Month: September 2018

Published on the World Journal Weekly on September 30, 2018 1. U. S. Citizen with Overseas Business Wants to Sponsor Mother for Permanent Residence – Problems? 2. Just Got Green Card From Marriage, Want to Sponsor 20-year-old Son in U. S., But Any Problems With His F-1 Visa? 3. Came as K-1 Fiancé, Did not Marry, Now Married to Another U. S. Citizen with 2 Children – Can I Adjust Status to Permanent Residence Through My Wife’s Petition? 4. Problem with the In-laws and We Got Divorced – Can I Still Get My Permanent Green Card?

1. U. S. Citizen with Overseas Business Wants to Sponsor Mother for Permanent Residence – Problems?

I became a U. S. citizen in 1996 and have spent most of the last 10 years in Taiwan conducting a successful professional business. My mother (80 years old) now wants to immigrate to the U. S. to join my brother and sister. Our father passed away 5 years ago. My brother and sister only have green cards, and so I would have to be the one to petition. Can I do that without problems?

Dear reader,
There are no confines on the length of time that a U. S. citizen can be outside the United States. That being said, the immigration laws do require that you demonstrate domicile in the U. S. at the time that your mother will be interviewing for permanent residence. The demonstration of domicile is one of the requirements of the I-864 affidavit of support form that you would have to fill out. In discussing the notion of domicile, the State Department believes that the I-864 can be accepted if the petitioner satisfies the Department of State officer by a preponderance of the evidence that he or she will establish a domicile in the U. S. on or before the date of the intending immigrant’s admission and the Foreign Affairs Manual (FAM) gives examples such as opening a U. S. bank account, transferring funds to the U. S., making investments in the U. S., seeking employment in the U. S., registering children in U. S. schools, and voting in a U. S. election.

2. Just Got Green Card From Marriage, Want to Sponsor 20-year-old Son in U. S., But Any Problems With His F-1 Visa?

I married a U. S. citizen who applied for me and I just got my conditional green card. My son was over the age of 18 at the time that we got married, and so he could not be included. He is 20 years old, and studying in the U. S. at Princeton University. He is afraid that if I file the petition for him, he will have a problem in traveling in and out of the U. S. in the future. Is that true? If so, what can we do? His visa is good until 2019.

Dear reader,
An F-1 student should have nonimmigrant intent, and the filing of an I-130 petition can be taken as an indication that your son does not have that requisite intent. At the present time, he could likely travel in and out easily until the expiration of the visa even if you file an immigrant petition for him. The difficulty may come up if he decides that he wishes to renew the visa in 2019 (please note that he does not necessarily have to have the visa renewed to remain legally in the U. S as the visa only controls travel in and out of the States and he is legal as long as he maintains a valid I-20 and keeps up his full-time schooling). At that point, he would have to disclose that an immigrant visa petition has already been filed on his behalf. Depending on the consular officer, he or she may or may not issue the visa. Arguments on the side of issuance are that your petition for him would take a number of years before your son could immigrate and that your son’s studies would end long before the immigrant visa is available. If you decide to do that, the I-130 petition should be marked for consular processing instead of for adjustment of status to emphasize that point. Another alternative is that you can leave it to your son to find another way to immigrate in the future as many F-1 students ultimately remain in the States through employment immigration or marriage. The difficulty there is that a failure by your son to find a sponsoring employer or life partner can ultimately waste more years during which his immigration petition through you could be moving forward. So unfortunately, there is no bright line choice, and you and he will both have to assess the possible risks and rewards of your future actions.

3. Came as K-1 Fiancé, Did not Marry, Now Married to Another U. S. Citizen with 2 Children – Can I Adjust Status to Permanent Residence Through My Wife’s Petition?

I entered the U. S. in 2002 under a K-1 fiancé visa, stayed with her and her family for about 6 months, but we never married like we were supposed to. We had arguments and she always threatened to send me back. We split up after 6 months, and I got into a relationship with someone else in 2010, got married in 2011, and we have 2 children ages 5 and 6. Can my wife do something for me to adjust my status to permanent residence since we have a marriage they can be proven as real?

Dear reader,
The law does not allow adjustment of status where an individual entered the U. S. under a K-1 and never married the petitioner. Your wife could apply for an I-130 Petition for Alien Relative for you, have that approved, and you could return to your home country for an immigrant visa interview with 2 obstacles – you would have to convince the American consular officer that you did not engage in fraud or misrepresentation when you entered the country under the K-1 visa, and you would have to ultimately file an I-601 waiver application for the ground of excludability of being in the country unlawfully for a year which carries a 10 year bar. If the waiver is approved, you would be able to return as a permanent resident.  Assuming that all goes well, please note that the period of time that you would be outside the U. S. would be approximately 9 months-one year.  Alternatively, you could do nothing and if caught by ICE, you could apply for cancellation of removal (the 10 year green card) before the immigration court. You would have to prove 10 years residence in the U. S., good moral character, and that your removal would cause exceptional and extremely unusual hardship to your wife and children. Please note that cancellation of removal is only available when you are before the immigration court, and is not an application that you can give to U.S.C.I.S.  Because of the difficulty of having cases placed in proceedings affirmatively before the immigration court, some lawyers and consultants have resorted to filing political asylum applications with or without the knowledge of their immigrant clients to get their cases for cancellation of removal before the court, a practice frowned upon especially where the asylum case has little merit.

