Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss a frequently asked question: can you travel with a pending I-485 Adjustment of Status application?
Overview:
Generally, anytime a person has a pending application with USCIS like a visa extension or change of status petition, that person cannot depart the United States until that petition is approved.
In this video however we will focus specifically on applicants who have a pending I-485 adjustment of status application based on family or employment sponsorship.
Employment-Based Applicants
With regard to employment-based adjustment of status applicants, this category of applicants is typically present in the United states on a valid non-immigrant visa classification such as H1B, L1, etc. and are simply waiting for their I-485 green card petition to be adjudicated.
With respect to H1B and L1 visa holders ONLY, these individuals can depart the United States on their H1B or L1 visa classification and return, despite having a pending I-485 application.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss whether a parent of a US Citizen child 21 years of age or older, can adjust status within the US if they overstayed their visa.
Overview:
In this scenario, a US citizen child is interested in petitioning his or her parent for a green card. In this case, the parent arrived to the United States on a valid visa 12 years ago and overstayed that visa.
Can that parent adjust their status in the US? Can the parent do this process from within the US or overseas?
As long as the parent entered the United States legally by way of a valid visa and the petitioning child is a US Citizen over 21 years of age, the parent is still eligible to apply for adjustment of status within the United States, even if the parent has overstayed their visa. The “overstay” is essentially waived in cases where the petitioner is a U.S. citizen and immediate relative of the beneficiary.
On the adjustment of status application, the overstay must be disclosed.
DUI Offenses
What if my parent obtained a DUI offense while in the US? Are they still eligible to Adjust Status?
A DUI on its own does not bar an applicant from obtaining permanent residence, however the applicant must provide all documentation necessary regarding the offense, such as the final disposition of the offense, and documentation showing what if any fines were paid.
Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss an important topic relating to family-based immigration: how can I immigrate my parent to the United States?
How do you immigrate a parent to the United States?
You must be a United States citizen (over 21 years of age) to immigrate your parent to the United States. The process of immigrating your parent to the United States depends on where your parent is residing at the time of filing.
Adjustment of Status
The most common scenario is where your parent has entered the United States on a non-immigrant visa for a non-immigrant purpose (such as visiting the United States) and several months later a decision is made to adjust the parent’s status to permanent residence. In this scenario, the appropriate process to immigrate the parent to the United States is through a process known as adjustment of status to permanent residence.
During this process, the United States citizen child will file a petition with USCIS called Form I-130 to immigrate their parent to the United States as well as Form I-864 Affidavit of Support. The United States citizen child must sign Form I-864 Affidavit of Support to prove they have the financial ability to provide for their parent until the parent becomes a US citizen. If the United States citizen child cannot prove financial ability, a joint sponsor will be needed who can prove their financial ability. At the same time, the parent will file Form I-485 with USCIS to change their status to that of permanent residence. In addition, the parent may choose to apply for employment authorization and a travel permit by filing Forms I-765 and I-131, in order to work and travel internationally while the green card application is in process.
Once these petitions are filed with USCIS, the parent can wait in the United States until the green card process is completed. The process is considered complete once the parent is approved following the green card interview.
In this video attorney Jacob Sapochnick discusses some new developments regarding the government’s planned implementation of a final rule that would have made certain individuals inadmissible to the United States on public charge grounds.
On October 11, 2019, judges in three separate cases before U.S. District Courts for the Southern District of New York (PDF), Northern District of California (PDF), and Eastern District of Washington (PDF) granted court orders to stop the government from implementing and enforcing the terms of the public charge rule proposed by the Trump administration. As a result, the final rule has been postponed pending litigation until the courts have made a decision on the legality of the rule on the merits. These court orders have been placed nationwide and prevent USCIS from implementing the rule anywhere in the United States.
What would the public charge rule have done?
The public charge rule was set to be enforced on October 15, 2019. The rule would have expanded the list of public benefits that make a foreign national ineligible to obtain permanent residence and/or an immigrant or nonimmigrant visa to enter the United States.
A person would have been considered a “public charge” under the rule, if they received one or more designated public benefits for more than 12 months in the aggregate, within any 36-month period.
In this video attorney Jacob Sapochnick discusses the implications of accepting unlawful employment while in the United States, how it can impact your future green card or immigration status in the United States.
First, what is unlawful employment?
Unlawful employment occurs when a foreign national accepts employment outside of their authorization. For example, if you do not have a work visa with authorizes you to engage in lawful employment, a green card, or employment authorization card, and you accept employment regardless, then you have accepted unlawful employment. In some cases, even unpaid employment may be considered unlawful employment.
Unlawful employment is employment that may have occurred before your last entry (maybe years ago), employment that you have taken before you have filed for adjustment of status, etc.
Unauthorized employment may impact a person’s ability to legalize their status in the United States. However, there are certain instances in which accepting unauthorized employment will not have a negative effect on a person’s future ability to obtain permanent residence.
Exceptions
One of these exceptions is what we call the “immediate relative exception.”
If you are an immediate relative of a U.S. citizen, and are filing for adjustment of status based on your family relationship as:
The spouse of a U.S. citizen;
The unmarried child under 21 years of age of a U.S. citizen; or
The parent of a U.S. citizen (if the U.S. citizen is 21 years of age or older).
