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Marriage Based Citizenship: Red Flags At the Interview

May 1, 2014

Marriage Based Citizenship: Red Flags At the Interview

Author: US Immigration attorney Alena Shautsova

One of the ways to receive citizenship in the US is naturalization after the marriage to a US citizen. Prior to that, of course, a person has to become a permanent resident. However, the wait time for this particular category of applicants for naturalization is significantly lower: only three years, opposed to regular five years.

With that, however, the law requires to prove that the applicant for naturalization is still in vital marital union with the US citizen spouse. With the N-400 form, the applicant will have to produce not only copies of his green card and passport photos, but also evidence of bona fide marriage. By this time, the applicant will be producing this evidence for the third time pretty much: first when he/she was applying for conditional residence, then when he/she was applying for removal of the condition, and finally, when he/she would be applying for naturalization.

The evidence that should be produced are: copies of tax returns for the past 3 years; copies of utility bills; joint bank accounts; insurance policies; evidence of ownership of common property; birth certificates for common children.  One would think that birth certificates of children in marriage is the most significant proof of the strong marital union. However, surprisingly, USCIS still will require utility bills and joint bank accounts statements… The logic behind such requests is puzzling, but, unfortunately, non-compliance with the request may lead to  denial of the application.

One common pitfall that many applicants get caught at is failure to file joint tax returns. Another one would be having  different residence addresses. Lack of commingling of assets is another “strong” evidence against the vital marital union finding. Finally, failure to mention all the children, including step children, may also lead to  denial.

It is very common that an applicant had what he/she thought was a successful interview, but subsequently received a negative decision. That is why it is recommended that an applicant brings an attorney for the interview. If there is choice between paying attorney’s fees for the preparation of the application and for the interview attendance, choose an interview attendance. The mistakes on the application can be always corrected at the interview, but if something goes wrong at the interview, and there is no lawyer there to help, the case might get too lengthy and too expensive to deal with in the future.

 

 

 

I-94 electronic record

April 29, 2014

I-94 electronic record of admission

Author: New York Immigration lawyer Alena Shautsova

For a very long time the record of inspection and admission, I-94 form was issued on paper, and was the only proof of alien’s legal admission into the U.S. The form looked like a card, the paper used for it was white, and soon enough many practitioners started to refer to it as the “white card.”  Even though, the CBP, should maintain records of everybody who entered the country from a specific point in time, in practice, to restore someone’s I-94 if it got lost, is almost impossible if the information on form I-102 (form that is used to restore the lost I-94 card) does not match completely the CBP records and/or a copy of the admission stamp is not attached…

Recently, Department of Homeland Security decided to switch from paper to electronic record of all arrivals. Now, instead of paper I-94, a person’s information is recorded electronically. A person can (or should be able to ) retrieve information regarding his/her past travels from the CBP database using their website.

Unfortunately, sometimes the new system does not work. In this case, the website directs the person to go to the nearest CBP differed inspection office for help…

Here is the link to the website with questions and answers regarding the new I-94 process: https://i94.cbp.dhs.gov/I94/request.html

The bottom line that it is still a good practice to keep copies of your passport with travel admission stamps throughout your “immigration life” in the U.S. Store them both in paper form and electronically, and hold on to the old I-94 by all means!

 

Affidavit of Support Form I 864

April 25, 2014

Affidavit of Support Form I 864: what does it entail?

Author: Immigration attorney Alena Shautsova

Affidavit of Support Form I 864 must be filed in almost all cases of family based immigration. The law requires the intended immigrant to produce proof  that he or she will not become a public charge.

Usually, I-864 is filed by the person who is petitioning for the family member. However, when the petitioner’s income is not sufficient under the guidance (form I-864P), then a joint sponsor whose income is sufficient can help. In this case, however, the joint sponsor’s income by itself must be sufficient. It is not usually permissible to combine  incomes of the principal and  joint sponsors.

Many, however, a confused as to the obligations that stem from the signing of I-864 form. The form is actually a three way contract between the immigrant, the signing party and the US government. The agreement states that the signing party undertakes an obligation to provide support to the immigrant for the whole time while he or she is going to live in the U.S. in permanent resident status. The law lists five circumstances when the sponsor’s financial obligation terminates: (1) the sponsored immigrant becomes a citizen of the United States; (2) the sponsored immigrant has obtained forty (40) quarters of coverage under Title II of the Social Security Act; (3) the sponsored immigrant ceases to hold LPR status and departs the United States; (4) the sponsored immigrant becomes subject to removal but applies for and obtains a new grant of adjustment of status; or (5) the sponsored immigrant dies. Id. § 213a.2(e)(2)(i)(A)-(E). The Form I-864 presently makes explicit that “divorcedoes notterminate your obligations under this Form I-864.”

