Helppp

6.pptx

Ayodele Gansallo Judith Bernstein-Baker

Understanding Immigration Law and Practice

Second Edition

Note to instructors: This chapter and Power Point is quite lengthy and we recommend it be taught over two to three sessions. A natural break for a two session presentation would be to teach the first session up to slide 29, which completes the discussion regarding petitions. The Power Point then covers adjustment of status, consular processing, fianceés, conditional residency and waivers of unlawful presence.

Family Sponsored Immigration: Family Relationships AND ADJUSTMENT OF status

Chapter 6

Family-Based Immigration

Sources of law

INA §201, provides quota numbers for visas

INA §202 provides per country quota limits of 7% of visas issued

INA §203 describes preference allocations (limitation of visas based on sponsor’s status and relationship to the relative being sponsored)

INA § 204 describes the petitioning procedure

Key Terms

Petitioner

Beneficiary

Priority Date

Public Charge and Affidavit of Support

Adjustment of Status vs. Consular Processing

Family-Based Immigration

THE PLAYERS

Petitioner

U.S.C.

LPR

Beneficiary: qualifying family members

Family-Based Immigration

QUALIFYING FAMILY MEMBERS FOR U.S.C.

Immediate relatives

Spouse

Minor children under 21 yrs. old

Parents

Other relatives

Unmarried sons and daughters over 21yrs old

Married sons and daughters, any age

Siblings

Family-Based Immigration

QUALIFYING FAMILY MEMBERS FOR LPRs

Spouse

Unmarried children under 21 yrs old

Unmarried sons and daughters over 21 yrs old

Preference Relatives

Family 1st (1st Preference): Unmarried son or daughter of U.S. Citizen over 21

Family 2A: spouse or minor child under 21 of LPR

Family 2B: unmarried child over 21 of LPR

Family 3rd: Married son or daughter of U.S. Citizen

Family 4th: Siblings of U.S. Citizen

Treatment of Immediate Relatives vs. Preference Relatives

Immediate Relatives: NO QUOTAS

Preference relatives: wait time depends on family relationship and country quotas depicted in the DOS VISA BULLETIN

Reading the VISA BULLETIN

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

2/26/2017

This slide presents a good opportunity to do the following supplemental exercise in class:

Diego, a naturalized U.S. citizen, filed a relative petition for his married sister, Magdalena, in June, 2019. She is a citizen of Mexico.

Based on the visa numbers available in June, 2019 for a fourth preference relative from Mexico, how long can Magdalena expect to wait before a visa number becomes available?

This exercise helps learners understand how to use the visa bulletin in Family Preference cases. The visa bulletin is available at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html

The exercise requires the student to (a) determine if the Final Action Date chart should be use or the Date for Filing Chart. This is determined by accessing the link www.uscis.gov/visabulletininfo

The correct chart is “Dates for Filing” based on the USCIS website for June, 2019.

(b) After the proper chart to be used is identified, the learner should identify which Family Preference category this case presents. (4th Preference). Then, in accessing that category, the reality of the quota system is apparent, as there is a longer wait for Mexican nationals than other groups in this category. Students should use the visa bulletin to determine the approximate wait time for a visa to become available.

Instructors can use a more recent visa bulletin, including the visa bulletin that is current during the presentation.

Derivative Relatives

Available for those immigrating under preference categories

No derivatives for immediate relatives

Applies to spouse and child (<21 yrs) of principal beneficiary

Visa petition required only for principal, but may be advantageous to file individual applications

Cross Chargeability

Because of the quota system, it may be beneficial to “charge” an application to a particular foreign country of a family member.

Example: James from the Philippines is being sponsored by his mother, a U.S. citizen. He is married to Michiko from Japan. It is more beneficial to consider/charge the application as coming from a Japanese national due to shorter wait times for Family First visas for Japanese nationals.

Spouses in Family-Based Immigration

WHO IS A SPOUSE?

