Many Canadians, as well as nationals from foreign countries around the world, have been unpleasantly surprised when they are refused entry into the United States because of a criminal conviction that may be decades old. The denial of admission may come after many successful admissions into the U.S., and is due to increased data sharing between enforcement agencies of the two countries.
Fortunately for most Canadians, there is a straightforward process for obtaining a waiver (a sort of pardon) for a criminal conviction or an outstanding arrest warrant, for instance. Any outstanding arrest warrant must be cleared up before a waiver will be granted.
At the U.S. border, the officers of the Customs and Border Patrol (CBP) are trained to look for seven grounds of inadmissibility:
1. Conviction of any offense “relating to” controlled substances;
2. Conviction of a single moral turpitude offense (as defined below) unless the offense comes within an exception:
• The petty offense exception applies if the noncitizen committed only one moral turpitude offense that carries a potential sentence of a year or less and a sentence of six months or less was actually imposed; or
• The youthful offender exception applies if the noncitizen committed only one moral turpitude offense while under the age of 18, and five years has passed since conviction (in adult court) or release from resulting imprisonment;
3. Formal admission of controlled substance or moral turpitude offense (no conviction is required, but where the charge was resolved in criminal court as less than a conviction the ground does not apply; this ground does not often come up);
4. Person is a current drug abuser or addict (conviction not required);
5. Government has “reason to believe” the person has ever been or assisted a drug trafficker (conviction not required);
6. Person has engaged in prostitution or commercialized vice (conviction not required);
7. Two or more criminal convictions of any kind where an aggregate sentence of five years or more was imposed.
Crimes involving moral turpitude include murder, manslaughter, rape, theft, bribery, forgery, aggravated battery, prostitution, and fraud. It is interesting to note that driving under the influence, breaking and entering, disorderly conduct, and simple assault are not grounds to deny entry into the U.S.
Please note that if you are found inadmissible at the border under INA (Immigration and Nationality Act)
Section 212(a)(6)(C)(i) for fraud or material representation, you will be
permanently barred from entering the U.S. unless you obtain a waiver of
inadmissibility.
If a CBP officer at the border finds that one or more of the INA grounds of inadmissibility applies, the officer may recommend that the applicant seek a waiver of inadmissibility (form I-192). The waiver can be obtained through preclearance at the Vancouver International Airport or at other locations. An Admissibility Review Officer (ARO) will consider the following three factors in deciding whether or not to grant an application for an I-192 waiver:
1. the risk of harm to society if the applicant is admitted;
2. the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any;
3. the nature of the applicant’s reasons for wishing to enter the United States.
The processing times for the waiver varies from case to case, generally taking at least 3 to 4 months for the first waiver. The first waiver is usually for one year. Each subsequent waiver is good for a maximum of five years at a time.
If an application for a waiver is denied once, it will likely be denied again and again, unless the facts of the case have changed significantly. This makes it essential that the applicant seek legal advice from a U.S. immigration lawyer before submitting any applications to the U.S. Government.
Kathleen Lord-Black
U.S. Immigration Lawyer
Vancouver, BC, Canada
tel:(360) 329-2436 (U.S.) and (604) 352-2006 (Canada)
www.immigration-etats-unis.com
Thursday, October 10, 2013
Saturday, October 13, 2012
SPONSORING THE ELDERLY IMMIGRANT – WHAT’S AT STAKE
Many questions arise when a lawful permanent resident or U.S. citizen considers sponsoring an elderly relative, for instance a mother-in-law who resides overseas.
In general, each sponsor must complete and sign an affidavit of support, which is a contract between the sponsor and the government in which the sponsor promises to reimburse the government for certain government “means-tested” benefits (i.e., benefits based on income) received by the sponsored immigrant.
The affidavit of support is a legally enforceable contract that either the immigrant or the U.S. government can enforce against the sponsor for reimbursement of any means-tested benefit (such as Medicaid), but not later than 10 years after the immigrant last received the benefit. Current Immigration Service policy regarding federal “means-tested” benefits can be found in the Foreign Affairs Manual, the Federal Register, and the websites for USCIS, HHS, and SSA.
Here are some of the frequently-asked questions that would arise a scenario in which an elderly mother-in-law would be the beneficiary:
- How long after my mother-in-law gets her green card will it take for her to get Medi-Cal or Medicare?
