Articles Posted in Hiring an Immigration Lawyer

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the top five reasons K-1 visas are denied and what you can do to avoid these common pitfalls.

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Overview

Imagine this, you have just finished your K-1 visa interview and the Consular officer hands you a letter stating your K-1 visa has been refused. You leave the interview asking yourself, what do I do now?

The good news is you’re not alone. In the majority of cases, applicants may cure any defects in their applications and continue with visa processing. However, it is important to know the application process ahead of time to avoid finding yourself in this situation.

Top Reasons for K-1 Visa Denial  

#1: Not having enough evidence of bona fide relationship

The most common reason for K-1 visa denial is where the couple does not provide enough evidence of a bona fide relationship.

A bona fide relationship is one that was entered in good faith and not with an intention to deceive. A fiancé visa applicant does not have a bona fide marriage if he or she entered the marriage solely to receive an immigration benefit from USCIS. Immigration officers are trained to identify fraudulent or “sham” marriages where either party or both parties have entered the marriage simply for the green card applicant to obtain his or her permanent residence in the United States, without any sincere intention to live together in the same household or form a marital bond.  Immigration officers search for inconsistencies in any answers provided by either party to the marriage, and carefully scrutinize supporting documentation provided by the couple with the initial I-129F filing.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers a hot topic that has been frequently asked by our followers: what are the top reasons for CR/IR-1 immigrant visa denials and what can you do about it.

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Overview

What is a CR-1/IR-1 visa?

A CR-1 or IR-1 visa is an immigrant visa for a spouse of a United States Citizen who is residing abroad. The term “CR” in CR-1 stands for “conditional resident” and is issued to foreign spouses who have been married for less than 2 years. By contrast the term “IR” in IR-1 stands for “immediate relative” and is issued to foreign spouses who have been married for more than 2 years. Those who receive a CR-1 visa will eventually receive a 2-year conditional green card after entering the United States, while those who receive an IR-1 visa will receive a 10-year green card (without condition).

The first step to apply for a CR-1/IR-1 visa is for the U.S. Citizen spouse to file a Petition for Alien Relative, Form I-130, with the U.S. Citizenship and Immigration Services (USCIS) on behalf of the foreign spouse. This petition initiates the immigration process to the United States. Once Form I-130 is approved by USCIS, the petition is transferred to the National Visa Center for pre-processing. At the National Visa Center stage, the applicant must complete the immigrant visa application and provide civil documentation. After sending all required documents to the National Visa Center, the NVC will forward the case to the U.S. Embassy near the foreign spouse and the applicant will wait to be scheduled for an Embassy interview. The Embassy interview is often a make it or break moment for couples who must prove that they have a “bona fide” marriage to be approved for their visa.

What are the top reasons for CR/IR-1 denials?

#1 Not meeting the income requirement for the affidavit of support

The number one reason for spousal visa denials is failing to meet the income requirement for the affidavit of support. As part of the spousal visa application process, the U.S. Citizen spouse must sign the I-864 Affidavit of Support, which is a legally enforceable contract between the U.S. Citizen and the government wherein the U.S. Citizen must sign under penalty of perjury that they have the adequate means to financial support the alien and the alien will not rely on the U.S. government for financial support.

What is the income requirement?

The minimum amount that the U.S. Citizen must make depends on his or her household size. In general, petitioners must make at least 125% of the federal poverty guidelines. However, exceptions exist for petitioners who are on active duty in the U.S. armed forces. Petitioners who do not satisfy the income requirement must apply with a joint sponsor, who must also sign a separate I-864 Affidavit of Support and provide evidence of financial ability. If the petitioner and joint sponsor do not qualify, the spousal visa application will be denied.

To prevent this situation from happening petitioners must make sure well in advance of filing the I-130 application, that they either meet the income requirement, or that they can obtain a joint sponsor who is willing and able to sign the affidavit of support and provide the necessary documentation.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new federal court order that reinstates the DACA program (Deferred Action for Childhood Arrivals) and invalidates the Wolf Memorandum which previously posed an obstacle to initial requests for DACA.

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Overview

On December 4, 2020, U.S. District Judge Nicholas G. Garaufis of the Eastern District of New York made history when he signed a court ruling that will force the government to accept new initial requests for DACA within 3 calendar days.

This legal challenge was brought before the court after the government’s publication of the controversial “Wolf Memorandum” on July 28, 2020, in which the acting Secretary of Homeland Chad Wolf unlawfully directed DHS personnel to (1) reject all pending and future initial requests for DACA (2) reject all pending and future applications for advance parole absent exceptional circumstances, and (3) to shorten DACA renewals to a two-year period.

DACA applicants who had an application for deferred action through DACA pending between June 30, 2020 and July 28, 2020 (the date the Wolf Memorandum was issued) brought sought alleging that the Wolf Memorandum was a violation of the Administrative Procedure Act.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a very important topic: what are the top 5 mistakes applicant’s make when applying for citizenship and how can you avoid them?

