Articles Posted in Family Visas

Clients and Blog readers are often asking about the Conditional Green Card, what conditions? Very Confusing subject. In this Blog Article, Marie Puertollano from our office covers this issue.

An immigrant can obtain a Permanent Resident Card, also called “green card,” through marriage to a US citizen. The green card is conditional if the marriage was less than two years old on the day the applicant (the immigrant) was given permanent residence.

The conditional green card is valid for two years only. The applicant must file an I-751 application before the green card expires. Never count on the USCIS to remind you of the two year deadline.

Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. We report some good news for many Visa Waiver Overstay clients that are married to US Citizens.

The American Immigration Lawyers Association presented the following question to the Service:

Members continue to report inconsistencies in the treatment of these cases. AILA requests that USCIS remind the field that immediate relatives admitted on a visa waiver are eligible to adjust and to release that guidance to the public, so that AILA members and stakeholders in general can address issues that may arise in field offices that are not adjudicating applications in a manner that is consistent with the guidance.

Here we go again. A federal grand jury has indicted a former Sacramento immigration consultant and 13 other individuals alleging they participated in an elaborate immigration fraud scheme in which foreign nationals from Eastern Europe and Russia paid to enter into sham marriages with locally recruited U.S. citizens.

For foreign nationals, marriage to an American citizen is one means of obtaining lawful permanent residency in the United States. To initiate that process, aliens who are outside the country must apply for a fiancé visa, which enables them to travel to the United States to marry the citizen spouse. Alternatively, foreign nationals who are already in the United States and entered the country legally, may wed here and apply for lawful permanent residence based upon the marriage.

According to court documents, the scheme involved foreign nationals from Eastern Europe and Russia who paid fees of up to five figures to enter into sham marriages with U.S. citizens. U.S. Attorney Benjamin B. Wagner announced the unsealing of the multi-count indictment charging former immigration consultant Sergey Potepalov, 55, of Citrus Heights, Calif., and the other defendants with conspiring to commit marriage fraud, defrauding the United States, making false statements, and inducing aliens to enter and remain in the United States.

The Immigration and Nationality Act (INA) permits the change of an individual’s immigration status while in the United States from nonimmigrant or parolee (temporary) to immigrant (permanent) if the individual was inspected and admitted or paroled into the United States and is able to meet all required qualifications for a green card (permanent residence) in a particular category. The common term for a change to permanent status is “adjustment of status.” In order to conclude the process the couple must go through an interview before a USCIS official, establish that the case is bona fide, before obtaining a Green Card.

Many clients are hesitant to take an attorney with them, and are often confused as to whether one can even have an attorney present at the interview. Some officers make it difficult on lawyers and clients who are represented. A recent AILA meeting with the USCIS clarified a few points.

The following questions were raised by American Immigration Lawyers representatives: We have received reports that some field offices restrict the involvement of the attorney during the interview process. The USCIS Milwaukee Field Office has stated that it follows AFM §15.8, which explains that the attorney’s role at the interview is limited to advising his or her clients on points of law, and that the attorney may not respond to questions the interviewing officer has asked the applicant. The office has stated that after the interview, the attorney may follow-up with any concerns regarding the interview and interview questions, or may submit additional information in response to a Notice of Intent to Deny. While we understand the attorney may not answer any questions on behalf of the applicant, there are often times where it is not only appropriate, but helpful to the examiner for an attorney to help clarify a point of confusion, provide prepared documents on a legal issue, or explain a complicated procedural issue in the applicant’s immigration history that the applicant might not fully understand. What guidance, if any, in addition to the AFM, has been provided to USCIS examiners regarding the role of the attorney in the interview process?

Immigration Response: USCIS has spent a considerable amount of time training the ISOs on interview techniques. This training is provided at the field offices and at the ISO Basic training and includes information on the role of the attorney or representative in the interview. Also, as discussed at the meeting with AILA, AIC, and USCIS in April 2011, we welcome suggested language from AILA to potentially incorporate into any guidance USCIS creates regarding this topic.

Attorney Seating. We have been informed that during interview for immigration benefits, attorneys are sometimes instructed to sit in a corner of the room, behind or otherwise apart from the applicant. Examiners have remarked that this rule is to prevent attorneys from participating in the interview. Such a rule conflicts with the right to representation as provided under 8 CFR §292.5(b). Would Field Operations send clear guidance to the field offices stating that attorneys have a right to attend and represent their clients at interviews for immigration benefits, and should be permitted to sit next to their clients, or make other comparable arrangements if space does not easily permit, that would allow the attorney to properly observe the interview and provide appropriate legal assistance?
Immigration Response: Field Operations provided guidance to its offices regarding seating of attorneys during interviews in May 2010 and again in April 2011.