- If she needs hospitalization or very expensive medical care, will my/my wife be responsible for the fees? Will they be able to go after our assets or salaries?
- Will she qualify for any social security or other financial help from the government?
Regarding Medi-Cal, Medicare, and Medicaid here are the general rules: The Medi-Cal Aged & Disabled Federal Poverty Level program requires that the elderly participant be over 65 years of age and have less than $2,000 in assets. This is a federal “means-tested” benefit because it depends in part on the income of the participant. There is also SSI-linked Medi-Cal for people with low income who are aged, blind, or disabled. Medicare is a federal program that is not “means-tested.”
In general, all persons 65 or older who have been legal residents of the U.S. for at least 5 years are eligible for Medicare. A person is eligible for Medicare if he/she or his/her spouse also worked for at least 10 years in Medicare-covered employment, and is a citizen or permanent resident of the United States. If the person is not yet 65, he/she might also qualify for coverage if he/she has a disability or with End-Stage Renal disease (permanent kidney failure requiring dialysis or transplant). However, since in most cases the elderly immigrant has never paid Medicare taxes for a minimum of 10 years and has not been a legal resident of the U.S. for at least 5 years, then he/she must pay the monthly premiums in order to be enrolled in Medicare.
There are some narrow exceptions to this general rule. Regarding Medicaid, there is a five-year ban on Medicaid benefits, so the elderly immigrant would not be eligible for Medicaid for the first 5 years he or she will be in the U.S. In general, the sponsor is responsible for reimbursement of "Federal means-tested benefits", which include Medicaid, welfare, and food stamps. Of the three, Medicaid is the benefit that is most applicable in the case of the elderly immigrant, because it is a low-income benefit that is used to pay for nursing homes for the elderly poor (unlike Medicare, which is not based on income, and is a health insurance program for the elderly).
Current Immigration policy is that Medicaid has to be reimbursed by the sponsor to the state or federal government, since the new affidavit of support covers both federal and state benefits. To summarize the above threshold points:
1. There are both federal and state benefits for the elderly and for the poor. Basically, “means-tested” benefits refers to benefits based on income. In general, the agency granting these benefits has the right to seek reimbursement from the sponsor of the immigrant who obtains these benefits (whether state or federal).
2. Regarding eligibility, there is a 5-year bar on certain federal benefits. This may not be the case for state and local programs. Therefore, the elderly immigrant could probably apply for any state and local programs at once, should their rules allow.
3. Key issues involve (1) eligibility, (2) reimbursement, and (3) inadmissibility as a “public charge”.
I Eligibility
The issue of eligibility for federal and state programs depends on the individual program. It is advisable to check with the city and county to see what they offer, and what their requirements are. Be sure to ascertain whether the program considers itself to be “means-tested”, and whether their policy is to seek reimbursement.
II Reimbursement
Title 8, Chapter 12, Section 1183a of the U.S. Code is the federal law that sets out the requirement that a sponsor reimburse the means-tested benefits received by the immigrant. It states: “Upon notification that a sponsored alien has received any means-tested public benefit, the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefit.”
The period of enforceability is either (a) the date of naturalization of the immigrant, (b) after such time as the immigrant has worked 40 qualifying quarters, or (c) death of the immigrant, plus other qualifying factors. In order for the agency supplying the means-tested benefit to claim reimbursement from the sponsor, the agency must have designated the program as such prior to the sponsor’s submission of the Affidavit of Support (form I-864), and the agency must actually request reimbursement from the sponsor. The Foreign Affairs manual leaves it up to the aid agencies to decide whether or not to designate itself as a means-tested program, and whether or not to seek reimbursement from the sponsor. HHS and SSA and confirm in the Federal Register that there are means-tested benefits administered by these agencies for which they can seek reimbursement (e.g., long-term Medicaid).
III Exclusion from U.S. as a “Public Charge”
According to the Immigration and Nationality Act, an alien may be denied admission to the US if the U.S. government (e.g., the U.S. consulate/embassy abroad) believes he/she is likely to become a “public charge” (i.e., “primarily dependent on the U.S. government for subsistence”). If the elderly immigrant is likely to be receiving public cash assistance for income maintenance or to be institutionalized for long-term care at U.S. government expense, he/she will be denied a visa to come to the U.S. If the elderly immigrant has not received assistance in the U.S. in the past, it is up to the reviewing officer to determine if, under the totality of the circumstances, the elderly immigrant may become a public charge.
