Articles Posted in Family Immigration Visas and Green Cards

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President Obama is scheduled to announce his plan for Executive Action on immigration tonight at 5pm PST. Most of the networks will NOT be carrying his speech. However, CNN, MSNBC, Telemundo and Univision among others will, although this could change later today. If you miss it, the White House will have a recording here. Most of the controversy between the Democrats and Republicans is over what to do with the millions of people living in the US without legal papers. However, Executive Action will hopefully also encompass some administrative fixes to the legal immigration system, both for family and business immigration. President Obama is also predicted to make some changes to enforcement and border security, which could mean more deportations and problems for certain classes of undocumented immigrants as well as for those trying to get to the US without proper papers.

Relief for more of the undocumented? Things to consider.

Whatever relief President Obama offers to a wider group of undocumented immigrants, people should be aware of these important points:

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I previously posted two articles about the American immigration Lawyers Association‘s (AILA) letter to President Obama recommending administrative or Executive Action to fix the nation’s immigration laws due to inaction by Congress. Here, I want to add some more ideas that could be accomplished by Executive Action that do not require an Act of Congress. By way of review, in my prior post, Executive Action – Business Immigration Fixes Needed, I discussed the recommendations made by AILA including:

  • Create Better Pathways for Immigrant Entrepreneurs
  • Amend the definition of “related or affiliated” for H-1B cap exempt purposes
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This blog posts follows up to an earlier post, Executive Action – Business Immigration Fixes Needed, discussing the American Immigration Lawyers Association (AILA) letter to President Obama of August 6, 2014 requesting Executive Action. AILA recommended additional fixes to family immigration, prosecutorial discretion and enforcement related issues that could be achieved administratively in the face of Congressional inaction on statutory changes.

AILA states that “the guiding principle for administrative actions should be to advance our national interest, which includes: supporting family unity, promoting economic growth, and improving processes.”

Expand Deferred Action.

AILA advocates expanding the 2012 Deferred Action for Childhood Arrivals (DACA) program to a wider group including:

  • Parents of U.S. citizens;
  • Parents of DACA-eligible individuals; and
  • Individuals who have resided in the U.S. for three years or more.

Further, DACA should include work authorization, as in the present DACA program, but USCIS should tweak the requirement for advance parole (a travel document) to be based on a wider range of travel needs beyond just “emergent circumstances.”

As a reminder, deferred action is NOT “amnesty; it is NOT a visa; it is NOT a green card or citizenship. It is a temporary fix given in two-year increments prohibiting deportation of individuals who are out of status until Congress gets around to more fundamental statutory changes for this population.

Do Not Count Derivatives Toward the Overall Visa Quotas.

This was mentioned in the business immigration context in the prior post, Executive Action – Business Immigration Fixes Needed. By not counting derivative spouses and children (single and under 21), more visas would be freed up for principals stuck in family based quotas (every category/every country) that could result in shorter backlogs.

Expand the Use of Parole-in-Place (PIP).

Section 212(d)(5) of the INA provides the Secretary of Homeland Security with the authority to parole into the U.S. temporarily, under such conditions as he or she may prescribe, on a case-by-case basis, for urgent humanitarian reasons, or significant public benefit, any alien applying for admission to the United States. Parole is like a legal fiction – the body is here, the status is not of nonimmigrant, permanent resident or US citizen, but the person is here with a defined permission under the circumstances above. Parole is very important as it is one of the grounds besides a formal admission in which someone can complete their green card process in the USA called “adjustment of status.” Right now, most people who entered illegally cannot file for adjustment and must instead consular process their green card application, whether business or family based. Leaving U.S. to go to the consulate then triggers the 3 or 10-year bar to readmission, thus requiring a waiver of inadmissibility and further delaying the case. A grant of parole in place would allow a person to avoid consular processing and the waiver in most cases. And it would be useful for those who do not have qualifying members for the waiver nor proof of extreme hardship. (See below.)

Currently, USCIS only uses PIP for family members of active duty and veteran military personnel. But, AILA advocates that its use be expanded to other non-military related individuals with US citizen or permanent resident parents, children or spouses.
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March 31, 2014 is the deadline to reopen I-130 visa petitions that were denied by USCIS prior to the US Supreme Court’s ruling in the United States v. Windsor case in June 2013. Specifically, the petition must have been denied based on Section 3 of the Defense of Marriage Act (DOMA) that the US Supreme Court held to be unconstitutional. Many of these cases were reopened by USCIS on its own. But, if you haven’t heard directly from them already, it is important to make contact with the agency either directly or through your attorney before March 31, 2014.

