Visa Lawyer Blog

Articles Posted in Family Visas

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There are presently 3-5 full time I-601 adjudicators, and 3 staff who are on duty. There is a backlog of 7000 – 9,000 I-601 applications. They are discussing opening an office in Los Angeles where they will only work on those backlog cases.

I-601 Procedure:

The applicant has to make his I-601 appointment through the Call Center. He can call to make his I-601 appointment as soon as he knows when his IV interview will take place (He just has to make his I-601 appointment for a date after his IV interview).

When an applicant arrives for his or her appointment, a clerk will take the I-601 packet. It is given to an adjudicator who spends approximately 10-15 minutes reviewing it. The adjudicator does not speak with the applicant.

The applicant is then told to pay a fee of (80) pesos at a kiosk inside the facility. This fee pays for the DHL delivery of the preliminary I-601 decision. The next day, the applicant can go to the DHL office (which is close to the Consulate) and pick up the preliminary decision.

He will either be informed that the I-601 was granted, and given instructions on how to obtain the actual immigrant visa, or he will receive a letter telling him that he has 30 days to submit additional information to support his I-601 application.

If his case is not granted right away, he can supplement the I-601 at any time up to the day he receives a decision. New information can be mailed, or sent via e-mail to the USCIS. This is good for people who prepared an I-601 without an attorney. If they hire an attorney later on, the attorney can file the supplemental documents even if it has been more than 30 days since the case was referred to the backlog. They do not need to file a new I-601.

Between 50% and 60% of I-601 waivers are approved upon filing. There is no information on what percentages of referred cases are ultimately approved. The cases in the “backlog” are taking about 13 to 15 months to decide!!
Expedited Processing:

They will consider expediting an I-601 for serious medical issues. This excludes mental/psychological conditions that have come about due to the separation. If you have a physical medical condition, or a pre-existing mental condition, you can request an expedited decision on your waiver via e-mail.

Criminal Issues:

If your client has any arrests or convictions, you must fully document and disclose them even if the charges were never filed or were dropped. They have been asking for police reports and juvenile records too! Even issues that would not make someone inadmissible can be considered for discretion. They want this information up-front from the applicant.

Denials:

If an I-601 is denied, the applicant may appeal the denial. While the appeal is pending, it is possible to request a new I-601 appointment. The applicant should first contact the call center. They are required to submit a new immigrant visa application, new fees, have a new medical, etc. Basically they have to repeat the whole IV process. However, there is no need to file a new I-130 visa petition. After the new IV interview, they can schedule a new I-601 appointment.

The applicant does not have to withdraw a pending I-601 appeal before submitting a new I-601.

Tips for legal cover letter:
• The consulate will follow BIA case law, so citing cases from a Court of Appeals is a waste of time.

• The less legalese the better; if you are going to include any, save it for the end of the letter.

• Start off your letter with a summary of the case. It is helpful to have a bullet point list of the documents you are submitting.

• Do not bother including country condition evidence since the adjudicators live in Mexico!
I-212 Applications:

The government only adjudicates I-212 applications (Application for Permission to Reapply for Admission into the United States after Deportation or Removal) in conjunction with an I-601 waiver application. So if your client does not need an I-601 waiver, CDJ will not accept their I-212 applications. These applications must be filed in the U.S.

They adjudicate the I-601 first. Because the I-601 standard is higher, if the I-601 is granted, approval of your I-212 is pretty much a given.

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Pro-immigrant advocates believe the Obama administration will have a window of opportunity between this September and March 2010 to shepherd a comprehensive immigration package that will provide a path to legalization for an estimated 12 million undocumented residents, strengthen border security and help the ailing economy.

Part of their optimism is attributed to the large Latino vote that broke for Barack Obama by a 2-to-1 ratio in key states like Arizona, Nevada and Colorado.

