants obtain the assistance of an experienced attorney to file this type of application.

What is the first step involved in the process?

The first step involves filing the I-130 Petition for Alien Relative. This petition establishes that a relationship exists between the U.S. Citizen and intending immigrant. This petition thus is used for family-based immigration to the United States. A separate I-130 must be filed for each eligible relative that will immigrate to the United States including minor children of the foreign spouse. The filing and approval of the I-130 is the first step to immigrate a relative to the United States. Because this petition is filed by the U.S. Citizen petitioner, the foreign spouse does not need to wait until a visa number becomes available before applying for an immigrant visa at a U.S. Consulate/Embassy abroad. By contrast, if the petitioner is not a U.S. Citizen and is instead a Lawful Permanent Resident, an immigrant visa is not immediately available to the foreign spouse. Due to this, the foreign spouse must wait until their priority date becomes current according to the visa bulletin issued by the Department of State. The I-130 is accompanied by various supporting documents mostly biographical in nature. These documents include the signed forms, the filing fees, passport photographs of the petitioner and beneficiary, the petitioner’s proof of citizenship, a copy of the beneficiary’s passport ID page, copy of their birth certificate with a certified translation, and a copy of the marriage certificate. Once these documents have been compiled, the applicant mails them to USCIS for approval. USCIS takes approximately 4 months to process and approve this application. This time frame will depend on the volume of applications being processed by USCIS at the time of filing.

The National Visa Center Stage

Once the I-130 petition has been approved, USCIS will mail the petitioner a receipt notice known as the I-797 Notice of Action. This Notice of Action serves as proof that the I-130 petition has been approved, and more importantly indicates that the petition will be forwarded to the Department of State’s National Visa Center within 30 days. The National Visa Center is a government agency that conducts pre-processing of all immigrant visa petitions that require consular action. The National Visa Center requires the applicant to send various documents, before the application can be sent to the United States Consular unit where the foreign spouse will attend their immigrant visa interview. The NVC determines which consular post will be most appropriate according to the foreign spouse’s place of residence abroad, as indicated on the I-130 petition. Once the NVC has received all documents necessary to complete pre-processing of the immigrant application, the case is mailed to the consular unit abroad. From the date the I-130 has been approved, it takes approximately 30-45 days for the National Visa Center to receive the application from USCIS and begin pre-processing.

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On September 28, 2016 the Obama Administration published the presidential determination for refugee admissions for fiscal year 2017. For the upcoming fiscal year, the Department of State will authorize admission of up to 110,000 refugees in accordance with section 207 of the Immigration and Nationality Act 8 U.S.C. 1157. The numbers of available refugee admissions will be allocated on a regional basis to the following countries: Africa, East Asia, Europe and Central Asia, Latin America and the Caribbean, the Near East, and South Asia. The president stated in his memorandum that the number of refugee admissions has increased from previous years, due to national interest concerns and the need of humanitarian relief in these regions. Numbers are specifically allocated to refugees of special humanitarian concern to the United States. Fourteen-thousand of the one-hundred ten thousand refugee admissions will go toward an ‘unallocated reserve’ authorizing Congress to distribute unallocated admission numbers to regions where the need is necessary based upon humanitarian concerns. Any unused refugee admission numbers may be transferred between regions, if there is increased need for admission in that region or region(s).

The numbers for refugee admission by region are as follows:

Africa ……………………………………………………. 35,000

East Asia…………………………………………………. 12,000

Europe and Central………………………………………. 4,000

Latin America and the Caribbean …………………………5,000

Near East and South Asia…………………………………40,000

Unallocated reserve………………………………………. 14,000

In accordance with 8 U.S.C. 1101(a)(42) Congress is authorized to grant refugee admissions to the following persons, based on their country of nationality or habitual residence. Such persons are not subject to a numerical limit in order to qualify for refugee admission to the United States: persons in Cuba, Eurasia, the Baltics, Iraq, Honduras, Guatemala, El Salvador, and persons identified by a United States Embassy in exceptional circumstances.

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In this segment, we answer 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question? Please submit your questions to us through our website, or our Facebook page. For more information on the services we offer please click here.

The Affidavit of Support: Using Assets to Supplement Income

Q: I will be petitioning my spouse for permanent residence soon and have a question about the affidavit of support. If I do not have the support of a joint sponsor and my income does not meet 125% of the federal poverty line, can I use my assets?

A: Yes, you may use your assets to supplement your income if your total income does not meet the income requirements of the 2016 HHS poverty guidelines according to your household size, as specified by the charts below. If your total income falls short, you may submit evidence to demonstrate the value of your assets, or the sponsored immigrant’s assets, and/or the assets of a household member with their consent. Not only can the assets of the petitioner, immigrant, or household member be used to supplement any deficient income, but the assets of these persons can be combined to meet the necessary financial requirement. In order to use assets, the total value of the assets must equal at least five times the difference between your total household income amount and the current Federal Poverty Guidelines for your household size. An exception exists for U.S. citizens sponsoring a spouse or minor child. In this case, the total value of the assets must only be equal to at least three times the difference. Not all assets may be used to supplement income. Assets that can be converted to cash within one year without hardship or financial harm may only be used to supplement income. The owner of the asset must provide a detailed description of the asset (if the asset is property, an appraisal can be included or online listing from a reputable website showing the estimated value of the asset), proof of ownership of the asset (title, deed, etc.), and the basis for the owner’s claim of its net cash value. If you are using your home as an asset, you must use the net value of your home (the appraised value minus the sum of all loans secured by a mortgage, trust deed, or other lien on the home). You may use the net value of an automobile only if you can show that you own more than one automobile, and at least one automobile is not included as an asset. Other examples of typical assets used to supplement income include property, 401k, IRA, mutual investment fund, etc.

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On September 21, 2016 the United States Citizenship and Immigration Services (USCIS) posted the adjustment of status filing dates for October 2016.

If you are waiting to apply for permanent residence based on an approved family-sponsored petition (I-130) or based on an approved employment-based petition (I-140), USCIS has advised that you refer to the ‘Dates for Filing Applications’ chart on the October Visa Bulletin to determine when to file your application for permanent residence according to your priority date (the date when your relative or employer properly filed your immigrant visa petition with USCIS) and your preference category. Generally, applicants who have filed the immigrant petition and have been approved, must wait in line until an immigrant visa becomes available, before seeking adjustment of status to permanent resident. This is because availability of immigrant visas for certain classes of immigrants are limited. These preference categories appear in the Visa Bulletin, as well as the number of visas available for each preference category.

Note: For employment-based petitions if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.

What is the Visa Bulletin and the Dual Chart System?

Every month, the Department of State releases a monthly Visa Bulletin which provides estimates on immigrant visa availability according to family-sponsored and employment-based preference categories. As you may recall, in September of last year, USCIS introduced a new chart called the ‘Dates for Filing Applications’ chart in addition to the ‘Application Final Action Date’ chart. Together this dual chart system governs when applicants may file their applications for permanent residence according to visa availability, the applicant’s preference category, and the date of filing (priority date).

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