Helppp
In addition to the PowerPoint slide lectures, supplemental readings, and your textbook, I wanted to briefly touch upon some examples for 3 Common Pathways to LPR Status. This written lecture is designed to provide common examples of pathways to legal permanent residency through obtaining immigrant visas in following ways:
1. Fiancée Visa
2. Marriage Based Immigrant Visa
3. Employment Immigrant Visa
While there are other ways to obtain legal permanent residence through a petitioning process, such as the visa lottery and investor visas (EB3 visas), most immigrant visas are obtained through family or employers. The purpose of this lecture is to provide fact scenarios for each of the common pathways, along with detailed directions of the petitioning process, and documents that will need to be submitted.
1. FIANCEE VISA
When a US citizen decides to marry a non-citizen, the US citizen can file an I-129 F petition to obtain a fiancée visa. The USC is the “Petitioner,” and the non-citizen is the “Beneficiary.” In order to file the I-129F petition, the Petitioner and Beneficiary must have met in person at least one time within the past 2 years before filing the petition. If approved, this visa will allow their non-citizen fiancée to travel to the USA for purposes of marrying the USC petitioner. The marriage MUST take place within 90 days of the non-citizen’s arrival into the US, and the non-citizen may ONLY marry the USC petitioner.
If the beneficiary legally marries the USC petitioner within the 90 days, then the Beneficiary may file an I-485 Application for Legal Permanent Residency, which if approved will give the Beneficiary a legal permanent resident card (aka “Green Card”). If the Beneficiary does NOT marry the Petitioner within the 90 days, then the Petitioner must leave the U.S. before the 91st day, or else the Beneficiary will be deemed to have overstayed the visa and begin to accrue unlawful presence in the U.S.
If the Beneficiary enters the U.S. and marries a different US citizen than the Petitioner, then the Beneficiary may NOT apply for legal permanent resident status while in the U.S. based upon a different petitioner; rather, the different USC will have to file a new immigrant visa petition on the Beneficiary’s behalf to show that the relationship between the two is legitimate. Therefore, the Beneficiary must leave the U.S. before the 91st day or else the Beneficiary will accrue unlawful presence, AND the Beneficiary will have to wait outside of the US until his new spouse’s immigrant visa petition has been approved, after which the Beneficiary’s immigrant visa application needs to be approved. Fortunately, most who enter the U.S. on a fiancé(e) visa end up marrying the US petitioner who filed for them.
EXAMPLE SCENARIO 1.
Fact Pattern: When Harry met Sally, they were driving together for several hours in a carpool to New York City. Sally was a U.S. citizen and an aspiring journalist. Harry was a German citizen. They spent the entire drive talking about platonic relationships. Following a chance meeting at a NYC bookstore, their platonic relationship evolved into a romantic relationship, after numerous evenings spent with friends on the town and lunches at Katz’s Deli. Since his tourist visa was about to expire, Sally and Harry became engaged one week before Harry had to return to Germany, where he worked as a famous professional basketball referee for the Basketball Bundesling League (BBL).
Advice: After Harry left the U.S., Sally met with Ms. Tourney, an immigration lawyer, who recommended that she file an I-129F petition so that Harry could reenter the US to marry her. The immigrant attorney sent her the following email:
Dear Sally,
I recommend that you file an I-129 Petition for Alien Fiancé. Currently, it is taking USCIS between 11 months and 14 months to process and decide I-129F petitions filed at your local service center. Therefore, I suggest that you file this as soon as possible.
Along with your I-129F petition, you must submit proof of your U.S. citizenship, such as a copy of your biographic data page of your US passport (this is the page with her photo and personal information on it), a copy of your U.S. birth certificate if your were born in the US, or your U.S. Naturalization Certificate if you obtained citizenship through naturalization.
You will also need to submit proof that you and Harry met in person within the past two years and have a legitimate relationship. Based upon our brief conversation, evidence of your meeting and legitimate relationship may include, but not be limited to, affidavits from family and friends, affidavits from you and Harry, photos of you and Harry together, copies of receipts for any joint travel, and any proof that Harry visited NYC while you lived here.