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The January 2009 Visa Bulletin has few changes over the December 2008 Visa Bulletin in the employment-based (EB) categories. There is slight forward movement in EB2 India and China. The EB3 category had a more significant change for China, and a minor change for India. The EB categories that were current in December 2008 remain current for January 2009.

For EB2, this category remains current for all countries, with the exception of India and China. The cutoff date for India moved forward by one month, and is now July 1, 2003. China moved forward by slightly more than a month, to July 8, 2004.

For EB3, The cutoff date for the “worldwide” category, as well as the Philippines, did not change, but remains at May 1, 2005. The cutoff date for Mexico advanced slightly more than two months, to November 15, 2002. China saw more significant progress, and, for the month of January 2009, has a cutoff date of June 1, 2002. India jumped forward to an October 15, 2001 cutoff date. Under EB3, this category moved forward to March 15, 2003 for all countries. As you can see the demand for visas exceeds the supply, and the visa crisis continues.

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I have tried to cover most of the key issues that a couple will need in order to succeed in filing the marriage based Green Card. But with a topic a involved and ever changing as this one, there are always questions that couples still like to ask. We have compiled a list of the most common questions that people ask us when attempting to file the Marriage based Green Application in the United States. Hopefully the following Questions and Answers will make your journey through this process a little less confusing.

1. How soon can an applicant that entered the US as a tourist or under the Visa Waiver Program marry a US Citizen, Could they apply for the Green Card in the United States?
Answer: A US citizen can marry a tourist or VW visitor and apply for the Green Card from within the US. It is better to marry 60 days after entry to lift the presumption that the immigrant entered the US in order to get married.

2. How soon after marriage can the US Citizen petition and file the immigration paperwork for the immigrant spouse?
Answer: There is no waiting period that must pass before the immigration petition can be filed. Make sure to have the certified Marriage Certificate registered with the county before you can file.

3. How long will it take to get the work permit after filing the case? How long will it take to get to the final interview after filing?
Answer: Currently it takes 90 days after filing the Marriage based Green Application for the Government to issue the work permit. In some cases the final interview is scheduled even before the Work permit can be issued. In this case, if there is an approval at the interview, there will be no need for the work permit at that time. In most cases though, interviews are scheduled, 5 months or so after filing.

4. What if there is a mistake in your name or date of birth on the Green Card?
Answer: If there is a mistake on your new Green Card you must take steps to correct it immediately. If you fail to do so, you will not be able to receive your social security number and any other documents as a result. You must file form I-90 (get it from USCIS.GOV website) with USCIS. Make sure to Check box d in part 2.2 of the application. There is NO FEE to pay as it was not your fault. You will need to mail the original card to the following address:
National Benefits Center
Attn: I-551 Corrections
705B SE Melody Lane, Box 2000
Lee’s Summit, MO 64063
5. How do you know what taxes to file now that you are a Green Card holder?
Answer: The Internal Revenue Service has several publications you can download or obtain from a local IRS office. www.irs.gov
” Publication 519…..US Tax Guide for Aliens
” Publication 514…..Foreign Tax Credit for Individuals
” Publication 501…..Exemptions, Standard Deduction, and Filing Information
” Publication 54…….Tax Guide for US Citizens and Resident Aliens Abroad
6. How long does a person need to wait after getting the Conditional Green Card before Applying for US Citizenship?
Answer: If the Immigrant is still married to the US Citizen and living together 3 years after getting the Conditional Green, they may apply for Citizenship. If the couple is no longer married and living together, the immigrant must wait 5 years after getting the Conditional Green in order to apply.

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The following information was reported to me and I wanted to share with you for your information. Beginning January 20, 2009, all non-immigrant visa applicants, regardless of visa class, with an appointment at the U.S. Consulate General in Ciudad Juarez, Mexico will be required to use the DS-160 electronic NIV application form available at https://ceac.state.gov/genniv. This form takes the place of the DS-156, DS-157, and DS-158 paper forms. (Note: E class investor applicants will need to fill out DS-156E in addition to DS-160. K class visa applicants will continue to use the DS-156 and DS-156K forms).