Your acceptance of unauthorized employment will not impact your ability to obtain permanent residence because that unauthorized employment will be considered “waived” at the interview.
Recipients of VAWA (Violence Against Women Act) filing for adjustment of status also qualify for this exception and will not be adversely affected by acceptance of unauthorized employment.
In addition, certain physicians and their families who are immigrating to the United States may also be exempt, as well as certain U.S. service members who are in the military and are in the process of adjusting their status.
In this video attorney Jacob Sapochnick will discuss a very important topic: can a step-parent, who is a U.S. Citizen, petition for a step-child to immigrate to the United States?
USCIS takes the position that as long as the marriage between the U.S. Citizen and foreign national takes place before the child turns 18, that child can immigrate to the United States on the same I-130 petition.
This situation arises where the U.S. Citizen’s foreign spouse has children from a previous marriage, and the U.S. Citizen is interested in petitioning for the child to immigrate along with the foreign national spouse.
If the child is older than 18 at the time of the marriage between the U.S. Citizen and foreign national takes place, the child must find an alternative means of obtaining permanent residence.
The location of the marriage does not matter, rather the child’s age at the time of the marriage is what is key here.
For more information about this topic please click here.
In this video attorney Jacob Sapochnick talks about your options, as a U.S. Citizen, if you have just discovered that your foreign spouse used you to obtain a green card.
When such a case arises, and we are representing the U.S. Citizen who has just discovered that they have been defrauded, we advise our client to seek outside counsel. We cannot advise our client on how to proceed if we have filed the case because providing such advise creates a conflict of interest.
If our office did not file the green card petition, then it is possible for us to assess the U.S. Citizens options by having a consultation and discussing the situation at hand.
Have you ever wondered what is bona fide marriage and what is the evidence required to establish bona fide marriage? In this video attorney Jacob Sapochnick will explain how you can go about proving bona fide marriage.
When applying for adjustment of status based on marriage, the foreign national must prove to USCIS that they have what is called a “bona fide” marriage, meaning that the couple has entered the marriage for love, and not solely to obtain an immigration benefit. USCIS requires the applicant to meet their burden of proof of bona fide marriage to prevent green card fraud.
There is certain documentation that must be provided to prove that the couple has a bona fide marriage. This documentation can be provided with the filing itself, or at the time of the green card interview.
What type of documents are required to show bona fide marriage?
Evidence of Cohabitation: to show bona fide marriage, the couple must show that they have been living together throughout the marriage. The types of documents that can establish cohabitation are lease agreements, property deeds, and secondarily utility bills (electricity bill, water bill etc.).
Evidence of Commingled Finances: in addition, the couple must provide evidence of commingled finances such as joint bank account statements showing activity on the account such as payments for rent, food, groceries, and regular household items.
Joint Ownership of Assets: if the couple has any assets held in both of their names such as real property, an automobile, ownership of stocks or bonds etc. they may provide evidence of such assets.
Other Joint Documents: The couple may also provide life insurance policy documents, health or auto insurance, or joint memberships in a club such as gym membership.
Photographs: The couple must present photographs of themselves with friends and family members throughout their relationship to show that they have a legitimate marriage.
Trips: the couple may choose to show evidence of trips or other activities they have undertaken throughout the marriage as proof of bona fide marriage.
In this video attorney Jacob Sapochnick discusses how to respond to a Notice of Intent to Deny (NOID) after a marriage fraud interview also known as the STOKES interview.
Overview:
As part of the I-130/485 application process to obtain a green card based on marriage, the couple must attend an in-person interview before USCIS to prove that they have a bona fide marriage.
During this interview the immigration officer must determine whether the marriage is in fact legitimate or whether the foreign national entered the marriage solely to obtain an immigration benefit.
If all goes well, the couple is approved following the initial interview.
If the immigration officer suspects fraud or is not convinced that the marriage is legitimate, the couple will be scheduled for a second interview or “STOKES” interview.
In this video attorney Jacob Sapochnick explains the differences between the K-1 fiancé visa and a marriage visa.
What is the K-1 Fiancé Visa?
The K-1 visa is available to foreign nationals who are engaged to U.S. Citizens only. K-1 visas are also reserved for foreign fiancées, who do not have any other means of coming to the United States. A K-1 visa holder must marry the U.S. Citizen fiancé/fiancée within ninety days of entry to the United States or else the alien must leave the country.
If the foreign fiancé does not intend to marry the U.S. Citizen within ninety days of arriving to the United States, then the K-1 fiancé visa is not a good option.
The K-1 fiancé visa is a good option for couples who want to spend time together in the United States before getting married.
The fiancé visa process is typically much faster than the marriage visa process.
Marriage Visa
Spouses Overseas: U.S. Citizens and Legal Permanent Residents may file Form I-130 on behalf of a foreign spouse residing abroad, so that the foreign spouse can apply for a marriage visa through the U.S. Consulate in their home country. Spouses of Legal Permanent Residents must wait for a visa to become available to them, before proceeding with the marriage visa application process.
Spouses within the U.S.: If the foreign spouse of a U.S. Citizen is residing inside of the United States on a valid visa type, then the foreign spouse can file Form I-130 and Form I-485 to adjust their status permanent residence at the same time.
The marriage visa application process is generally longer than the fiancé visa process, while adjustment of status for spouses residing within the United States is shorter than the fiancé visa process (typically 4-7 months processing time).
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