The marriage must be legal in the jurisdiction where it occurred

Marriage certificate

Free to marry

Effect of foreign marriages

Proxy marriage

Common-law marriage

Same-sex marriage

Intent to establish life together? Matter of Laureano, 19 I&N Dec. 1 (BIA 1983)

Objective facts to shed light on subjective state of mind

Conduct prior to marriage: Matter of Soriano, 19 I&N Dec. 1 (BIA 1983)

Reasonable Gov’t interview: Stokes v. INS, 393 F. Supp. 24 (S.D.N.Y. 1975)

Inconsistent statements can lead to denial

Bona Fides of Relationship

Cohabitation and consummation not prerequisite:

Elderly couple, separate bedrooms: Matter of Peterson, 12 I&N Dec. 663 (BIA 1968)

Transsexual marriage not initially recognized: Yates Memo, USCIS, HQOPRD 70/6 III (Apr 16, 2004)

Postoperative transsexual marriage recognized: Matter of Lovo, 23, I&N Dec. 746 (BIA 2005). However, USCIS memo says otherwise.

Viability of Marriage

Separation of parties no basis for denial: Matter of McKee, 17 I&N Dec. 332 (BIA 1980)

Separation relevant to fraud at inception

Subsequent behavior doesn’t prove lack of intent: Bark v. INS, 511 F.2d 1200 (9th Cir. 1975)

Who is a Child in Family-Based Immigration?

Unmarried minor under the age of 21, including:

Biological child

Child born in or out of wedlock

Stepchild: if parents married when child was 18 yrs or less

Adopted child: 16 yrs or less, residing with parents for 2 years

Certain orphans

Child Born out of Wedlock

A child born to a mother is automatically considered the mother’s child.

A father must show that he is the natural father AND that a bona fide parent-child relationship was established when the child or son or daughter was unmarried and under twenty-one years of age. Such a relationship will be deemed to exist or to have existed where the father demonstrates or has demonstrated an active concern for the child's support, instruction, and general welfare. [8 C.F.R. 204.2(d)(2)(iii)]

Child Status Protection Act

Effective date: August 6, 2002

Extends age of child for benefits purposes

U.S.C. Children:

Petition filed pre-21 yrs? Never age out.

LPR Children:

Calculates date petition was pending and deducts the amount from the child’s age

The formula to calculate eligibility is on p. 271 of text.

Adam Walsh Child Protection and Safety Act

Petitioners who have committed certain offenses cannot file a petition for a beneficiary in any preference category, or their qualifying relative

Most offenses involve sexual crimes, listed on p. 265 in text

Petitioning is Two Step Process

Step 1: file an I-130 petition to establish relationship and eligibility

Petitioner files this for the beneficiary

Step 2: beneficiary files adjustment of status, I-485, if in U.S., or does consular processing, if overseas

Filing the I-130 and I-485

Immediate relatives can file the I-130 and I-485 at the same time if the beneficiary is in the U.S. and was lawfully admitted to the country. This is known as concurrent filing.

Preference relatives can only apply for adjustment of status (I-485) when their priority date has been reached and they are in lawful status.

Other Groups That Can File Concurrently

Special Immigrant Juveniles-if a visa is available

Self-Petitioning battered spouse or child of US citizen

Certain members of the Armed Forces

2/26/2017

Favored Treatment to Immediate Relatives Who Overstay

- Can adjust status in the U.S.

- Overstay is forgiven

- Unlawful employment forgiven

2/26/2017

Revocation/Termination of Visa Petition

Failure to apply for visa within one year of State Dept. notification visa available

Filing fee paid is not paid within 14 days of returned check

Petitioner withdraws petition

Beneficiary dies: no benefit for derivatives

Revocation/Termination of Visa Petition

Petitioner dies although can substitute for affidavit of support. See also widow’s petition.

Termination of marriage

Unmarried son or daughter’s marriage

Termination of LPR status

Death of U.S.C. Before Petition is Filed

Legal spouse at time of death

Marriage was bona fide

No legal separation prior to death or remarriage after

No inadmissibility issues

Meets adjustment requirements and warrants favorable exercise of discretion

File Form I-360: Self-petition within 2 years of death

Death of Petitioner After the Petition is Filed but not Approved

Allows visa petition and adjustment of status to be approved if:

Beneficiary resided in United States at time of petitioner’s death and continues to do so through decision on pending petition

Beneficiary of a petition filed by a U.S.C., LPR, employer, refugee, asylee, or derivative of a U, T, or asylum application

Death of Petitioner After the Petition is Approved

Beneficiary may seek a substitute sponsor who can complete the affidavit of support from a long list of relatives.