Applicants must fill out completely and accurately all questions presented in the online application process. Applicants who incorrectly fill out the form, leave information blank or attempt to use previous paper based forms will be denied, asked to resubmit their applications online again, and required to schedule a new appointment. Applicants need only print the Confirmation Page available after the form is complete and bring it with them to their interview.

Also, as a reminder, the U.S. Consulate in Ciudad Juarez now accepts legal inquiries exclusively through its online form at http://ciudadjuarez.usconsulate.gov/feedback-form.html. Inquiries sent through other means will face significant delays in processing. I expect that other posts around the world will start implementing the new form during 2009 as well.

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Immigration law is important and that is all that we cover most of the time. But our immigrant readers, may be facing other legal challenges from time to time. So we rely on our lawyer friends from across the country, to provide guest articles and reports. This week we are proud to feature Attorney Charles Ward’s Family Law expertise. Charles is an experienced Family lawyer that often assists me with Family Immigration matters. I am grateful for his contribution to the Blog.

Although no one enters into a marriage expecting it to end, about 50 percent of all married couples in California eventually separate. With a prenup you can protect yourself in the event of a dissolution of marriage (divorce).

The prenuptial agreement is a legal device designed to remove some of the concerns and liabilities foisted upon a married couple. A properly crafted prenup can solve disagreements before they happen, whether involving personal business involvement, individually held real estate and property, credit hangups and debt, the disposition of finances, or any monetary arrangements left over from life before marriage. It’s also a useful tool for post-marriage arrangements. Support payments, income arrangements and property rights can all be sorted out in advance, to the satisfaction of both parties.

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At the request of our readers, we are providing more information about the above referenced process. Although it may seem to be simple, we suggest you consult a qualified immigration attorney before filing the application to become a permanent resident based on marriage to a US Citizen.

Step 1:

1. U.S. Citizen Petitioner Completes and Signs the Following USCIS Forms:
Form I-130 – Petition for Alien Relative
Form G-325A – Biographic Information
Form I-864 – Affidavit of Support
Lawyer’s Tip:
• Always check USCIS website at www.uscis.gov for the most recent version of the forms or check with our website for the most recent news and updates.

2. Alien Spouse Completes and Signs the Following USCIS Forms:
Form I-485 – Application to Register Permanent Residence or Adjust Status
Form I-765 – Application for Employment Authorization
Form G-325A – Biographic Information
Form I-131 – Application for Travel Document – Optional
Form I-693 – Medical Examinations of Aliens Seeking Adjustment of Status
Lawyer’s Tip:
• If the Alien beneficiary overstayed their visas, form I131 can not be used and the Alien must not leave the country until the adjustment of status process is complete.

• Medical examinations can be performed only by approved USCIS doctors, please check our website for a national link to approved USCIS doctors.

3. Gather the documents following the provided checklist
4. Make money orders payable to “Department of Homeland Security” or USCIS.

Lawyer’s Tip:
• You can make one money order for the entire amount. For example a complete case will be $1365.

5. Make a complete photocopy of every form and document that you send to the USCIS for your own records. Do not send original documents to the USCIS (e.g. your passport, I-94, marriage certificate, etc.).

6. Mail or Overnight the package certified return receipt via the U.S. Postal Service, FedEx, etc. For Mail, send the complete application to:
USCIS Lockbox Addresses:
For United States Postal Service (USPS) deliveries:
USCIS
P.O. Box 805887
Chicago, IL 60680-4120
For private couriers (non-USPS) deliveries:
USCIS
Attn: FBASI
131 South Dearborn – 3rd Floor
Chicago, IL 60603-5517
Step 2:

1. The USCIS will contact you within 2 weeks and will mail you all the case receipts. At that point your status will change and you will be considered adjusting your status to that of a US resident.

