Articles Posted in Common Mistakes

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Here at the Law Offices of Jacob J. Sapochnick we like to celebrate our client’s successes. From our staff members to our attorneys, we are with you every step of the way on your immigration journey. Every client has a story, and it is these stories that inspire us to deliver the best service every day to achieve optimum results for our clients.

Several months ago a client visited our office after she received a denial for an N-400 application for naturalization that she had filed on her own early last year. Our client was an elderly woman seeking a waiver of the English language and Civics requirement of the N-400 application for naturalization on the basis of her disability. The issue in this case was that our client had various medical diagnoses that greatly impaired her cognitive abilities and by extension her capacity to learn. Due to these conditions, our client would not be able to successfully pass the English language and Civics component of the N-400.

In order to seek a waiver of the English language and Civics requirement, on the basis of physical or mental disability, Form N-648 must be properly completed by a licensed medical professional, who can attest to the applicant’s physical or mental disabilities. After consulting with the client and reviewing the paperwork that had been previously submitted to USCIS, we discovered that the Form N-648 was unsatisfactorily completed. The medical professional that had completed this form on our client’s behalf did not adequately explain the origin, nature, and extent of our client’s disability. The medical professional did not provide any documentation to support the explanation of our client’s medical condition, including such evidence as medically acceptable clinical or laboratory diagnoses to bolster the report. Most importantly, the medical professional failed to explain how the origin, nature, and extent of our client’s medical condition was so severe that they rendered her unable to learn or demonstrate English proficiency and knowledge of U.S. history and government.

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27512994306_54f949109a_zDuring November 2015, a couple came to our office seeking legal assistance, after having filed the adjustment of status application on their own, and attending their initial green card interview without legal representation. The couple visited our office seeking legal representation for their second interview before USCIS, also known as the ‘STOKES’ interview. At the conclusion of their initial interview, the couple were given a request for evidence by the immigration officer.  The Request for Evidence asked the couple to prove that the Beneficiary entered the marriage in good faith, and not for the purposes of evading the immigration laws of the United States. The couple responded to the Request for Evidence, providing documents in support of their bona fide marriage, to establish that they did indeed enter the marriage in good faith. In their response, the couple provided 21 items of evidence including photographs together, lease agreements as proof of cohabitation, and other bona fides such as joint utility bills and affidavits from the Petitioner’s parents, attesting to the couple’s bona fide marriage.

Despite producing such evidence, the immigration officer found the documents provided as evidence of cohabitation and marital union unconvincing. Additionally, the immigration officer found that the testimony given during the initial interview was unconvincing. Due to this, the immigration officer scheduled the couple for a second interview to discuss their relationship in more detail. The couple came to our office seeking guidance and representation at this second interview. The second interview is commonly referred to as the ‘STOKES’ interview. At the time of the second interview or ‘STOKES’ interview, the couple is questioned separately by an immigration officer regarding the details surrounding their marriage and relationship. A ‘STOKES’ interview is typically scheduled when an immigration officer suspects that the marriage is a ‘sham marriage’ entered for the purpose of obtaining an immigration benefit. During the ‘STOKES’ interview the immigration officer probes the couple on the intimate details of their relationship. The ‘STOKES’ interview is very taxing on both the Petitioner and Beneficiary. Some ‘STOKES’ interviews have lasted anywhere form 8-10 hours depending on the complexity of the case. Due to this, it is strongly recommended for an attorney to be present with the couple during a ‘STOKES’ interview.

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Before filing your green card application, it is important for you to carefully consider several important factors that may limit your ability to obtain employment in the United States and restrict your international travel. If you will be filing your green card application in the near future, you need to be prepared to remain in the United States for a period of at least 90 days, from the date of filing of your green card application. Applicants must also be aware that they will not receive authorization to work in the United States until this 90-day period has passed. Limited exceptions exist which may allow an applicant to expedite the adjudication process of the employment and travel authorization applications which we will discuss below.

Why the 90-day restriction period?

As part of the green card application, the applicant may file the I-765 Application for Employment Authorization and the I-131 Application for Travel Document at no additional cost. The I-765 and I-131 applications result in the issuance of a one-year temporary employment and international travel authorization card (EAD), while the green card application is being adjudicated by USCIS. It takes on average 90 days for the EAD card to be issued, from the date of filing of the green card application. This ultimately means that once you apply for permanent residence, you will not be able to seek employment or travel outside of the country until the EAD card is issued to you within 90 days. Once the green card application has been filed with USCIS, the applicant is restricted from any international travel. If the applicant travels without authorization, USCIS will consider the applicant’s green card application ‘abandoned.’ An applicant may only travel internationally if they have received a re-entry permit issued by USCIS known as an ‘advance parole’ document. The ‘advance parole’ notice will appear on the front of the EAD card itself signifying that the applicant is authorized to travel internationally using the card.  The ability to re-enter the United States after returning from temporary foreign travel is ‘discretionary.’ This means that even if you have been issued an EAD card that allows you to travel, it will ultimately be up to the customs official to admit you into the United States.

