Author: immilawyernj

Marriage based visa petitions is one of the most common ways to obtain US immigration benefits. While a legitimate marriage is a straightforward way of getting legal immigration status, there are certain caveats to be kept in mind. The petitioner, a United States citizen, may confer immigration benefits through a Petition for an Alien Relative (Form 130) to the beneficiary spouse, through marriage. The immigration laws define marriage as two persons undertaking to establish a life together and assume certain duties and obligations. In contrast, a sham or fraudulent marriage is one in which the parties marry primarily for the purpose of obtaining the noncitizen spouse’s lawful permanent resident status. The petitioner bears the burden of proving that the couple married in good faith. Hence he/she must prove to the immigration officer that the parties married for the principal purpose of love or to establish a life together.

To determine the marriage’s bona fides, USCIS may examine the parties’ conduct both during and after the marriage in order to assess their intent at the time the marriage took place. This is typically done by both an extensive personal interview and by examining the documents which the couple has presented. These documents should show the couple’s intent to establish a life together. The relevant case law has indicated that the normal married couple has a fair amount in common. They typically share a language, religion and a cultural background. They live together and do things together, such as take vacations, celebrate important events, birthdays, and holidays, join clubs or gyms, support each other through medical problems, and most importantly have children. Typical couples also combine financial and other aspects of their lives after marriage. They demonstrate their trust in one another by sharing bank and credit card accounts and ownership of property, such as cars and houses. They spend time with each other’s families. The interview and the documents should reflect the couple’s knowledge of these various aspects of their marital life.

USCIS grills marriage-based immigration applicants for a longer and more detailed personal interview as compared to other applicants. If the couple has been married for less than two years, the beneficiary spouse will be subject to a two year conditional period, and will need to apply to remove these conditions prior to the expiration of their temporary status. That two year time period starts when their Conditional Green Card is approved or when they enter the U.S. on their immigrant visa.

Couples suspected of engaging in a sham marriage are subjected to an extensive interview. This is generally referred to as a Stokes interview. The parties are separated and are individually subjected to this intense interview often lasting about 2-3 hours. These are based on all aspects of their marital life, family relationships, finance and budget, religion, daily routines, job related questions and so on. If the government has a suspicion of marriage fraud, they can and often will refer these cases to the Fraud Investigation Unit of USCIS. This special unit of investigators frequently visits the couple’s home, talk to neighbors, friends, interview employers, and make a detailed finding based on their investigation. If the marriage is deemed to be a sham marriage or a fraudulent marriage the couple can be subjected to criminal and civil penalties. Furthermore, a finding of marriage fraud may also be a permanent bar to the foreign national’s ability to file future applications with USCIS.

The consequences of marriage fraud are very severe. The petitioner, or American born citizen and foreign spouse can face up to five years of imprisonment or no more than $250,000 in fines or both. You should be thoroughly prepared for your marriage based interview as the consequences and failure to prepare can be very detrimental.

We are sending this message to inform you about President Obama’s exciting new November 20, 2014 Executive Order. Three critical elements are:

Cracking Down on Illegal Immigration at the Border;Deporting Felons, Not Families; andAccountability—Criminal Background Checks and Taxes.

The President’s actions will also streamline legal immigration to boost the U.S.’s economy and promote naturalization for those who qualify.

As such, Immigration and Customs Enforcement (ICE) will no longer target innocent, hard-working families. More importantly, President Obama said that he would defer the deportation of the parents of children who are either U.S. citizens or legal residents, and that he would expand protection to “DREAMers,” or children who entered the country illegally without their parents. Those two groups will be allowed to get work authorization after passing a background check (you must not have a criminal record), and paying back taxes and a fee.

New and Improved DACA

Under the Executive Order, the age cap on DACA will be removed and the residence requirement has changed from June 15, 2007 to January 1, 2010. Also, DACA will be granted for a period of three years. This program should be up and running in 90 days.

Protection for Parents

Also under the Executive Order, parents of U.S. citizens and lawful permanent residents (of any age) may be granted deferral as long as they have been continuously present since January 1, 2010, pass a background check, and pay back taxes. This program should be up and running in 180 days and is also granted for a period of three years.