USCIS states the following in its FAQs.

Q5. My Form I-130, or other petition or application, was previously denied solely because of DOMA. What should I do?

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On January 14, 2014, the US State Department (DOS) announced a new policy change (that will also be followed by the US Department of Homeland Security (DHS)) regarding immigration status of children born abroad through Assisted Reproductive Technology (ART). This is an important change for family immigration benefits that reflects the government’s acknowledgment – finally – that families are created in more high-tech and socially different ways in the 21st century. In addition, ART affects transmission of US citizenship, determined by DOS and described further below. The sections below deal with situations involving whether a child is born in or out of wedlock or is legitimated. These are all in addition to the ways child status through adoption or marriage (step-children) impacts immigration status, which is not discussed here.

Specifically, for immigration purposes, i.e., sponsorship, DOS stated that:

The previous policy required that a mother have a genetic connection to a child in order to qualify as a parent for the purpose of obtaining immigration benefits. Under the new policy, birth mothers (gestational mothers) who are also the legal parent of the child will be treated the same as genetic mothers for the purposes of immigration benefits.

The definition of “child” will now include the child of a genetic or gestational parent who is also a legal parent at the time of the child’s birth. Under the new interpretation, INA Section 101(b) (8 U.S.C. Section 1101(b)) treats a child as being born “in wedlock” under INA Section 101(b)(1)(A) when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child at the time and place of birth.

A “child legitimated” and a “legitimating parent or parents” in INA Section 101(b)(1)(C) includes a gestational mother who is also the legal mother of the child. The term “natural mother” in INA Section 101(b)(1)(D) includes a gestational mother who is the legal mother of a child at the time and place of birth, as well as a genetic mother who is a legal mother of the child at the time and place of birth.

The new policy will be retroactive. There will be cases in which children born abroad to a gestational and legal mother were previously denied an immigration benefit under the prior interpretation. In such cases, parent(s) must submit a new application for their child, if they wish to re-apply. The application must include sufficient evidence demonstrating that they meet all relevant statutory and regulatory requirements as well all appropriate fees.

For transmission of US citizenship, things become more complicated since there must be a biological connection to one or both parents claiming to transmit citizenship. Thus, DNA testing plays a much more critical role, but it can only be done after the child is born. DOS recommends exercising caution in the process because it cannot pre-adjudicate citizenship status (either for Consular Reports of Birth Abroad or US passports) prior to the child’s birth.
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USCIS has announced that it will provide certain relief for Filipino victims of Typhoon Hiyan that struck the Philippines on November 8, 2013. Many people were hoping that the Attorney General would declare the Philippines eligible for Temporary Protected Status (TPS) treatment authorizing those Filipinos in the US as of November 8, 2013 to apply for a special status and work authorization as has been done historically for other countries such as Somalia, El Salvador, Haiti and Syria, among others after environmental calamities or civil war. Instead, USCIS is using existing law and procedures to deal with Filipino immigration cases, such as they did following the Japanese Tsunami, allowing applicants:

-A change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;

-An extension of certain grants of parole made by USCIS;

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USCIS has finally released a long awaited policy memo about “Parole in Place” or PIP. PIP is a procedure that permits qualifying family members who entered the U.S. without inspection (EWI), who ordinarily would need to leave the US to process a family based green card abroad, to be able to apply for green cards (adjustment of status) in the U.S., provided USCIS agrees to “parole” the individual. At this Seattle immigration law firm, we have worked on these cases before, and have found the experience helping our military service members to keep their families together quite rewarding.

The general rule is that to apply for adjustment of status in the US, the applicant must have been “inspected and admitted or paroled.” Admission occurs when a foreign national presents a passport with a visa (or no visa if from a visa exempt country) to a US Customs and Border Protection officer (CBP) at a port of entry. The individual is thereby “inspected and admitted” if allowed to proceed into the USA. There are some limited additional “admissions” scenarios for some wave-through type cases, but even these still require that the individual is presented for inspection and is deemed admitted.