4. Problem with the In-laws and We Got Divorced – Can I Still Get My Permanent Green Card?

I came into the country in 2014 as an F-1 student, maintained my status, and married my husband in 2016. We applied for my green card and I got a conditional green card in January 2017. We were living in Ohio since we both went to school at the same university there, but after graduation in June for both of us, he wanted us to move back to California to be with his parents. His parents and me do not get along, and so my husband and I argued a lot, and got divorced in November 2017. I have kept all of our documents. Can I still get a permanent green card at this time?

Dear reader,
The law allows conditional permanent residents to obtain permanent status if they are able to prove that they had a bona fide marriage at the inception. In your case, you say that you have kept all of the documents, and that would be very much of a help to prove that you did have a bona fide marriage. As you are now divorced, you do not have to wait to file within the 90 days before the 2nd anniversary of your obtaining conditional residence. If you wish, you can file for removal of the conditions on your residence status (form I-751) at this time with all proof of the bona fide relationship.

Article “This Is What They Love To Hear – Stories Of Immigration Misery”

As published in the Immigration Daily on September 17, 2018.

 

Where did the America go of honor, charity to strangers, and love of country? It’s missing. Terrible things are happening on the immigration front. Countless lives are being upended by the present Administration’s policies running roughshod over the entire terrain of immigration, regardless of whether people are legal or illegal. The abuses run from forced separation of children from their parents, deporting people to certain death who fail credibility interviews which now have incredibly heightened standards, allowing people on the southern border to bake in the sun for days on end to make a claim for asylum, changing asylum standards to exclude those basing claims on gang and domestic violence, dragging out the immigration process to resemble the old slow ways and days of the 1980s and 1990s, putting a target on H-1B specialty occupation petitions by sending out astonishing numbers of requests for evidence and denials, denying record numbers of L-1 intra-company transferee petitions, and changing rules by fiat making it more difficult for all legal non-immigrants to change status to student, punishing F, M, and J students who may have fallen out of status in the past even due to the fault of the school, discouraging all who think to apply for adjustment of status to permanent residence if they have no backup legal status as a denial will result in a Notice to Appear (NTA) in the immigration court as to why they should not be removed (presently on hold as U.S.C.I.S. figures out how to implement the rule), and denying cases filed on 9/11/18 and after without opportunity to correct through a Notice of Intent to Deny (NOID) or Request for Evidence (RFE) if required papers or forms are missing in an application.

On the launch pad are three proposed rules which cannot be done by fiat, but that the Administration will try to ramrod through shortly – a public charge rule designed to bar lower income immigrants and the ability of their sponsors to file for them (read mostly Hispanics and blacks from other countries, not Europeans), an asylum rule to enshrine by regulation the disallowance of asylum for victims of domestic or gang violence and bar from asylum those who enter the country illegally and are convicted of illegal entry (read Hispanics), and a rule to stop employment authorization for H-4 spouses of H-1B specialized occupation aliens which is currently in final clearance and review. It should be noted that, at least with these three, the public will have a notice and comment period before the rules can be implemented.


And yet this collective misery is absolute music to the Administration and Trump supporters across the United States. In this case, one man’s trash is another man’s treasure. Events that shock the sensibilities of many concerned citizens besides the attack on immigration such as those on the environment, regulations enacted to prevent economic disasters, opposing health care and abortion rights, championing underfunded tax cuts giving great advantage to the rich, and tolerating rampant corruption in his administration for as long as possible for loyalists are met with great cheer and leaves one to wonder whether there will ever be a last straw with Trump supporters before the midterms,

Yet moderates and independents who voted for Mr. Trump and the Republicans in 2016 should consider whether it is time to assert American values in a repudiation of the Republican Party which has lost its soul to Donald Trump, a vainglorious amoral man without love of anything besides himself, perhaps his family, and his business empire. A man who denies reality, has told 5000 lies as commander-in-chief, plays the sycophant to Vladimir Putin, toadies up to other dictators for no discernible national advantage, brushes away time-honored allies, supported the Russian denial of interference in the 2016 elections over the assessments of US intelligence agencies, begins trade wars which are economically sapping the country, has extramarital affairs and lies to cover them up, and believes that his federal agencies including the Department of Justice should be used to hound his political opponents and give him political advantage rather than impartially dispense justice. Besides a mean and malevolent spirit, the best reason for which things should not continue in their present state is his lack of interest in any complicated issue as remarked upon by many in the White House who have variously been quoted as calling him an “idiot,” has the attention span of a child,” “brain of a kindergartner,” “anti-trade and antidemocratic,” “f_ _ _ _ _ _ moron” and “The Big Problem: The president did not understand the importance of allies overseas, the value of diplomacy or the relationship between the military, the economy and intelligence partnerships with foreign governments.”

Hopefully the America of men and women who have given their lives for love of country will return and we can begin to see the end of the enthrallment with a president who acts more like a crooked used-car dealer, grifter, and circus barker selling sideshow tickets to see the unicorn and three headed giraffe.

Reprinted with permission.