In summary: U.S. policy does not favor the elderly or the ailing, even when they are citizens, let alone immigrants.
About the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
In general, each sponsor must complete and sign an affidavit of support, which is a contract between the sponsor and the government in which the sponsor promises to reimburse the government for certain government “means-tested” benefits (i.e., benefits based on income) received by the sponsored immigrant.
The affidavit of support is a legally enforceable contract that either the immigrant or the U.S. government can enforce against the sponsor for reimbursement of any means-tested benefit (such as Medicaid), but not later than 10 years after the immigrant last received the benefit. Current Immigration Service policy regarding federal “means-tested” benefits can be found in the Foreign Affairs Manual, the Federal Register, and the websites for USCIS, HHS, and SSA.
Here are some of the frequently-asked questions that would arise a scenario in which an elderly mother-in-law would be the beneficiary:
- How long after my mother-in-law gets her green card will it take for her to get Medi-Cal or Medicare?
- If she needs hospitalization or very expensive medical care, will my/my wife be responsible for the fees? Will they be able to go after our assets or salaries?
- Will she qualify for any social security or other financial help from the government?
Regarding Medi-Cal, Medicare, and Medicaid here are the general rules: The Medi-Cal Aged & Disabled Federal Poverty Level program requires that the elderly participant be over 65 years of age and have less than $2,000 in assets. This is a federal “means-tested” benefit because it depends in part on the income of the participant. There is also SSI-linked Medi-Cal for people with low income who are aged, blind, or disabled. Medicare is a federal program that is not “means-tested.”
In general, all persons 65 or older who have been legal residents of the U.S. for at least 5 years are eligible for Medicare. A person is eligible for Medicare if he/she or his/her spouse also worked for at least 10 years in Medicare-covered employment, and is a citizen or permanent resident of the United States. If the person is not yet 65, he/she might also qualify for coverage if he/she has a disability or with End-Stage Renal disease (permanent kidney failure requiring dialysis or transplant). However, since in most cases the elderly immigrant has never paid Medicare taxes for a minimum of 10 years and has not been a legal resident of the U.S. for at least 5 years, then he/she must pay the monthly premiums in order to be enrolled in Medicare.
There are some narrow exceptions to this general rule. Regarding Medicaid, there is a five-year ban on Medicaid benefits, so the elderly immigrant would not be eligible for Medicaid for the first 5 years he or she will be in the U.S. In general, the sponsor is responsible for reimbursement of "Federal means-tested benefits", which include Medicaid, welfare, and food stamps. Of the three, Medicaid is the benefit that is most applicable in the case of the elderly immigrant, because it is a low-income benefit that is used to pay for nursing homes for the elderly poor (unlike Medicare, which is not based on income, and is a health insurance program for the elderly).
Current Immigration policy is that Medicaid has to be reimbursed by the sponsor to the state or federal government, since the new affidavit of support covers both federal and state benefits. To summarize the above threshold points:
1. There are both federal and state benefits for the elderly and for the poor. Basically, “means-tested” benefits refers to benefits based on income. In general, the agency granting these benefits has the right to seek reimbursement from the sponsor of the immigrant who obtains these benefits (whether state or federal).
2. Regarding eligibility, there is a 5-year bar on certain federal benefits. This may not be the case for state and local programs. Therefore, the elderly immigrant could probably apply for any state and local programs at once, should their rules allow.
3. Key issues involve (1) eligibility, (2) reimbursement, and (3) inadmissibility as a “public charge”.
I Eligibility
The issue of eligibility for federal and state programs depends on the individual program. It is advisable to check with the city and county to see what they offer, and what their requirements are. Be sure to ascertain whether the program considers itself to be “means-tested”, and whether their policy is to seek reimbursement.
II Reimbursement
Title 8, Chapter 12, Section 1183a of the U.S. Code is the federal law that sets out the requirement that a sponsor reimburse the means-tested benefits received by the immigrant. It states: “Upon notification that a sponsored alien has received any means-tested public benefit, the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State shall request reimbursement by the sponsor in an amount which is equal to the unreimbursed costs of such benefit.”