Parole is a legal fiction that permits an individual seeking admission at a port of entry to be legally allowed into the US without having been deemed admitted. In other words, the person is deemed still requesting admission or “arriving”, but is given a legal status called parole without having been formally admitted. Thus, ability for a person who entered EWI to get PIP can be extremely advantageous enabling the individual to apply for adjustment of status rather than consular processing a case. For many individuals who entered EWI, they would otherwise be subject to a three or 10-year bar to return and would need a waiver to re-enter earlier than that.

The US Defense Department (DOD) views the troops’ morale and military readiness to be a significant and highly important objective of military preparedness. This includes ensuring that troops are as emotionally prepared and are as stress free as possible so they can focus on their service related jobs. The purpose of PIP is “to minimize periods of family separation, and to facilitate adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.” Servicemen and women, who have family issues such as the threat of deportation to family members, can be extremely stressed out and can suffer from various hardships that impact their military preparedness.

Until the new PIP memo issued on November 15, 2013, (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)), adjudication of PIP requests varied around the country. Some local district USCIS offices did not acknowledge PIP at all; many offices had different procedures and outcomes; offices varied as to applicability to active duty versus veterans, and active duty versus Ready Reserves service. The new memo now provides some continuity of policy for all districts to follow. (However, policy memos technically do not have the force of law. Further, the government tends to rely on policy memos when it wants to and ignores them at other times.) The PIP policy memo also reflects President Obama’s practice of using policies and regulations to fix important immigration issues within the bounds of existing statutory rules where Congress has failed to reform immigration laws.
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This blog post discusses my personal reflections about the impact of the fall of DOMA on same sex couples from an immigration lawyer’s perspective. I have interviewed and represented numerous same sex couples in the first quarter since the U.S. Supreme Court ruled in June 2013 that section 3 of the Defense of Marriage Act (DOMA) impermissibly violated the equal protection clause of the U.S. Constitution. In U.S. v. Windsor, the Court required the federal government to recognize same-sex marriages in over 1000 laws, including immigration provisions. Since the Windsor case was decided, the Board of Immigration Appeals, in Matter of Zeleniak, confirmed that immigration law recognizes the law of the place where the marriage takes place, allowing same-sex couples to benefit from fiance(e), marriage and derivative visas, waivers, cancellation of removal, and other spouse-based benefits in immigration law. In addition, USCIS has added more FAQs on the subject, and the American Immigration Council, in cooperation with Immigration Equality, has issued a practice advisory for lawyers. Literally, within minutes of the Court’s decision, our office was inundated with calls. From this Seattle immigration lawyer’s perspective, it has been the most interesting time in my law practice in decades. For the first time in ages, it is very rewarding that a new benefit is available that can help a lot of people. And it fosters keeping families together. Below, I divide my observations into several themes about the kinds of issues same sex couples are facing.

Each of the many couples with whom I have spoken with have very different fact patterns. Therefore, it is impossible to describe trends in very broad strokes. However, that reinforces my long standing opinion that couples should seek quality legal advice before filing applications, whether they do it themselves or with counsel. Why? Because every case is different and demands a customized strategy, since there is no one-size-fits-all solution for everyone. Couples are often surprised to learn that just because immigration law now recognizes same sex marriage if legal in the jurisdiction where it took place, it does not guarantee that the path to a green card and citizenship will be easy, fast, recommended or available at all. Well, welcome to the real world of immigration law! Now same-sex couples get to face the same issues, complications, and bureaucracy that heterosexual couples have always experienced. Our laws are complex, procedures are often slow, mind-boggling, and/or frustrating. Below, I break down the broad themes I’ve seen by whether couples are living abroad together, living bi-nationally, or living in the U.S. together. The focus of this blog post is on marriage and fiance(e) visas between U.S. citizens and foreign nationals. In upcoming posts, I will address foreign nationals married to permanent residents, and dual foreign nationals needing principal or derivative nonimmigrant or permanent visas.