The Marriage Application

Who is the client?

What if a conflict arises?

What if one party gives confidential information?

How do you handle issues of domestic violence?

How do you know this is a valid marriage?

Forms Used in Family Applications

G-28, Notice of Entry of Appearance as an Attorney or Accredited Representative for petitioner and beneficiary

*I-130, Petition for Alien Relative

*I-130A, Supplemental Information for Spouse Beneficiary (marriage cases)

*I-485, Application to Register Permanent Residence or Adjust Status

*I-864, Affidavit of Support Under Section 213A of the INA

*I-693, Report of Medical Examination and Vaccination Record

I-765, Application for Employment Authorization

I-131, Application for Travel Document

*Mandatory

Form I-130, Petition for Alien Relative

Supporting documents for Form I-130

Docs to prove immigration status of petitioner

Proof of relationship: 8 C.F.R. §204.2

Extra hurdles for spouses and unmarried fathers

Birth certificates, affidavits, to prove family relationship

This may be a good opportunity for the instructor to distribute the sample homework assignment as ask students to complete an I-130 based on the case study of Vlad and Marina.

Form I-130, Petition for Alien Relative

Termination of prior marriage, where relevant

Divorce documents, where relevant

Passport picture of petitioner and beneficiary where married

Immigration fee

This may be a good opportunity for the instructor to distribute the sample homework assignment as ask students to complete an I-130 based on the case study of Vlad and Marina.

Form I-485Application to Register Permanent Residence or Adjust Status

Adjustment application

Used in many situations –

Refugees

Asylees

Employment based applications

Fiancé(e)

Battered spouses

Form I-485Application to Register Permanent Residence or Adjust Status

Supporting Documents

I-94 card or passport as proof of entry

Birth certificate

Medicals: Civil Surgeon (I-693)

Criminal dispositions, if applicable

Passport photos

Check for immigration fees

Approved petition/Evidence of basis for Adjustment of Status

Form I-864, The Affidavit of Support Under INA§ 213A

An Affidavit of Support, I-864 is required for most family-based sponsored immigrants

Sponsors are legally required to reimburse federal or state means-tested benefits the beneficiary received if the beneficiary was not eligible

Form I-864, The Affidavit of Support Under 8 C.F.R. §213a

When is it not needed?

Diversity lottery

I-360 self-petitions for Special Immigrant Juveniles and battered spouses

Refugees/Asylees

Those with 40 qualifying quarters of SSA credits

Registrants under INA §249, entered prior to January 1, 1972 (registry program)

Form I-864, The Affidavit of Support Under 8 C.F.R. §213a

Where family member immediately becomes U.S.C. on entry to U.S. (Complete I-864W instead)

Widow(ers)-change in law, FY 2010 (must file within 2 years of death of spouse)

Certain members of the Armed Forces only need to show 100% of the poverty level

Determining Household Size

Sponsor’s spouse

Sponsor’s children under 21

Intending immigrant

Dependents on sponsors tax return

Other immigrants sponsor might have sponsored previously who are not yet USC’s

2/26/2017

What if Sponsor/Petitioner has Insufficient Income?

Can use 20% of sponsor/petitioner’s assets

Can add income of household members by completing I-864A, Contract between Sponsor and Household member

Can find a joint sponsor

May be able to include beneficiary’s income if s/he has permission to work

Can include beneficiary’s assets (20%)

Obligation of Sponsor Completing I-864

Contractual obligation until or unless:

Beneficiary becomes U.S.C.

Beneficiary earns 40 qualifying quarters of Social Security credits

Beneficiary loses LPR status

Obligation of Sponsor Completing I-864

Beneficiary obtains LPR status through removal proceedings

Beneficiary leaves the U.S permanently

Beneficiary dies

Divorce of sponsored immigrant does not relieve the sponsor of obligation to support the beneficiary.

Can Sponsored Immigrant Get Public Benefits?