It is critical that USCIS respect the integrity of the attorney/client relationship. Attorneys and/or accredited representatives should, barring safety or security concerns, be permitted to sit next to their clients during interviews. In terms of safety and security, in directing seating during benefit interviews,
adjudicators should ensure that:

Officers have a full view of everyone in the room,

No one in the room, other than the officer, is seated in view of a government computer/monitor screen, and

Egress is not blocked for any of those present in the interview room. Please understand that some interview rooms are not large enough to accommodate the applicant(s) and attorney all sitting in the same row. In these situations, an attorney may be asked to sit behind his or her client.

If you have retained an attorney, it is your right to have that attorney be present with you at the interview and provide you the best representation at that interview. A competent attorney should know his rights before the USCIS, in addition to knowing the law. USCIS are not always correct, it is our role to advocate for our clients.

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The Immigration Law field is one of the most abused areas of law by scam artists, trying to pray on innocent Immigrants. We see such victims all the time.

Immigration officials are teaming up with federal and state prosecutors, the Federal Trade Commission, lawyers’ groups and immigrant advocate organizations in a new nationwide effort to combat an epidemic of schemes by people posing as immigration lawyers.

The campaign, which will begin in Washington soon, is an effort by the Obama administration to step up one form of assistance to immigrant communities, which have intensified their criticism of President Obama as they have faced a record pace of deportations in the last two years.

An Application for Waiver of Grounds of Inadmissibility is filed by an alien in the event that an alien has been denied admission to the United States. Different sections of INA § 212 allow for the application of a waiver of inadmissibility. Waivers must establish that a qualifying relative will suffer “extreme hardship” if the alien is not admitted. So who is the qualifying relative? It depends on the ground of inadmissibility. A waiver for prior unlawful presence (INA 212(a)(9)(B)(v)) or misrepresentation (INA 212(i)) requires it to be established that “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien,” whereas a waiver for criminal history (INA 212(h)) requires it to be established “that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.” A US citizen fiancé(e) may also be a qualifying relative [9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i)]. For the purposes of this memo the Application for Waiver of Grounds of Inadmissibility will be referred to as an I-601.

USCIS 5/9/11 policy memo on how USCIS processes requests to expedite the adjudication of Forms I-601, Application for Waiver of Grounds of Inadmissibility, filed by individuals outside of the U.S. The receipt notice template, Appendix 41-5, is attached following the memo.

It has been USCIS’s longstanding policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application. Consistent with this policy, an applicant may request that the adjudication of a Form I-601 be expedited. Requests to expedite in the Form I-601 adjudication context present unique challenges.

Following our updates on the Visa Waiver Adjustments, here is a summary from USCIS Headquarters Liaison Meeting. As of now, USCIS has not yet provided guidance to the field with respect to the eligibility of an alien who was admitted under the Visa Waiver Program (“VWP”) to adjust status as an immediate relative under INA § 245 at any time prior to the removal of the alien under INA § 217.

Several USCIS District Offices are holding in abeyance immediate relative adjustment of status applications by applicants who entered under the Visa Waiver Program and whose VWP 90-day admission expired prior to the filing of the Form I-485, and at least one district (San Diego, California) is intending to deny such applications.

The Solicitor General has acknowledged the adjustment eligibility of an alien admitted under the VWP in a brief in opposition to certiorari filed in Bradley v. Holder, Case No. 10-397 (AILA Doc. No. 10122752). 5 In the brief, the Solicitor General acknowledged at page 9:

U.S. Senator Robert Menendez (D-NJ) introduced the Military Families Act. The Military Families bill would allow the noncitizen immediate family members of active military service members to apply to become lawful permanent residents of the United States.

This is a much needed bill that fills a gap at the intersection of military and immigration policy. Our military men and women have put their lives on the line to protect us and serve this country. Many of them are residents and have access to an accelerated path to citizenship because of the commitment and sacrifice they are making. However, their families, who are also sacrificing a great deal, remain in this limbo, with a family member fighting for the country that wants to deport them.

Until now, the only way to address the issue of military family members being deported has been through private bills. Although they provide some sort of relief, they are rare and only help one family at a time when there are hundreds if not thousands more suffering and living in the shadows.

We have been following the Visa Waiver Adjustments crisis since it started in July 2010. In a recent meeting between local AILA lawyers and the USCIS San Diego office the following question was raised by the local AILA lawyers:

USCIS Headquarters meeting on April7,2011 relating to adjustment following a Visa Waiver Overstay, AILA minutes distributed indicating ” AILA requests that USCIS immediately issue guidance to the field clarifying that an alien admitted under the Visa Waiver program may adjust status as an immediate relative notwithstanding the filing of form I-485 after the expiration of the Visa Waiver period of admission.

USCIS National Response: All field offices have been instructed to adjudicate I-485 applications filed by individuals who last entered the US under the visa waiver program and overstayed on their merits, UNLESS, the potential beneficiary is the subject of INA section 217 removal (deportation) order. Additionally filed office have been instructed to hold in abeyance all visa waiver adjustment applications for potential beneficiaries who have been ordered removed under section 217 INA. We are drafting final guidance including an AFM (Adjudicator Field Manual) update on this topic we expect to issue soon.”