The period of enforceability is either (a) the date of naturalization of the immigrant, (b) after such time as the immigrant has worked 40 qualifying quarters, or (c) death of the immigrant, plus other qualifying factors. In order for the agency supplying the means-tested benefit to claim reimbursement from the sponsor, the agency must have designated the program as such prior to the sponsor’s submission of the Affidavit of Support (form I-864), and the agency must actually request reimbursement from the sponsor. The Foreign Affairs manual leaves it up to the aid agencies to decide whether or not to designate itself as a means-tested program, and whether or not to seek reimbursement from the sponsor. HHS and SSA and confirm in the Federal Register that there are means-tested benefits administered by these agencies for which they can seek reimbursement (e.g., long-term Medicaid).
III Exclusion from U.S. as a “Public Charge”
According to the Immigration and Nationality Act, an alien may be denied admission to the US if the U.S. government (e.g., the U.S. consulate/embassy abroad) believes he/she is likely to become a “public charge” (i.e., “primarily dependent on the U.S. government for subsistence”). If the elderly immigrant is likely to be receiving public cash assistance for income maintenance or to be institutionalized for long-term care at U.S. government expense, he/she will be denied a visa to come to the U.S. If the elderly immigrant has not received assistance in the U.S. in the past, it is up to the reviewing officer to determine if, under the totality of the circumstances, the elderly immigrant may become a public charge.
In summary: U.S. policy does not favor the elderly or the ailing, even when they are citizens, let alone immigrants.
About the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
GOOD NEWS FOR IMMIGRATING CHILDREN OVER AGE 21
The Child Status Protection Act was enacted into law in 2002. Its purpose was to allow the children of immigrants who turned 21 while waiting for their visas to be processed to immigrate with their parents in many cases.
The courts have recently dealt with the issue of “automatic conversion”, which would allow the adult children of immigrants to use the same “priority date” as their parents.
“Priority date” refers to how long the green card application has been pending. For instance, if a petition was filed in January of 2001, then January 2001 is the “priority date”. Here is how “automatic conversion” to the child’s parent’s “priority date” would work:
Let’s say Mr. Smith is a U.S. citizen or lawful permanent resident. His sister lives overseas with her husband and a daughter. Mr. Smith is sponsoring his sister (Mrs. Jones), his sister’s husband (Mr. Jones), and his niece (Miss Jones). The niece was under 21 at the time Mr. Smith filed for his sister and her family. However, now that a visa is finally available for her parents, Miss Smith is over 21 years old. Under the old rule, Miss Smith would not have been able to immigrate with her parents. She would have to wait overseas while her parents petitioned for her in the U.S., which would take several years. Under the old rule, only the spouses and children under 21 could immigrate along with their sponsored relative. Relatives of a sponsored immigrant are referred to as “derivatives.” A “derivative” over age 21 was usually left behind when his or her parents immigrated to the U.S. Now, under the new rule that was created by court’s decision, Miss Jones can immigrate to the U.S. with her parents because she could be given credit for all the years that she waited with her parents for her green card.
In the recent case of De Osorio v. Mayorkas, the 9th Circuit Court expressed its hope that the U.S. Immigration Service would develop a procedure to deal with the “automatic conversion” of child immigrants who turn 21, so that these children may share in their parents’ “priority date” and immigrate with their parents. This would ensure that children are not penalized for the Immigration Service’s slow processing times. However, the Immigration Service may decide instead to appeal the De Osorio decision to the U.S. Supreme Court, which would delay any implementation of the automatic conversion for as long as it would take the U.S. Supreme Court to make its decision. The U.S. Supreme Court does not accept for consideration all the cases that are appealed to it. It can select the cases it wishes to decide. Also, there is only a limited time in which the Immigration Service can petition the U.S. Supreme Court to hear its appeal of the De Osorio case, and others like it from other jurisdictions. With luck, the U.S. Supreme Court will decline to hear the Immigration Service’s appeal, or the Immigration Service will not appeal at all. In either of these scenarios, the Immigration Service will be obligated to develop a process in a timely manner to implement the “automatic conversation” of “priority dates” so that recent immigrants to the U.S. may finally be reunited with their children.