Further, this contractual obligation can be enforced in any State or Federal court. Very often it is being enforced in connection with divorce proceedings.  It is important to remember that obligations under the I-864 are separate from any obligations and restrictions that the couple might outline in prenuptial or post-nuptial agreements. See Toure-Davis v. Davis, MD Dist Court. 8:13-cv-00916-WGC.  As explained in the decision, a party seeking enforcement of the contract must submit an affidavit specifying failure to provide support for each year, and explaining how he or she was able to support herself/himself.

 

 

Troubles with Immigration 800 number

April 23, 2014

Author: New York Immigration Attorney  Alena Shautsova

Have you tried to access your Immigration  case information via 800- number (1-800-898-7180)  recently and got conflicting information or did not get through at all?

Do not worry: you are not the only one. EOIR alert that it is currently experiencing a systems outage involving several computer applications including eRegistration and the telephonic case information system (the 1-800 phone number). EOIR hopes to have the situation resolved in the near future!

How can you get your information in the meantime? Try calling local Immigration court, go there or contact your attorney!

US Supreme Court Rejects Arizona Appeal in Immigration Cases

April 23, 2014

The US Supreme court declined to review the ruling that barred police from arresting people who harbor those living in the United States illegally.

The provision was struck by the 9th Circuit  last year as an unnecessary one because there is Federal law imposing punishment for harboring illegal immigrants. If the State law provision was allowed, it would authorize the State police to enforce the law.

Read more:

http://abcnews.go.com/Politics/wireStory/court-hear-arizona-appeal-harboring-ban-23405416?utm_source=AILA+Mailing&utm_campaign=fa4213cde3-AILA8_4_22_14&utm_medium=email&utm_term=0_3c0e619096-fa4213cde3-290719465

 

Driver’s License for Undocumented Immigrants

April 21, 2014

Author: New York Immigration Lawyer Alena Shautsova

Driver’s License for Undocumented Immigrants

One of the problems that undocumented immigrants face in this country is that they cannot legally drive in the US: they do not possess necessary documents to receive state issued licenses.  The Real ID Act which demanded that the immigrants present certain documents verifying identity and immigration status before a driver’s license can be issued, placed millions of persons into disrepair: they choices became to either drive in violation of the laws and risk obtaining criminal convictions for which they can get deported; or not to drive at all and for many it would mean loss of significant income.  The activities opposing the Real ID Act created a website called Real Nightmare: http://www.realnightmare.org/

However, almost a decade later, more and more states came to conclusion that it is better and safer to issue license to immigrants than force them to find sometime not so legal solutions to the problem.

Recently, another U.S. territory : Washington D.C. announced that it will issue driver’s license to the undocumented for “limited purpose”:

“The Limited Purpose credential also requires a one-time validation of source documents when applying for your DC Limited Purpose driver license or identification card. The driver knowledge and road tests will be required for all applicants applying for the Limited Purpose driver license. First time DC applicants must be a resident of the District of Columbia for at least 6 months. Applicants must have never been issued a social security number, previously been issued a social security number but no longer eligible, or not be eligible for a social security number. The Limited Purpose driver license/identification card may not be used for official federal purposes, and it will be marked to reflect this requirement. You must schedule an appointment
to obtain a Limited Purpose credential. Prior to your DMV appointment for a Limited
Purpose driver license, be sure to study and review the Driver Manual in preparation for the knowledge test. If you fail the knowledge test, you will be required to make another appointment.”
So, to receive this document, a person would have to pass the road test and the theoretical portion of the test as well.   The DC DMV will accept foreign birth certificate and foreign passports as proof of identity! Here is the link to the DC DMV that explains the procedure and requirements: http://dmv.dc.gov/page/limited-purpose-credential

H1B Premium Processing Time

April 19, 2014

Author: New York Immigration lawyer Alena Shautsova

H1B Premium Processing Time

Many H1B applicants are nervous: the fees for premium processing were paid but they have not heard anything back form the USCIS. Should they think of other options? Should they want? Does it mean their applications were denied?

Actually, it is totally normal not to hear anything back by this time. USCIS will start adjudicating Premium Processing petitions beginning April 28, 2014.

While it is always good to have a back up plan, H1B processing right now is actually on track.

I-9 compliance : it is for everyone!

April 18, 2014

Author: New York Immigration Lawyer Alena Shautsova

I- 9 compliance I-9 is the form that should be filled by everyone who accepts employment in the United States. It is used by US government to determine if employers comply with prohibition on hiring people without work authorization. The form has to be filled out by the employee no later than the first day of employment; it is also has to be completed by the employer, no later than the third day of employment.