The government’s filing fee for the I-129F petition is $535.00 and it is payable by money order or cashier’s check to the “US Department of Homeland Security.” As we discussed, my law office will charge an additional amount for our legal fees, and those terms are outlined I the retainer agreement that you signed today. Remember that this is Step 1 of the overall process. When the I-129F is approved, Harry will need to take Step 2, which is traveling to the U.S. and legally marrying you. Then you and Harry will take Step 3, which is Harry filing an I-485 Application for Permanent Residency and you filing an I-864 Affidavit of Support for him. During Step 3, Harry may also request that he be allowed to legally work and travel in the U.S. If you have any questions, please contact me.
Sincerely,
Ima A. Tourney, Esq.
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While Sally’s immigration attorney has correctly outlined the fiancée process, documents needed, and fees associated with Step 1, think about all the variables that Sally and Harry will encounter:
· Time: Current processing times are 11 to 14 months to have the I-129F petition decided, and once Harry enters the U.S. they only have 90 days to get married. How are they to book a wedding venue or even set a date? How is Harry to look for a job in the U.S. when he doesn’t know when he will arrive or when he will be allowed to legally work?
· Financial Costs: Step 1 is $535.00 plus legal fees. Step 2 will be even more money, since they have to purchase an airline ticket from Germany to the US on fairly short notice since they have no idea when it will be approved, plus wedding. Step 3 will also cost an additional $1,225.00 in government filing fees for the I-485 application, plus an additional amount for any attorney fees.
· Logistics: How will Harry and Sally continue their relationship during this lengthy processing time? International travel will bring increased costs, and Skype and phone calls fail to provide the same level of interaction. Also, Harry has no idea when he will travel to the U.S., so if he needs to sell his house or car, when should he do so? If he plans to come to the US permanently to live, he will need to take care of packing and moving (or selling / liquidating) the belongings that he will or will not take with him to the U.S.
These are just a few common problems that USC petitioners and their fiancés face during this process; however, each situation is unique and brings different individual concerns.
To “speed up” the process, Sally may instead choose to marry Harry instead of pursuing the fiancée visa. Some people choose to travel to their fiancée’s country of citizenship to wed, or they meet in another country to have their wedding ceremony. However, if Sally does this then she will lose the protection of having more time to get to know Harry in person when reenters the U.S. on his fiancée visa. Remember that Sally is not required to marry Harry if he enters on a fiancée visa in the future; rather, Harry can only marry Sally within the 90 days or leave the U.S. before his 90 days expires. Others do not view any inconvenience in waiting to have the fiancée visa approved because they are not in a hurry to marry, regularly travel internationally, or do not have financial concerns due to a lack of possessions. Each relationship, engagement, and couple brings a unique set of circumstances surrounding it, which makes it important for the immigration attorney to fully understand the couple’s objectives and long-term plans, so that proper planning can take place and realistic expectations set regarding the immigration process.
1. MARRIAGE BASED
When a US citizen marries a non-citizen, the process is similar to the fiancé petition process in terms of evidence and filing fee costs, but it is different in terms of forms and procedures. First, the USC petitioner will file an I-130 Petition for Alien Relative on behalf of the non-citizen spouse. The filing fee is $535.00 payable to the U.S. Department of Homeland Security, plus legal fees. The USC Petitioner must still submit evidence of US citizenship. Additionally, a certified copy of the marriage certificate, certified copies of any divorce judgments, a copy of the Beneficiary’s birth certificate, copies of the birth certificates
Second, one must determine whether the non-citizen can file for adjustment of status to become a legal permanent resident while inside the US, or if the alien will have to leave the US and apply for legal permanent resident status from the alien’s country of citizenship.