2. Next step is your finger prints appointment.

3. You should be getting the work permit in 90 days or so. If the card is not delivered, you can make an inquiry with the local office via infopass appointment.

Advance parole applications or travel permit should be processed in 90 days as well. This will give you permission to re-enter the U.S. after travel abroad.

4. Next step is your Marriage visa interview, they usually notify the applicants 4 weeks to 3 months in the future.

Step 3:

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At the interview, you are to present the forms and documents the USCIS has requested, if any. They will ask you some basic questions (see our interview questions section) and upon approval place the alien spouse in Conditional Permanent Residence Status. The alien spouse will remain in this conditional status for 2 years. Within 90 days of the end of the 2-year period, you may file to have the conditional status removed, provided you are still married. File USCIS Form I-751 Petition to Remove the Conditions on Residence. When this is approved (6-12 months) you will be a Permanent Resident of the United States.

Lawyer’s tip:
• Make sure to bring duplicate copies of all important documents, such as tax returns, joint bills, bank accounts, etc. Sometimes the officer would like to keep extra copies.

• If the US citizen sponsor’s income fell below the required guidelines be prepared to provide co sponsor affidavit of support
• In case the officer decides to separate the couple, stay calm and do not argue woth the official
• Come prepared and organized, dress professionally.

Read more about the Marriage Interview here..

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Most of our readers are aware that any adjustment of status in a family based petition can not be approved if the relationship is no longer viable. Yet there are certain exceptions from time to time. On August 12, 2008, in Choin v. Mukasey, the U.S. Court of Appeals for the Ninth Circuit ordered the Board of Immigration Appeals (BIA) to consider Ms. Choin’s Form I-485 Application for Adjustment of Status based upon marriage, even though she was no longer married to her U.S.-citizen husband.

The Court found an exception to this for spouses who enter the U.S. on the K-1 fiancé/e visa. This interpretation is limited to a K-1 fiancé/e of a U.S. citizen. There is a specific section of law that addresses the adjustment of status of K-1s and it is the wording of that section that led to the conclusion reached by the Court.

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As lawyers specializing in the 601 Hardship Waivers, we report many more approval from our clients. From Manila to Ciudad Juarez our law firm is fighting the Government and winning!!!

Here is a quick update from the field. Warren Janssen, Officer-in-Charge at the USCIS Ciudad Juarez office, has advised that the immigrant visa waiver appointment system has resumed operation effective September 4, 2008, and that the first available appointments are on November 12, 2008.

On, September 3, 2008, Warren Janssen, CIS overseas officer in charge at Cd Juarez, advised that currently there are no immigrant visa waiver appointments available due to a system address change for the new consulate. The private contractor has to go through several hoops and training before more can be available in the system. Applicants should avoid calling and spending money trying to book an appointment until further notice. As you can from the post above now the system is back up.

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An anxious and worried couple consulted with me recently. The spouse is American and the Husband Filipino who we will call Mr. M.

They presented me with a decision from the local Immigration office intending to deny their Marriage Adjustment Petition. They were given 30 days to file an appeal. The issue in this case was that the immigration officer determined that there was fraud in this case, and hence Mr. M doesn’t qualify for the conditional Green Card. The couple explained that the officer never looked at any of their documents. Rather, she interviewed them separately and determined her conclusions based on the answers they provided.

After reviewing the decision, it was clear that the officer never even looked at the numerous documents the couple collected together. She also ignored the medical condition that the US Citizen spouse was under. The wife suffered from a serious heart condition that affected her memory ability to communicate clearly.

We immediately got on top of the case. In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefit sought. Matter of Brantigan, 11 I&N Dec. 493. Evidence to be considered by the reviewer officer includes evidence of combined financial assets and liabilities, length of time of cohabitation, and other relevant evidence. Chand v. INS, 1997 U.S. LEXIS 19141

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