I-601A Waiver Expansion

Further, under the existing I-601A waiver program, only spouses and minor children of United States citizens are eligible to file for a provisional waiver. But now, spouses and minor children of lawful permanent residents (LPRs) may apply for a waiver as well. Please keep in mind that “extreme hardship” must still be proven.

Other Executive Actions

The President’s actions will also streamline immigration to boost our economy and promote naturalization by:

Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses. “Under the current system, employees with approved LPR applications often wait many years for their visas to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily. DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.” Reducing family separation for those awaiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the U.S. to attend visa interviews. Ensuring U.S. Citizens Can Serve. Because some branches of the military ban applicants who have undocumented family members, DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense. Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance permission (“parole”). Issuing a Presidential Memorandum on visa modernization. There will be a Presidential Memorandum directing the various immigration-related agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law. Issues such as whether derivatives should be counted towards the visa quota and whether past unused visa numbers can be recapture are expected to be included in this effort.

Relief May Be Available for You

Although President Obama has taken these much-needed steps, they are temporary, and only Congress can finish the job. By passing a comprehensive, bipartisan bill, Congress can replace these actions and fix the whole system.

If you believe that you are one of the over 4 million undocumented individuals who may be eligible for one of these forms of relief under the new Executive Order, we encourage you to contact our office for a consultation at 973-542-0200. Although it will not take effect until 2015, there are many preparatory steps that we can begin to take in the meantime.

As seen in the news, the dramatic increase in unaccompanied children entering the United States has presented a huge problem. Unaccompanied minors are children under the age of 21, usually from Central America, who cross the Mexico-U.S. border without a parent or guardian. They take the perilous journey in order to escape the danger back home and hope for a chance at a better life in the U.S. One possible form of relief by the U.S. government is Special Immigrant Juvenile Status (SIJS). SIJS is a temporary immigration benefit that provides a pathway to legal status for abused, neglected or abandoned minors, who meet certain statutory requirements. Children who get a Green Card through SIJS could work and live permanently in the U.S. However, they can never petition for a Green Card for their parents. They can only petition for a Green Card for their brothers and sisters when they become United States Citizens (U.S.C.s). To qualify for SIJS, a child victim must meet the following four requirements:

Be unmarried;Be under 21 years of age and under the jurisdiction of a juvenile court at the time of filing the SIJ petition;Be physically present in the U.S.; andHave an order from a juvenile court that makes the following three findings, explained below:

Family Reunification;Dependency/Custody; andBest Interests.

Family Reunification- A juvenile court judge must find that a child cannot reunite with one or both of his/her parents because of abuse, neglect, abandonment, or a similar basis, depending on state law. The abuse may have occurred in the U.S. or prior to the child’s arrival in the U.S.

Dependency/Custody- Next, the judge must declare the juvenile dependent on the court or legally commit the child under the custody of either an agency, department of a state, or an individual or entity appointed by a state or juvenile court. This is typically done through guardianship proceedings through a state court.

Best Interests- Lastly, the judge must also find that it would not be in the child’s best interest to be returned to his or her country of origin.

A SIJS applicant must file at least two USCIS forms in order to get an SIJ-based green card:

[Form I-360], Petition for Amerasian, Widow(er), or Special Immigrant [Form I-485], Application to Register Permanent Residence or Adjust Status.

Both forms can be filed together. Alternatively, the Form I-360 can be filed first while the applicant waits for a decision before filing the Form I-485.

If you would like to apply for SIJS or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.For more information,

please visit the USCIS website at: http://www.uscis.gov/green-card/special-immigrant-juveniles/special-immigrant-juveniles-sij-status.

An S non-immigrant visa (also known as an “S Visa”) is available for undocumented individuals who assist U.S. law enforcement in investigating and prosecuting crimes and terrorist activities.

There are 2 types of S visas: S-5 and S-6. A law enforcement agency (LEA) may specifically request S-5 or S-6 classification when an applicant intends to remain permanently in the U.S. The S visas are issued for 3 years and no extensions may be granted. Qualifying family members of the principal S non-immigrant may also be eligible for a Green Card (S-7 non-immigrant status).There are 200 S-5 visas available each year. To be eligible for an S-5 visa:

A person must be in possession of critical and reliable information about a criminal organization or enterprise;Be willing to supply, or has supplied, this information to federal or state authorities or the court; ANDThe Attorney General must determine that the person’s presence in the U.S. is essential to the success of an authorized criminal investigation or prosecution.