There is also something called E-verify: it is an electronic program which allows employers to confirm if an employee is allowed to work in the US. While it is not the electronic I-9, it does call for a lot of similar information. There are companies that must participate in E-verify, and there are companies and organizations that choose to do so. In any event, form I-9 still must be completed.

What is the importance of I-9 form? An employee should be aware that if he or she lies on the form regarding his or her Immigration status, it can be used by the DHS later: for example, an employee in hope to get a job may check off “citizen of the US” as a filed for employment eligibility. This conduct actually triggers permanently inadmissibility into the US, as somebody who claims to be a US citizen while he is not, cannot get legal in the US.

For employers: form I-9 compliance is being checked recently more and more often. The fines for violations of the form are thousands of dollars for one violation and also may cause charges of document fraud and discrimination.

The USCIS has pretty helpful resources on the topic: http://blog.uscis.gov/2014/04/whats-form-i-9-e-verify-who-new-videos.html

In addition,  you may use our website page to learn I-9 and E- verify basics: http://www.shautsova.com/immigration-usa/i-9-uscis-forms.html

Adjustment of Status for Family Members

April 2, 2014

Author: New York Immigration attorney

Adjustment of status for family members

Family based immigration is one of the most common ways of getting legal immigration status in the US.  Parents can sponsor their children, siblings can sponsor siblings and children can sponsor parents. Stepchildren can sponsor their parents, and so do parents: they are allowed to sponsor their stepchildren.

However, for each of the above situations there are its own limitations. The success of adjustment of status for a family member depends on the immigration status of the relatives, their age (in case of a children) and marital status.

The following family members cannot sponsor each other: uncles/ants and nephews and nieces; grandchildren and grandparents; cousins.

It is best if a person consults with an experienced immigration attorney before he or she starts the process of sponsoring. One of the most common misconceptions is that a U.S. citizen parent can sponsor his or her child who is in the United States even if the child lost his or her immigration status. This may work only if the child qualifies as an immediate family member of the sponsoring party. It means the child is under 21 years old at the time of the adjustment of status, or the child’s age froze when the parent “filed” for him and now the child is physically older, but for legal purposes the child is still under 21.

In all other situations, a child will not be able to get adjustment of status or green card while in the US, if he or she overstayed the immigration status.

Let’s say a mother filed for the child when he was 22 and back then she was a permanent resident. Now she is a US citizen, and the child is 28. The child entered the country as a B1/2 7 years ago and fell out of status. Now, the child’s priority date on I-130 filed by the mother is current. The child files for adjustment of status, and at the interview gets denial. The denial is justifiable because an adult son or daughter of the US citizen (See: Who is a Child for Immigration Purposes ) is not an immediate family member of the US citizen and the gap in his or her status cannot be forgiven to such a child, and the child’ application will be denied and this person can be placed in removal proceedings.

Different categories of family members can be viewed HERE: VISA BULLETIN

Applying for adjustment of status can be costly. Consult with an Immigration attorney before starting paperwork:  call us at 917-885-2261.

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

March 14, 2014

They Give it: They Can Take it Back: How DHS Can Take Your Passport Away

Author: Immigration attorney Alena Shautsova

There are two main ways a person may obtain US citizenship: by being born in the US or its territory and via naturalization. Naturalization is a process of conveying US citizenship on an individual who originally held a different citizenship or was a person with no citizenship at all.

It has been said that there is no distinction between US born citizens and those who received citizenship via naturalization. However, one major distinction between the two kinds of citizenship does exist:  the second kind can be taken away from an individual even if he or she has been in citizenship status for decades.

This happened to Hzim who originally received his citizenship in 1989. Even though for decades he held the title of US citizenship and traveled overseas, in 2011, the US Department of Homeland Security decided to “take back” his citizenship, saying that they made a mistake in 1989…

The mistake was that somebody in INS (Immigration and Naturalization Services (USCIS used to be called this way)) did not check all the requirements for Hazim’s naturalization and mistakenly believed Hazim’s father conveyed his citizenship to Hazim…. Even though there was no Hazim’s fault in it all, and even though he did not lie to the US government in any way, the Federal Court, 2nd District said it cannot stop Immigration authorities from taking Hazim’s citizenship away over twenty years later…

Of course, despite the fact that they are taking his citizenship away, Immigration promised Hazim that there are Other means of correcting the situation, but it seems that Hazim should not be the one paying for someone’s lack of qualification and expertise…

That is why it is strongly advisable that everybody who is applying for citizenship, consult with an Immigration attorney to make sure Hazim’s story would not repeat itself.