Couples Living Abroad

1. Can the couple marry where they are?

If not, we are looking at the K-1 fiance(e) visa alternative, or ability to travel to third countries with marriage equality laws that preferably do not have residency requirements to marry. Immigration Equality has a good website FAQ on U.S. states and foreign countries that permit same sex marriage, Where Can We Marry? If going to a third country, can the couple get visas to go there to marry or to reside long enough to meet residency and consular jurisdiction requirements, if any? We are also looking at alternative visa options (work visas, other family sponsorships, or other programs). In some very narrow situations, some couples with stable jobs or businesses abroad may come to the US and marry, and then leave the US to complete consular processing. This requires very careful planning to assure that there will not be any false representations made to the border agents.

2. Are there children involved?

It is very important to evaluate whether a couple will immigrate with children because of age-out issues. To immigrate as a child of a US citizen or with the spouse of a US citizen, the child must be under 21 and unmarried. This will entail evaluating whether children can qualify as step-children if the marriage takes place before they are 18, or if they are older, using the fiance(e) category instead to preserve their age to 21. In the latter case, the children would immigrate as derivatives (K-2) of the principal fiance(e) K-1. Fiance(e) visas are more involved and costly because once the fiance(e) arrives in the U.S., the couple must marry within 90 days and then proceed to file a green card application based on that marriage. I expect that as time goes on, we will see more complicated family law issues depending upon how the couple’s children joined the family. In addition, there may be issues involving the Child Status Protection Act to preserve age, among others issues such as adoptions, surrogate children and more.

3. Is the U.S. citizen “domiciled” in the U.S.?

For affidavit of support purposes, required for marriage based cases, the U.S. citizen must be willing and able to take “concrete steps” to resume domicile in the U.S. on or before the foreign national’s immigration to the U.S. Surprisingly, there are many U.S. citizens living “in exile” abroad because until the WIndsor case, there was no U.S. spousal immigration option for living with a same sex spouse in the U.S. if the foreign national could not get a visa. Thus, many U.S. citizens have built lives for themselves abroad, including running businesses overseas.
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The US State Department has announced the start of registration for the DV-2015 Visa Lottery program. Visas will be available for processing between October 1, 2014 through September 30, 2015. This means that all selected applicants must receive their visas no later than September 30, 2015. This Diversity Visa Lottery allocates up to 50,000 visas to individuals and their dependents from countries with low immigration rates to the US. The registration process will begin October 1, 2013 at noon EST and will end on November 2, 2013 at noon EST. Registration is done electronically (“E-DV”) at (Note, if you go online to this site prior to October 1, 2013, you will only see information for the most recent lottery already held for DV-2014, not the upcoming DV-2015 mentioned above.) If rejected in the lottery, applicants will not be notified. However, applicants can begin checking status to see if selected beginning May 1, 2014 by logging onto the site above. Selected winners of the lottery will be notified by the US State Department via email.

Ineligible Countries And Exceptions

For DV-2015, applicants must have been be born in any country EXCEPT the following countries: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, the Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, the United Kingdom (excluding Northern Ireland) and its dependent territories, and Vietnam. (Nigeria is newly added to the exceptions list from years past). Hong Kong, Macau, and Taiwan remain eligible.

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Today, USCIS announced two FAQs on implementation of immigration procedures for same sex marriage couples. The first one is pretty basic in that I130 visa petitions can be filed now for spouses of US citizens and green card holders. The second FAQ is rather wishy washy about cases where couples are lawfully married in a state that authorizes same sex marriages but where the couple lives in a state that does not recognize such marriages. There, USCIS says that petitions can still be filed but that there could be some exceptions, none of which are defined. I understand from Immigration Equality that they have asked USCIS to clarify their position. Generally, US immigration law honors the law of the place where a marriage takes place or is celebrated. Stay tuned for further clarifications.

I know that I keep harping on this in every post, but understand that just because a couple can marry, marriage alone does not convert a person to lawful status. In addition, a marriage does not guarantee that the person is otherwise eligible to immigrate temporarily or permanently. Nor is a marriage case necessarily the most expedient method of immigration to the US compared to some other visa categories. And, finally, pursuing a green card, known as permanent residence, means an intent to take up residence and living in the US on a permanent basis. Therefore, green cards may not be the best goal if there is no intent to spend most of the time in the USA. By contrast, pursuing a green card can also conflict with the required intent to live permanently abroad if using the Visa Waiver program (WT/WB), tourist, student and some other visas requiring nonimmigrant intent. Making false statements on a visa application or to a border or consular officer can create many problems down the road. A careful evaluation of your case with an experienced immigration attorney is highly recommended.