About the author: Kathleen Lord-Black is a U.S. Immigration Lawyer. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
“Priority date” refers to how long the green card application has been pending. For instance, if a petition was filed in January of 2001, then January 2001 is the “priority date”. Here is how “automatic conversion” to the child’s parent’s “priority date” would work:
Let’s say Mr. Smith is a U.S. citizen or lawful permanent resident. His sister lives overseas with her husband and a daughter. Mr. Smith is sponsoring his sister (Mrs. Jones), his sister’s husband (Mr. Jones), and his niece (Miss Jones). The niece was under 21 at the time Mr. Smith filed for his sister and her family. However, now that a visa is finally available for her parents, Miss Smith is over 21 years old. Under the old rule, Miss Smith would not have been able to immigrate with her parents. She would have to wait overseas while her parents petitioned for her in the U.S., which would take several years. Under the old rule, only the spouses and children under 21 could immigrate along with their sponsored relative. Relatives of a sponsored immigrant are referred to as “derivatives.” A “derivative” over age 21 was usually left behind when his or her parents immigrated to the U.S. Now, under the new rule that was created by court’s decision, Miss Jones can immigrate to the U.S. with her parents because she could be given credit for all the years that she waited with her parents for her green card.
In the recent case of De Osorio v. Mayorkas, the 9th Circuit Court expressed its hope that the U.S. Immigration Service would develop a procedure to deal with the “automatic conversion” of child immigrants who turn 21, so that these children may share in their parents’ “priority date” and immigrate with their parents. This would ensure that children are not penalized for the Immigration Service’s slow processing times. However, the Immigration Service may decide instead to appeal the De Osorio decision to the U.S. Supreme Court, which would delay any implementation of the automatic conversion for as long as it would take the U.S. Supreme Court to make its decision. The U.S. Supreme Court does not accept for consideration all the cases that are appealed to it. It can select the cases it wishes to decide. Also, there is only a limited time in which the Immigration Service can petition the U.S. Supreme Court to hear its appeal of the De Osorio case, and others like it from other jurisdictions. With luck, the U.S. Supreme Court will decline to hear the Immigration Service’s appeal, or the Immigration Service will not appeal at all. In either of these scenarios, the Immigration Service will be obligated to develop a process in a timely manner to implement the “automatic conversation” of “priority dates” so that recent immigrants to the U.S. may finally be reunited with their children.
About the author: Kathleen Lord-Black is a U.S. Immigration Lawyer. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, past SEIU Union Rep, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
Thursday, February 25, 2010
Waivers and Inadmissibility
When a non-citizen is applying for a visa to visit the United States, he/she must be “admissible”. An admissible person has no conditions or characteristics which the U.S. government deems undesirable. Likewise, an “inadmissible” person falls into one of the categories of people that that the U.S. government seeks to exclude from entering the United States. These categories include people with various physical and mental disorders, people who have committed crimes, and people who have participated in activities the government deems subversive.
When a person who is seeking entrance into the United States, either on a permanent or temporary basis, falls into one of the categories of inadmissibility, he/she must either prove that inadmissibility does not apply in his/her case, or he/she must obtain a waiver (which is like a pardon). Waivers are not available for all the grounds of inadmissibility, as discussed below.
For instance, imagine a situation in which a man from Yemen (whose name is Fuad) comes to the United States as a visitor. He overstays his visa and remains in the United States for 2 years. Fuad then returns to Yemen to visit his family. He again wants to return to his second home in California, where he has a job and an apartment. When Fuad applies for a visitor’s visa at the consulate in Sanaa, he is refused. He has broken U.S. immigration laws by overstaying his visa. The consulate will not give Fuad a visa unless Fuad can prove that he is eligible for a waiver (a pardon) for violating U.S. immigration laws. How can he be eligible for a waiver? Unless Fuad has a wife or child in the United States who will suffer extreme hardship should Fuad not be allowed to return to the United States, Fuad will be denied a visa. In addition, since Fuad has been out of status for more than one year, unless he can obtain a waiver, he will be prevented from returning to the United States for 10 years.
The 1996 Immigration Reform law made many changes to the Immigration code. One of these changes is the “summary exclusion” law. This law empowers an immigration inspector at the airport to exclude and deport someone who is seeking admission to the U.S. without allowing the person the right to explain his/her case to an immigration judge. Under this law, if the inspector at the airport thinks a person seeking admission is making a misrepresentation about anything connected to his/her purpose in coming to the U.S., intent to return to his/her home country, or prior immigration history, the officer will exclude that person. Moreover, the person may not request entry for five years, unless a special waiver is granted.
Because of these harsh results, it is very important to understand the terms of your requested status (i.e., understand what you must need for the type of visa you are requesting). Never make any representations or use false documents.