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Overview

New changes to the naturalization examination are coming. Beginning December 1, 2020, the United States Citizenship and Immigration Services (USCIS), will introduce new changes that will make it more difficult for applicants to pass the civics examination. These new changes will apply to citizenship applications filed on or after December 1, 2020.

What type of changes will be introduced?

In order to obtain U.S. citizenship, applicants must successfully pass two components of the naturalization examination: The first is English proficiency – applicants must demonstrate English language proficiency as determined by their ability to read, write, speak and understand English. The second requirement is the civics examination – applicants must pass an oral examination by demonstrating adequate knowledge of U.S. history and government.

Beginning December 1, 2020 USCIS will:

  • Increase the general bank of civics test questions from 100 to 128 (the possible questions that may be asked)
  • Increase the number of test questions that will be asked for the civics exam to 20 (from 10)
  • Increase the number of correct answers needed to pass the civics test to 12 (from 6)
  • The test score required to pass (60 percent correct) the civics test however will not change

In order to pass the civics examination applicants must correctly answer at least 12 of the 20 questions asked.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers your frequently asked questions relating to K-1 visas, the National Visa Center, and consular visa processing during the ongoing Coronavirus pandemic.

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Your Frequently Asked Questions

Q: How can I contact the National Visa Center?

A: Once your Form I-130 Petition for Alien Relative has been approved, your case will be transferred to the National Visa Center for further processing. Once pre-processing has been completed, your case will be forwarded to the U.S. Consulate or Embassy near you. At the NVC stage, you will be asked to provide additional supporting documentation including the affidavit of support, Form DS-260 Immigrant Visa Electronic Application, and other important documents.

To ensure all of your supporting documentation has been received it is very important to maintain contact with the National Visa Center.

You may contact the NVC by email at NVCinquiry@state.gov or by telephone at 603-334-0700.

Q: Will immigration consider my priority date or approval date for interview?

A: For family-sponsored immigrants, the priority date is the date that the Form I-130, Petition for Alien Relative, or in certain instances the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, is properly filed with USCIS.

Depending on the type of relationship you have to the U.S. petitioner, you may need to reference your priority date to determine when an immigrant visa (or green card) will become available to you.

Immigrant visas for immediate relatives of U.S. citizens are unlimited, so they are always available. Immediate relatives include:

  • The spouses of U.S. citizens;
  • The children (unmarried and under 21 years of age) of U.S. citizens;
  • The parents of U.S. citizens at least 21 years old; and
  • Widows or widowers of U.S. citizens if the U.S. citizen filed a petition before they died, or if the widow(er) files a petition within two years of the citizen’s death.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers one of your frequently asked questions: how can I apply for an E-2 investor visa despite the ongoing Coronavirus pandemic and suspension of routine visa services at Consulates and Embassies worldwide.

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Overview

More and more our office is receiving inquiries from prospective E-2 visa applicants who are stuck in the application process due to the ongoing Coronavirus pandemic.

First, what are the requirements for an E-2 visa?

The E-2 visa is a treaty trader investor visa that allows foreign investors from select countries to invest in an existing or new business enterprise in the United States.

Requirements:

  • The investor, either a person, partnership or corporate entity, must be a citizen of a treaty trade/investment country
  • You must have invested or be in the process of investing in the business and show the path of funds for the investment from your home country to the US account
  • The investment must come from the investor and the money must be “at risk,” meaning that the investor must take action to invest the money into equipment, renting the business premises, and other such investment activities
  • You must actually start the business and hire workers before applying for the E-2 visa
  • You must be in a position to direct the business with your experience and/or skills and be involved in the management or operation of the business. You cannot be a passive investor
  • There is no set investment amount required however the investment must be sufficient to start the particular business (this amount will vary depending on the type of business enterprise)
  • The business cannot be marginal –the business should not be established solely for the purpose of earning a living for the applicant and his or her family.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses the new November 2020 visa bulletin, including upcoming visa trends and predictions for family-sponsored and employment-based preference categories.

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Overview

We are very excited about the new release of the November Visa Bulletin. Some exciting advancements have taken place for certain employment-based preference categories. However, visa issuance remains limited for most family-sponsored categories and at least some employment-based preference categories as discussed below.

Impact of April 22nd Presidential Proclamation

As a reminder to our readers, most family-sponsored and some employment-based preference categories remain subject to President Trump’s April 22nd presidential proclamation. This proclamation temporarily suspends the entry and issuance of visas for the following types of immigrants through December 31, 2020.