1. Processing inside of the US
If Harry married Sally after he entered the U.S. legally, he could file an I-485 Application for Adjustment of Status simultaneouslywith Sally’s I-130 petition for alien relative, as long as he was legally inspected and admitted to the U.S on a valid visa. Harry does not have to be in status at the time he files, meaning he could overstay his visa and still file for adjustment of status. If he properly files his I-485 application for adjustment of status with Sally’s I-130 petition before his stay in the U.S expires, then Harry will not have any period of unlawful status. The pending I-485 application will “stay” any accumulation of unlawful presence, until the I-485 application is decided. If the I-485 application was filed by Harry after his authorized stay in the U.S expires, then he would start accumulating unlawful presence. Therefore, if Harry and Sally want to marry in the near future, it would be advisable for them to do so as soon as possible, so that Harry and Sally can simultaneously file the I-485 adjustment of status form and I-130 petition before he was required to leave the U.S.; thus, allowing Harry to remain in the U.S. while the forms are being processed, without having to worry about future unlawful presence issues.
The same marriage based evidence will be submitted with the I-130 and I-485 package to show that their relationship is legitimate. (See the Marriage Based Evidence PDF also posted in this Module). A certified copy of their marriage certificate will also need to be submitted, along with copies of each person’s birth certificates, copy of Harry’s passport, and two photos of each person. Harry will also need to submit a medical exam performed by a USCIS approved doctor, to show that he does not present a risk of threat to public health (ie he is free of communicable diseases, up to date on vaccines, and does not abuse narcotics).
1. Overseas processing
If Harry and Sally marry in the U.S. and there is a reason that Harry is ineligible to apply for adjustment of status in the U.S., then Harry would have to apply for his immigrant visa overseas and be interviewed on it at the consulate of the U.S. Embassy that oversees processing immigrant visas for his country of citizenship. Two common reasons that may require Harry to have to go through overseas processing would be illegal entry into the U.S. or a pending deportation or removal order.
After their marriage, Sally would then file an I-130 petition on Harry’s behalf, along with all the evidence mentioned above. When approved by USCIS, the petition would be forwarded b y USCIS to the National Visa Center (NVC), so that the NVC could contact Sally (petitioner) about paying the immigrant visa application fees and affidavit of support fees for Harry’s (beneficiary’s) immigrant visa application. Once the fees were paid, Harry would log on to the NVC website to complete his immigrant visa application and upload all of his documents. In addition to the I-485 application documents mentioned above, Harry would have to obtain a letter of police clearance from every national police agency for any country in which he lived more than 6 months since obtaining the age of 16 years of age. Under the above scenario, Harry’s countries would include Germany and the U.S.
After the NVC collected all documents, thee NVC would forward everything to the U.S. Embassy abroad so that Harry could be interviewed by the consular officer on his application, and a decision would then be made on his immigrant visa application. If approved, Harry would enter the U.S. as a legal permanent resident, which means he would be immediately able to work in the U.S. upon his arrival. This is a benefit to Harry over fiancée visa, which would not allow him to work upon entry. However, if Harry had been allowed to file for adjustment of status in the U.S. without leaving and going through overseas processing, Harry would have been allowed to apply for work authorization so that he could remain in the U.S. and work legally while his adjustment application was being decided, which is typically the most beneficial scenario to most couples.
1. EMPLOYMENT BASED
Example Scenario 2. Now let’s say that Harry met Sally, but it didn’t work out. Since Harry worked as a famous professional basketball referee for the Basketball Bundesling League (BBL), the NBA’s National Basketball Referee Association decides to file a petition for labor certification on behalf of Harry. The employer must submit evidence that
1. Harry is qualified for the position
2. The Employer’s needs are genuine
3. There is no US citizen or LPR ready, willing, and able to fill that position
4. The employer is willing and able to pay the prevailing wage for the position
The Department of Labor would b the once to collect, review, and issue a decision on the labor certification, which does allow some officer discretion to come into play in rendering a decision, since these are decided on a case by case basis. For example, imagine that the officer reviewing the petition for labor certification was a Denver Nuggets fan, one of the teams with the most blown calls in the NBA; one can see how he may be more inclined to grant the labor certification than say a Orlando Magic fan or Houston Rockets fan. Anyhow, if the Department of Labor approves the labor certification, then, Harry may file an I-485 application for adjustment of status if he was legally admitted into the U.S. and still in a lawful status (meaning he hadn’t overstayed his visa). This is different than the spousal based visa, where he could file for adjustment as long as he was legally admitted, and it wouldn’t prevent him from filing if he had overstayed.