If you are found by the officer to be inadmissible, you may request to withdraw your application to enter the U.S. in order to prevent having the five-year deportation order on your record. The immigration officer may allow you to do this in some cases.
Certain grounds for inadmissible cannot be overcome by a waiver. These grounds include (1) persons who have made false claims to U.S. citizenship, (2) persons who improperly obtain student status to attend a public elementary school or adult education program, or transfer from a private to a public program except as permitted, (3) persons who were previously deported and who subsequently attempt to enter the U.S. without permission, (4) stowaways, (5) draft evaders, (6) drug abusers or addicts, (7) drug traffickers, (8) spies and terrorists, etc.
As you can see, overcoming a ground of inadmissibility can be complicated. You will need to consult an experienced immigration attorney who will be able to analyze both the applicable immigration law and the maze of criminal laws that apply in a given case.
About the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
Marriage Bona Fides Checklist
In every marriage-to-foreigner case, the Immigration Service will be closely examining affidavits and other documents that may prove that the marriage was entered into in good faith, and not solely for immigration benefits. The below checklist will be useful in gather such evidence.
Evidence needed to prove good-faith marriage, per Matter of Laureano, 19 I&N Dec. 1 (1983), includes the following which must be in the names of both spouses:
1. insurance policies
2. tax returns
3. bank accounts, lease, utility bills, credit cards
4. correspondence from one spouse to another before marriage
5. photos of the couple before and after marriage, and at marriage ceremony
6. notarized letters or affidavits from family, friends, or acquaintances stating how they know the couple, how long they have known the couple, and whether they believe the marriage is a valid, good-faith marriage (sample letter below)
Name
Address
Phone Number
Date
To Whom it may Concern:
I have known (couples' names) since (date). I saw them as a couple before their marriage (when? where?)and know that they knew each other before their wedding. (If this is the case.) I have visited them at their home (or have been in contact with them since their wedding) and know that they have a home together and are sharing a life together. (State any other reason why you think the marriage is a real one.) I state under penalty of perjury that the above is true and correct.
Signature (notarized)
About the author: Kathleen Lord-Black is a U.S. Immigration Lawywer. Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
Evidence needed to prove good-faith marriage, per Matter of Laureano, 19 I&N Dec. 1 (1983), includes the following which must be in the names of both spouses:
1. insurance policies
2. tax returns
3. bank accounts, lease, utility bills, credit cards
4. correspondence from one spouse to another before marriage
5. photos of the couple before and after marriage, and at marriage ceremony
6. notarized letters or affidavits from family, friends, or acquaintances stating how they know the couple, how long they have known the couple, and whether they believe the marriage is a valid, good-faith marriage (sample letter below)
Name
Address
Phone Number
Date
To Whom it may Concern:
I have known (couples' names) since (date). I saw them as a couple before their marriage (when? where?)and know that they knew each other before their wedding. (If this is the case.) I have visited them at their home (or have been in contact with them since their wedding) and know that they have a home together and are sharing a life together. (State any other reason why you think the marriage is a real one.) I state under penalty of perjury that the above is true and correct.
Signature (notarized)
About the author: Kathleen Lord-Black is a U.S. Immigration Lawywer. Her offices are located in downtown Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
How to Prepare for Your Marriage Fraud Interview
This article concerns primarily marriage cases, i.e., those cases in which a United States citizen marries a foreign national, files all the necessary papers for sponsoring his/her foreign spouse, and has received an appointment for an interview.
The interview notice is usually sent by mail. Therefore, it is essential that Immigration have your current address. Federal mail is not forwarded, and your appointment notice may be returned to Immigration undelivered, resulting in denial of your application based on abandonment. The interview is called the marriage fraud interview. If the interview date is not convenient, you may write or call the number listed on the form to reschedule the interview.
At the interview, the Immigration officer will ask questions in order to determine whether your marriage appears to be a true marriage, and not for the purposes of obtaining immigration benefits. These questions may include (1) all the questions on the Form I-130 you had previously filed, (2) descriptions of the documentation submitted with the I-130 and other forms, and/or (3) questions about your marriage itself.
Questions about the marriage are designed to determine whether a normal and valid family life exists. The Immigration officer is looking for a traditional marriage, and traditional family values. A prenuptial agreement, for example, shows separateness of assets and separate lives. It may be detrimental to proving a normal and valid family life. The officers are looking for shared risks and responsibilities, not preservation of individual assets at anticipated divorce or separation.