  • Spouses and children of green card holders (US citizens are not affected) applying at the consulate
  • Parents of US citizens applying at the consulate
  • Brothers and sisters of US citizens applying at the consulate
  • Sons and daughters (over 21 years of age) of US citizens applying at the consulate (children under 21 years of age of US citizens are not affected)
  • Sons and daughters (over 21 years of age) of green card holders applying at the consulate
  • EB1A extraordinary abilities and their family applying at the consulate
  • PERM EB2 employment based (NIW is not affected) and their family applying at the consulate
  • PERM EB3 employment based and their family applying at the consulate
  • EB4 religious workers immigrants applying at the consulate

EB5 investors are not impacted by the April 22nd proclamation.

Certain applicants may still obtain immigrant visas despite enforcement of the presidential proclamation if their entry is in the national interest or if they have a legitimate emergency.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick discusses a new and exciting court ruling decided this morning, November 2, 2020, that sets aside the public charge rule, known as the Inadmissibility on Public Charge rule effective immediately.

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Overview

Today, November 2, 2020, federal judge Gary Feinerman of the United States District Court for the Northern District of Illinois, issued a ruling in the case, Cook County Illinois et al. v. Chad Wolf et al., immediately setting aside the public charge rule on a nationwide basis.

The plaintiffs in the lawsuit brought a motion to vacate the final rule arguing that the rule should be stricken because (1) it exceeds the government’s authority under the public charge provision of the INA (2) is not in accordance with the law (3) is arbitrary and capricious and (4) violates the equal protection clause of the fifth amendment.

The judge agreed with the plaintiffs based on a previous ruling issued by the Seventh Circuit court which found that the public charge rule was substantively and procedurally defective under the APA, and was likely to fail the arbitrary and capricious standard under the law based on the government’s failure to adequately consider the interests of state and local governments.

In support of his decision to set aside the public charge rule, Feinerman stated “the Seventh Circuit has held that continued operation of the Final Rule [the public charge rule] will inflict ongoing harms on Cook County and on immigrants, and this court has held that the same is true of ICIRR [the other named plaintiff].”

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick updates you regarding the status of K-1 visa interview scheduling at U.S. Consulates and Embassies worldwide, as well as the status of a new lawsuit that seeks to push K-1 visa cases through the pipeline.

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Overview

Since the beginning of the Coronavirus pandemic, U.S. Consulates and Embassies abroad have refused to schedule K-1 visa applicants for interviews and have instead opted to prioritize interview scheduling for certain spouses of U.S. Citizens. As a result, thousands of couples have remained separated for months on end with virtually no end in sight. This has been a very puzzling phenomenon given that foreign fiancés should be given priority for visa issuance based on their qualifying relationship to a U.S. Citizen. In some cases, K-1 visa applicants have had their interviews cancelled with no follow-up from the Consulate or Embassy regarding future rescheduling, while in others K-1 visa applications have not moved past the NVC stage for interview scheduling.

In our own experience very few K-1 visa applicants have received visa interviews and the cases that have been prioritized are because of serious medical emergencies or other urgent needs. We have been successful in receiving interviews only where the applicant has received approval for expedited processing.

In an unexpected turn of events on August 30, 2020, the Department of State released a cable stating that effective August 28th K-1 visa cases would receive “high priority.” The cable directed K-1 visa applications to check the website of their nearest U.S. Embassy or Consulate for updates on the services offered by the post.

Unfortunately, this cable did not provide applicants with any relief because it was largely ignored by U.S. Consulates and Embassies. Many applicants contacted their posts directly and were given generic messages stating that the post was not able to provide services for K-1 visa applicants until further notice. These new revelations ultimately forced K-1 applicants to seek relief from the courts.

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Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick provides a brand-new update regarding employment and family-based interview waivers during the Coronavirus pandemic. In addition, he discusses a recent trend being followed by the United States Citizenship and Immigration Services (USCIS).

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Overview

While no official policy or memorandum has been issued by USCIS regarding interview waivers, since at least May of this year, we have seen the agency use their broad discretionary power to waive the interview requirement for at least certain employment and family-based petitions, approving these cases without first scheduling an interview.

What does it mean for USCIS to “waive” the interview requirement?

In general, all adjustment of status applicants must attend an in-person interview at a USCIS field office where an immigration officer will verify whether the applicant understood the questions being asked on the green card application and evaluate whether the applicant qualifies for the immigration benefit requested. The interview is a good opportunity to correct any mistakes on the application form and resolve any issues in the underlying case.

In some instances, USCIS officers may “waive” this interview requirement if they find that it is unnecessary to interview the applicant. In situations where the officer “waives” the in-person interview, he or she relies only on the written evidence provided on the application to approve the applicant for U.S. residence (the green card).

Normally, USCIS uses its discretion to waive interviews for parents of U.S. citizens, unmarried children under 21 years of age of U.S. Citizens, unmarried children under 14 years of age of lawful permanent residents, asylees and refugees who were previously interviewed by a USCIS officer, and applicants who are clearly ineligible for the benefit they seek.

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