There are 50 S-6 visas available each year. To be eligible for an S-6 visa:

A person must be in possession of critical and reliable information about a terrorist organization, enterprise, or operation; Be willing to supply, or has supplied, this information to federal authorities or federal court; Will be, or has been, placed in danger as a result of proving information; AND The person is eligible to receive an award from the Department of State for providing the information.

The application process for a green card is a two-step process:

Step 1: File [Form I-854], Inter-agency Alien Witness and Informant Record.This must be completed by the federal or state law enforcement agency or U.S. Attorney’s Office that initially filed for the S non-immigrant status on behalf of the individual. The application must include the agency’s reasons for seeking the cooperation of the alien and it must also assume responsibility for the alien from their admission until departure.At this point, it is very important that you be honest with the agency representatives and disclose any possible grounds of inadmissibility; otherwise, failure to disclose may result in removal from the U.S.

Step 2: After [Form I-854] is approved, file [Form I-485], Application to Register Permanent Residence or Adjust Status. The green card application [Form I-485] requires you to submit supporting documentation which may include, but is not limited to:

Two passport-style photos[Form G-325A], Biographic Information, if you are between 14 and 79 years of ageA copy of your birth certificate[Form I-693], Report of Medical Exam and Vaccination RecordCopy of [Form I-94], Entry/Exit Record Copies of all of the pages of your passport (or if you do not have a passport, an explanation of why you do not have a passport)A list showing the dates of all arrivals and departures from the U.S. while you were in S non-immigrant status with an explanation for each departure of why you left the U.S.Proof of employmentIf you are filing for a green card as a derivative beneficiary of an S non-immigrant, you must give evidence of the relationship to the principal S non-immigrant witness or informant (such as birth certificate or marriage certificate)You must pay any applicable fees

If you feel that you may qualify for an S visa or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

For more information, please see the USCIS website at: http://www.uscis.gov/green-card/other-ways-get-green-card/green-card-informant-s-nonimmigrant.

The Child Status Protection Act (“CSPA”) provides relief to children [individuals who are unmarried and under the age of 21] who “age-out” as a result of delays by the U.S. Citizenship and Immigration Services (“USCIS”) in processing visa petitions and asylum and refugee applications. A child “ages-out” when s/he turns 21 and loses the preferential immigration treatment provided to children.

Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. However, Congress soon recognized that many beneficiaries were aging out because of large backlogs and processing times for visa petitions and designed CSPA to protect individuals in those situations. CSPA can protect “child” status for family-based immigrants, employment-based immigrants, and some humanitarian programs such as for refugees, asylees, and VAWA applicants.

The primary benefit of the CSPA is an age-preservation formula for calculating the age of a beneficiary of a preference visa petition. This formula allows certain beneficiaries to preserve their age as under 21 even if, chronologically, they are over 21. This way, a child can remain a beneficiary on a pending visa petition despite having aged-out.

In order to be eligible for CSPA:

A person must be the beneficiary of a pending or approved visa petition on or after August 6, 2002.The beneficiary must not have had a final decision on an application for adjustment of status or an immigrant visa before August 6, 2002.The individual must “seek to acquire” permanent residence within 1 year of a visa becoming available. The date of visa availability is the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever was later.

NOTE: “Seek to acquire” means having a USCIS Application for Action on an Approved Application or Petition [Form I-824] filed on behalf of the child; the filing of an Application to Register Permanent Residence or Adjust Status [Form I-485]; or submit an Application for Immigrant Visa and Alien Registration from the Department of State [Form DS-230].

For more information, please visit the USCIS website at: http://www.uscis.gov/sites/default/files/files/nativedocuments/PM-602-0094_Family-Based_Priority_Date_Retention_Final_Memo.pdf

If you have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

A child born outside the U.S. may become a US Citizen (USC) as a matter of law by virtue of his or her parent or parents’ birth or naturalization.

The Immigration and Nationality Act (INA) grants U.S. citizenship at birth based on:

(1) Birth in the U.S. or certain other places;

(2) The citizenship of one or both parents; and

(3) A combination of location and parental citizenship.

U.S. citizenship is also granted to persons after their birth based on a combination of parental citizenship and later residence and by naturalization. U.S. noncitizen national status is granted based on the birth location in certain other places, and the U.S. national status of one or both parents.