Questions an officer may ask at a marriage fraud interview may include:
What does he/she like for breakfast?
Who makes breakfast in the morning? Who does the dishes?
What does his/her father like to do with his/her spare time?
When is the last time you spoke to your in-laws?
Who knows about your marriage?
Do both families know each other? Were they present at the marriage?
What is his/her favorite food?
When is his/her birthday?
The officer may separate you and ask each of you the same question to see if you both give the same answer. If you each answer the question differently, you should be given a chance to explain the differences in your answers when you are brought back together.
The Immigration officer may videotape or record the interview.
Beware of the penalties of marriage fraud, including prison and fines. Immigration marriage fraud interviewers are skilled at detecting fraud, and it is very difficult to pass the marital interview unless there is a verifiable personal relationship.
Good ways to document and verify the marriage include (1) putting utility bills and property in both your names, (2) keeping a joint bank account and joint credit cards, (2) have both of your names on your lease or mortgage, (3) subscribe to magazines or newspapers in both your names listed above your home address, and (4) have joint insurance policies for health, auto, and life.
In addition, sworn affidavits from friends and family can help prove that you have a valid marriage. These affidavits are simply letters describing your marriage that are signed before a notary and contain a declaration stating under penalty of perjury that the information in the letter is true and correct.
Photographs of you and your spouse together are also very important. You should document your life with your spouse in photographs from the time you first met, through your wedding day, and until your spouse is granted full permanent residency. Whether you have a big wedding or you elope, you must take pictures of your wedding day. Take pictures of you with your spouse, but also take pictures of the friends and family members who attended your wedding. Photographs of you with your spouse in your daily lives together with friends and family in different places at different times show that you have a personal relationship with your spouse and his/her family.
About the author: Kathleen Lord-Black is a U.S. immigration Lawyer. Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
How and When to Replace a Green Card
In the old days, a green card (also referred to as a Permanent Residency Card or I-551) was actually green, and had no expiration date. Now green cards expire every 10 years and must be replaced. This article will explain why both old and newer green cards that are about to expire should be replaced or renewed as soon as possible.
It is important to note that an expired green card does not mean that permanent residency status has expired. If, for instance, Customs and Border Patrol (CBP) encounters a person who has an expired 10-year green card at the border, they will furnish him/her with information on how to replace the green card, and will take no further action.
A green card is proof of permanent resident status in the United States, serves as valid identification, and serves as proof that an individual is eligible to live and be employed in the U.S. It is important to keep the green card up-to-date because, without a valid card, it may be difficult to prove permanent residency, and it may be affect an individual's ability to travel or prove eligibility to be employed in the U.S.
Green cards should be renewed as soon as possible because of pending rules promulgated by the United States Citizenship and Naturalization Service (USCIS) that are in the comment period until September 21, 2007. USCIS is seeking to require replacement of all of the older green cards that do not have expiration dates with cards that expire within 10 years. This will lead to an avalanche of applications and slower processing times. Those with expired cards (an estimated 750,000 filers) should apply early to beat the rush. USCIS itself, in its proposal, encourages early filing. Form I-90, which is the application to replace permanent resident card, is filed in order to renew or replace a green card. This form can be found on the Internet at www.uscis.gov. In many cases, the I-90 can be filed electronically on the USCIS website.
Be aware of Permanent Residency Cards that are valid for only two years. These are conditional Permanent Residency Cards and cannot be renewed. A conditional green card requires filing a petition to remove the conditions of permanent residency within 90 days of the expiration date of the conditional green card. This scenario occurs most often in marriage-to-foreigner cases in which the couple has been married for less than two years when their application is approved. The foreign spouse is initially given a conditional green card, with the advisement that a petition must be filed one year and nine months after the conditional green card has been issued. This creates a three-month window of time in which to file to remove the conditions of permanent residency. Both the foreign spouse and the sponsoring spouse sign the petition jointly.
In some cases, the parties divorce or the U.S. spouse simply refuses to cooperate. Then the foreign spouse must file for the permanent green card him/herself. However, the foreign spouse must first show one of the following three things:
1. That the couple have divorced, but their marriage was initially entered into in good faith; or
2. The deportation of the foreign spouse will cause the foreign spouse extreme hardship, greater than that suffered by most people who are deported; or
3. The foreign spouse was abused by his/her U.S.-citizen or green card-holding spouse
In addition, if the three-month window of time is missed, the foreign spouse will lose his/her permanent residency status and may find him/herself in front of an Immigration Judge in removal proceedings. Form I-751 is the Petition to Remove Conditions of Residence, and is found on the Internet on the USCIS website, www.uscis.gov.