No means tested benefits

Food stamps, medical assistance, cash welfare, SSI

Some states allow medical assistance funded by the state

Sponsor and Jt. Sponsor can be sued by the state if immigrant obtains public benefits

Or petitioner by pending immigrant if s/he isn’t supported.

2/26/2017

Public Charge Issues

Applicants likely to rely on government benefits to support themselves may be considered subject to “public charge’ grounds of inadmissible and denied adjustment of status.

In the past, a completed Affidavit of Support, Form I-864 overcame any public charge concerns.

New regulations published by the Department of Homeland Security on August 14, 2019 the Affidavit of Support would be changed to a Declaration for Self-Sufficiency and heighten the standard for overcoming public charge concerns.

This might be a good time for an instructor to ask students to complete an I-864 based on the case study of Vlad and Marina.

Recap: Completing the I-485 Package

Form I-485

Form G-28

Evidence of lawful entry to the U.S.

Birth certificate –translated into English

Form I-864

Recap: Completing the I-485 Package

Form I-797 Approval notice of I-130, or if filing concurrently (immediate relative), form I-130 with supporting documentation

Fees

Passport pictures

If relevant, dispositions of arrests

If needed, Application for Employment, I-765 and Travel, I-131

See https://www.uscis.gov/i-485

Applying for Adjustment of Status

What if no proof of entry?

What if entry EWI?

INA §245(i)

Last filing date: April 30, 2001

Prior filing date: January 14, 1998; requires physical presence in U.S. on December 21, 2000

The Relevance of INA §245(i)

Grandfathering of INA §245(i)

Immigrant visa petition

Labor certification application

Filing of a petition that was (see 8 C.F.R. §245.10)

Properly filed: received or postmarked on or before April 30, 2001

Approvable when filed: properly filed, meritorious in fact and non-frivolous

The Relevance of INA §245(i)

Benefits:

EWIs

Non-immediate relative overstayers

Employed without authorization

Pay fine of $1000, unless <17yrs old

Doesn’t waive inadmissibility grounds

Form I-765, Application for Employment Authorization

Authorization to work

Category: (c)(9)

Valid one year

File if approvals for work authorization will occur before an approval of the I-485

Beneficiary may be able to use the income from employment if it helps meet 125% of poverty level

Application for Travel Document, Form I-131

Advanced Parole

Allows person who is filing an adjustment of status application to leave country without abandoning application

Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012)

Immigration Marriage Fraud Amendments Act 1986

Marriage during removal proceedings: IMFA §5, INA §§204(g)

Prove by clear and convincing evidence marriage was entered in good faith: higher standard

If not, remain outside U.S. for aggregate of 2 years before reentering, unless,

Divorce and remarry outside U.S.

Conditional to Permanent Residency

Married < 2yrs, conditional residence

Apply to have conditions removed 90 days before 2nd anniversary

Joint application: Form I-751Petition to Remove Conditions on Residence

Documentation of living together

Conditional to Permanent Residency

Waivers: INA §216(c)(4)

Extreme hardship arising in conditional period

Good faith

Battered or subjected to extreme cruelty

Marriage terminated other than through death

Adjustment v. Consular Processing

WHERE TO APPLY

USA through USCIS

Consular process through DOS

WHEN TO APPLY

Preference list

Visa Bulletin

Consular Processing

Petitioner is likely to be in the U.S.

Family member (Beneficiary) is abroad or returning home from the U.S. to process

Agencies involved

USCIS

Department of State

CBP

2/26/2017

Visa Bulletin

Review Preference Categories

1st Preference: Sons and daughters > 21

2nd Preference:

2a Spouse or child of LPR

2b Sons and daughters of LPR

3rd Preference; Married sons and daughters

4th Preference: Siblings

Priority dates

Country quotas

Consular Processing – Division of Labor

USCIS approves Petition (I-130)

Fees, civil docs and I-864 are sent to DOS Consular post

Consular Officer from Dept. of State can send the I-130 petition back to USCIS for further review

Consular Officers use the Foreign Affairs Manual’s guidelines

The FAM guidelines may differ from regulations governing USCIS

The intending immigrant gets further review from CBP at the border

Consular Processing

DOS forms and documents:

DS-230 I & II

Birth certificate

Beneficiary’s passport

Marriage certificate

Divorce certs if applicable

Medicals: specified doctors abroad

Police certificates showing no criminal history

Affidavit of Support, Form I-864

Processing Steps

I-130 is approved by USCIS

The approval letter is sent to the petitioner; the approved petition is sent to the National Visa Center (NVC)

When the priority date is current, the NVC contacts the petitioner. The process continues using Consular Electronic Application Center (ceac.gov.) All documents are submitted electronically.