There are two general ways to obtain citizenship through parents, one at birth and one after birth but before the age of 18:

1. A child born outside the U.S. is a citizen at birth if both parents were U.S. citizens at the time of birth, AND the parents were married at the time of birth and at least one parent lived in the U.S. or its territories prior to the birth.

2. A child born outside the U.S. is a citizen at birth if one parent is a U.S. citizen at the time of birth and the birth date is on or after November 14, 1986 AND the parents were married at the time of birth and the U.S. citizen parent had been physically present in the U.S. or its territories for a period of at least five years at some time in his or her life prior to the birth, of which at least two years were after his or her 14th birthday. If the U.S. citizen parent spent some time abroad in any one of the following three capacities, these can also be counted towards the physical presence requirement:

Employed with the U.S. Government;Serving honorably in the U.S. Armed Forces; orEmployed with certain international organizations.

Additionally, time spent abroad by the U.S. citizen parent while the U.S. citizen parent was the unmarried son or daughter and a member of the household of a person who meets any one of the three conditions above can also be counted.

Example 1: A child born outside the U.S. is a citizen after birth if the child was under 18 or not yet born on February 27, 2001 AND at least one parent is a U.S. citizen, the child is currently under 18 and residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to lawful admission for permanent residence.

Example 2: A child born outside the U.S. is a citizen after birth if the child was under 18 from December 24, 1952 to February 26, 2001 AND the child was residing as a Green Card holder in the U.S. and both parents naturalized before the child’s 18th birthday; OR

If one parent died, and the surviving parent naturalized before the child turned 18.

If the parents legally separated, and the parent maintaining legal and physical custody naturalized before the child turned 18.

If the child was born out of wedlock and paternity has not been established by legitimation, the mother naturalized before the child turned 18.

For more information, please visit the USCIS website at: http://www.uscis.gov/us-citizenship/citizenship-through-parents.

If any of these situations apply, you may contact your nearest United States Consular Office or visit the Department of State website: http://travel.state.gov/content/passports/english/abroad/events-and-records/birth.html to find out what are the requisite applications forms necessary for apply for a United States passport for your child.

There are many scenarios in which the U. S. Citizenship through parents can be granted. Anyone who believes s/he is eligible for derivative citizenship is advised to contact our highly-experienced immigration attorney to gain clarity on the issues and to ensure that the proper filing procedures are followed for a successful citizenship.

The Violence against Women Act, or VAWA, allows an abused spouse or child of a U.S. Citizen or Lawful Permanent Resident, or an abused parent of U.S. Citizen to self-petition for lawful status in the United States, receive employment authorization and access public benefits. VAWA provides survivors of domestic violence with the means that are essential to seek safety and independence from their abuser, who is not notified about the filing. This is also known as a SELF PETITION.

You may be eligible to file for VAWA if you fit into one of the following categories:

Spouse:

You are married to a U.S. Citizen or permanent resident abuser; orYour marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition; orYour spouse lost or renounced citizenship or permanent resident status within the 2 years prior to your filing your petition due to an incident of domestic violence; orYou believed that you were legally married to your abusive U.S. Citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.You have suffered extreme cruelty/battery by your U.S. Citizen or permanent residence spouse; orYour child has been subjected to battery or extreme cruelty by your U.S. Citizen or permanent resident spouse.You entered into the marriage in good faith, not solely for immigration benefits.You have resided with your spouse.You are a person of good moral character.

Parent:

You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed; orYou are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence; orYou are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition.You have suffered battery or extreme cruelty by your U.S. citizen son or daughter.You have resided with the abusive son or daughter.You are a person of good moral character.

Child:

You are the unmarried child under the age of 21 of a U.S. citizen or permanent resident abuser; orYou are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence.You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent.You have resided with your abusive parent.You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.

To begin the process, you must complete the [Form I-360], Petition for Amerasian, Widow(er), or Special Immigrant, including all supporting documentation. If you have an approved [Form I-360], you may be eligible for a plethora of benefits, including work authorization, public benefits, and even be eligible to file for a green card.

For more information, please visit the USCIS website at: http://www.uscis.gov/humanitarian/battered-spouse-children-parents.

If you would like to begin the process for a VAWA petition or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney.