If permanent residency status was based upon being an investor/entrepreneur, the individual must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Residency.
A green card needs to be replaced (not simply renewed) if it is ever lost, stolen, or damaged. Also, if a permanent resident obtained a green card before the age of 14, he/she is required to replace his/her green card after turning 14.
The filing fee for the I-90 (Application to Replace Permanent Residence Card) varies according to the reason for filing the card, and the age of the applicant. In general, the fee is now $290, plus a biometrics (fingerprint) fee of $80. Also be aware that there are a number of service centers where the I-190 can be filed, depending upon the reason for filing. An application sent to the wrong service center will be rejected, and will probably be returned to the sender at a much later date.
About the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
It is important to note that an expired green card does not mean that permanent residency status has expired. If, for instance, Customs and Border Patrol (CBP) encounters a person who has an expired 10-year green card at the border, they will furnish him/her with information on how to replace the green card, and will take no further action.
A green card is proof of permanent resident status in the United States, serves as valid identification, and serves as proof that an individual is eligible to live and be employed in the U.S. It is important to keep the green card up-to-date because, without a valid card, it may be difficult to prove permanent residency, and it may be affect an individual's ability to travel or prove eligibility to be employed in the U.S.
Green cards should be renewed as soon as possible because of pending rules promulgated by the United States Citizenship and Naturalization Service (USCIS) that are in the comment period until September 21, 2007. USCIS is seeking to require replacement of all of the older green cards that do not have expiration dates with cards that expire within 10 years. This will lead to an avalanche of applications and slower processing times. Those with expired cards (an estimated 750,000 filers) should apply early to beat the rush. USCIS itself, in its proposal, encourages early filing. Form I-90, which is the application to replace permanent resident card, is filed in order to renew or replace a green card. This form can be found on the Internet at www.uscis.gov. In many cases, the I-90 can be filed electronically on the USCIS website.
Be aware of Permanent Residency Cards that are valid for only two years. These are conditional Permanent Residency Cards and cannot be renewed. A conditional green card requires filing a petition to remove the conditions of permanent residency within 90 days of the expiration date of the conditional green card. This scenario occurs most often in marriage-to-foreigner cases in which the couple has been married for less than two years when their application is approved. The foreign spouse is initially given a conditional green card, with the advisement that a petition must be filed one year and nine months after the conditional green card has been issued. This creates a three-month window of time in which to file to remove the conditions of permanent residency. Both the foreign spouse and the sponsoring spouse sign the petition jointly.
In some cases, the parties divorce or the U.S. spouse simply refuses to cooperate. Then the foreign spouse must file for the permanent green card him/herself. However, the foreign spouse must first show one of the following three things:
1. That the couple have divorced, but their marriage was initially entered into in good faith; or
2. The deportation of the foreign spouse will cause the foreign spouse extreme hardship, greater than that suffered by most people who are deported; or
3. The foreign spouse was abused by his/her U.S.-citizen or green card-holding spouse
In addition, if the three-month window of time is missed, the foreign spouse will lose his/her permanent residency status and may find him/herself in front of an Immigration Judge in removal proceedings. Form I-751 is the Petition to Remove Conditions of Residence, and is found on the Internet on the USCIS website, www.uscis.gov.
If permanent residency status was based upon being an investor/entrepreneur, the individual must file Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Residency.
A green card needs to be replaced (not simply renewed) if it is ever lost, stolen, or damaged. Also, if a permanent resident obtained a green card before the age of 14, he/she is required to replace his/her green card after turning 14.
The filing fee for the I-90 (Application to Replace Permanent Residence Card) varies according to the reason for filing the card, and the age of the applicant. In general, the fee is now $290, plus a biometrics (fingerprint) fee of $80. Also be aware that there are a number of service centers where the I-190 can be filed, depending upon the reason for filing. An application sent to the wrong service center will be rejected, and will probably be returned to the sender at a much later date.
About the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices are located in Vancouver, British Columbia. She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
Subscribe to:
Posts (Atom)