Processing Steps

4. Applicant/beneficiary fills out Choice of Agent Form DS-261 submitted through ceac.gov, if needed; all fees must be paid through ceac.gov

5. Applicant/beneficiary completes the DS-260 and sends to ceac.gov

6. Affidavit of Support, Form I-864 and required civil documents sent through ceac.gov

7. Information about the overseas interview sent to applicant/beneficiary and legal representative, if any. Instructions for medical exam sent to the applicant/beneficiary.

The Overseas Interview and Entry

An overseas interview at a consular post is scheduled for the applicant/beneficiary.

The applicant is approved for an immigrant visa. S/he must travel within six months of approval,

The visa is not approved, and the petition is sent back to USCIS for possible revocation.

The Overseas Interview and Entry

When the visa is approved, the applicant travels to the U.S. and is given entry by CBP and the “green card” arrives to the applicant’s home.

The applicant travels and CBP denies entry, and the applicant is placed in removal proceedings, detention or immediately sent home by CBP.

Public Charge Issues

The Consular Office must determine if the applicant/beneficiary is likely to be a “public charge” because s/he will rely on public benefits for support. If so, the applicant will be denied a visa based on the public charge ground of inadmissibility

In the past, a completed I-864, Affidavit of Support would overcome any public charge concerns.

Now, Consular Officers are instructed by the FAM to use a “totality of the circumstances” review of each applicant, assessing their age, health, family status, assets and financial status and education and skills.

LPR Children Who Become Citizens Upon Entry

Child Citizenship Act of 2000

Children under 18 who

Have at least one American citizen parent by birth or naturalization;

Live in the legal and physical custody of the American citizen parent;

—and—

LPR Children Who Become Citizens Upon Entry

Are admitted as an immigrant for lawful permanent residence.

Become U.S. citizens upon entry as an LPR

Form I-864W Intending Immigrant’s Affidavit of Support Exemption is used instead of Form I-864

Unlawful Presence and Provisional Waivers

Those who enter Enter Without Status (EWI) cannot apply to adjust status in the U.S. They must apply for an immigrant visa at a consular office abroad.

When the foreign national leaves, s/he triggers the accrual of unlawful presence. Unlawful presence of 6 months to a year in the U.S. bars a person from re-entering for three years; unlawful presence for a year or more bars re-entry for ten years.

Unlawful Presence and Provisional Waivers

A foreign national who can show her/his absence would cause extreme hardship to a qualifying relative may apply for a waiver of the three- or ten-year bar so they can re-enter the U.S. sooner with an immigrant visa.

Qualifying relatives include a spouse, son or daughter of a U.S. citizen or permanent resident.

NOTE THAT U.S CITIZEN CHILDREN ARE NOT QUALIFYING RELATIVES FOR THE WAIVER.

Unlawful Presence and Provisional Waivers

Waiver request filed on Form I-601, Application for Waiver of Ground on Inadmissibility.

In some cases, the waiver can be filed while the foreign national is in the U.S. using Form 601A.

If approved, it can then be submitted to the consular office abroad when the individual applies for an immigrant visa.

Form I-129F, Petition for Alien Fiancé(e)(K Visa)

Allows entry in order for marriage to take place in U.S.

Nonimmigrant visa petition

Entry for 90 days only

Must have met at least once in last 2 yrs; waivable

Intend to marry

Legally able to marry

K/Fiancé(e) Visas

Apply for AOS after marriage

No need for Form I-130 unless marriage is outside 90 days

Conditional resident status granted; must be married to original K-1 petitioner

Children < 21yrs given K-2

K-3 available for spouse and children of U.S.C. if received Form I-130 receipt notice

K-4 for children of K-3 who are < 21yrs