On November 15, 2013, USCIS issued a policy memorandum entitled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act §212(a)(6)(A)(i).”[1]This memorandum addresses a possible path to citizenship for immediate relatives[2]of U.S. citizen members of the U.S. military, who are presently in the U.S. and have entered unlawfully. The administration has applied the memorandum broadly,extending it to all active-duty members of the armed forces, to reservists including the National Guard, and to all veterans. Their spouses, children and parents will be eligible for a “parole in place” or “PIP,” which allows those who are already qualified for a green card based on this close family relationship to adjust status without leaving the U.S., despite their past illegal entry and stay.

Under INA 245(a), a person cannot adjust status unless s/he has been “admitted or paroled” into the U.S. Usually, a person who has not been “admitted or paroled” into the U.S. cannot obtain lawful permanent residence unless s/he leaves the U.S. to collect visas they applied for through marriage to an American citizen or some other family relationship; however, the person will most likely face a 3-year or 10-year inadmissibility bar that is triggered by exiting the U.S. PIP is an attempt to avoid the separation of military families by allowing some family members to adjust status inside the U.S. Under this policy, those immigrants who are in military families will not have to leave to complete their visa applications.

In order to request parole, the alien must submit to the director of the USCIS office with jurisdiction over the alien’s place of residence:

A completed Form I-131, Application for Travel Document[3];

Evidence of a family relationship with one of the following: – An Active Duty member of the U.S. Armed Forces; – A current member of the Selected Reserve of the Ready Reserve, or; – Someone who has previously served in the U.S.Armed Forces or the Selected Reserve of the Ready Reserve (which must be proven through documentation such as a photocopy of both the front and back of the service member’s military identification card (DD Form 1173));Two identical, color, passport style photographs; andEvidence of any additional favorable discretionary factors that the requester wishes considered.Once you have obtained PIP approval, you can now proceed with filing a visa petition (signed by the U.S. citizen) and adjustment of status application, all at the same time.

NOTE: Please keep in mind that anyone with a criminal conviction or other “serious adverse factors” will not be granted PIP. Also, PIP is discretionary and decided on a case-by-case basis, which means that immigration authorities do not have to grant PIP if they feel that you are not eligible.

If you would like to apply for PIP or have further inquiries, please feel free to contact our office to schedule a consultation with our highly experienced immigration attorney and we would be happy to assist.

In September 2012, USCIS began deferring action for childhood arrivals and issuing employment authorization for two years. However, in September 2014, the initial two-year grants are due to expire, and USCIS is in the process of preparing renewal applications in which eligible individuals can request and receive an extension of their deferred action without lapsing in their lawful presence or employment authorization. USCIS plans to announce the details of the final process in late May 2014.

By way of background, on June 15, 2012, the DHS began accepting DACA requests, which is a form of administrative relief given to a person with unlawful immigration status that grants them temporary protection from deportation if they can prove that they fulfill certain criteria. [Please see January 15, 2014 DACA blog on our site for more information on the specific DACA requirements].

If you wish to renew your deferred action for another two-year period, you must submit [Form I-821D], Consideration of Deferred Action for Childhood Arrival to USCIS. However, you must submit the revised [Form I-821D], which is forthcoming, since it is currently being drafted and is unavailable for use at this time. USCIS will not accept renewal filings until the new version of the form is published in May 2014. This form must be accompanied with [Form I-765], Application for Employment Authorization and [Form I-765WS].

If your previous period of deferred action expires before you receive a renewal of deferred action under DACA, you will accrue unlawful presence and will not be authorized to work for any time between the periods of deferred action. Because of this, USCIS encourages that you submit your renewal 120 days before your current period of deferred action under DACA expires. While USCIS will continue to accept filings after this date, it will not accept renewals made earlier than 150 days before that expiration date.

As with your initial DACA application, USCIS will review your request to determine whether the exercise of prosecutorial discretion is appropriate in your case. However, USCIS reviews applications on a case-by-case basis, and its decisions are unreviewable. You only need to submit new documents pertaining to removal proceedings or criminal history that you have not already submitted, meaning that you would not have to re-submit documents that you have already included with your previous DACA request that has been approved.

For more information, please contact our office for a consultation or visit the USCIS website at: http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process/ice-granted-daca-renewal-guidance