Consider the alternatives

Before applying for your green card you should carefully consider whether these travel and employment restrictions will have a significant impact on your lifestyle. If the travel restrictions are concerning to you, it may be a more beneficial option for you to apply for an immigrant visa from a U.S. Consulate abroad. There are no travel restrictions for applicants who apply for immigration benefits from abroad. Likewise, if you are concerned that you will not receive employment authorization immediately, it may be worth considering applying for a dual intent work visa first to cover any gaps in employment. There are limited work visa categories that allow for dual intent, or the intent to have a temporary visa status at the same time as having the intent to remain permanently in the United States. If this is the case, you should consult with an attorney to discuss your options.

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Did you know that if you fail to provide USCIS written notice of a change of address, within 10 days of moving to your new address, you may be convicted of a misdemeanor crime?  If you currently have a case pending with USCIS, and you fail to provide written notice of a change of address to USCIS, within 10 days of moving, you could face a fine of up to $200, imprisonment up to 30 days, or both if convicted. If you are an alien (non U.S. Citizen) you could also face removal from the United States for non-compliance (INA Section 266(b)).

It is extremely important for applicants to notify USCIS immediately upon moving to a new address. Filing a change of address with USCIS is easy and it’s free. Applicants may change their address online by visiting the USCIS website and completing Form AR-11 online. In order to file a change of address online, you must know the Receipt Number (appearing on the Notice of Action) associated with your application, if your application is currently pending with USCIS. A Receipt Number is also known as the case number, identifying the petition submitted. The Receipt Number typically begins with three letters and is followed by ten digits.

The first three letters of the Receipt Number indicate the USCIS service center which is processing the petition, as follows:
– EAC – Vermont Service Center;
– WAC – California Service Center;
– LIN – Nebraska Service Center; and
– SRC – Texas Service Center

If you have filed more than one petition with USCIS (as in cases of adjustment of status for spouses of U.S. Citizens) you must provide the receipt number of each petition you have filed, when submitting the change of address online. If you do not have your receipt notice or have lost it, you should contact USCIS National Customer Service Center by telephone for assistance:

Our number is: 1 (800) 375-5283
Our TTY number is: 1 (800) 767-1833

If you are outside the United States and have filed an application or petition with a USCIS Service Center, you can call 212-620-3418 to check the status of your case.

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8168034654_b59a79c5ba_bConditional Permanent Residence

If you have received a two-year conditional permanent resident card, based on your marriage to a United States citizen, you are required to remove the conditions on your green card before the expiration date, by filing the Form I-751 Application for Removal of Conditions jointly with your spouse. Many clients often ask, “how do I know if I am a conditional permanent resident?” You will know if you are a conditional permanent resident if your green card contains the abbreviations ‘CR’ under the immigrant ‘category.’ Foreign spouses of US Citizens will be able to locate the abbreviation ‘CR 6’ on their green cards. If this abbreviation applies to you, you must file the I-751 removal of conditions application jointly with your spouse, within the 90-day window immediately before your conditional green card expires. For example, if your two-year green card expires on August 7, 2016, the earliest day to file your removal of conditions application would be May 9, 2016 up to the date of expiration. If you are no longer married to the US Citizen spouse through which you gained conditional permanent residence, you may seek a waiver of the joint filing requirement and file the application alone.

Proper and Timely Filing of the I-751 Removal of Conditions Application

USCIS must receive your properly completed removal of conditions application along with the filing fee, during this 90-day window, otherwise your application will be rejected if you do not have a legitimate reason for filing your application outside the deadline. If you are unsure of the time period in which you must file your I-751 application, you should consult with a licensed immigration attorney early on in the process. If you have decided to file the I-751 application on your own, without the assistance of an attorney, you must read the I-751 Form Instructions VERY CAREFULLY and contact the USCIS National Customer Service Line with questions.

Why do I need to file the removal of conditions application?

USCIS grants two-year conditional green cards to foreign spouses of U.S. Citizens, if the foreign spouse has been married to the US Citizen spouse for less than two years (on the date that they are granted permanent residence). Foreign spouses who have been married to their US Citizen spouse for more than two years (on the date they are granted permanent residence), receive permanent ten-year green cards. Permanent residents, as opposed to conditional permanent residents, do not need to file the I-751 removal of conditions application, because they already have been granted the ten-year green card.

Clients typically ask us; why must I file the removal of conditions application if I have already gone through the rigorous green card process with my spouse?

USCIS requires you to jump yet another hurdle in order to ensure that you have entered your marriage in good faith, and not to gain an immigration benefit. The I-751 therefore, is a fraud prevention mechanism for newly married couples, requiring them to prove that they did not get married to evade the immigration laws of the United States. As part of the removal of conditions application process, the couple must provide documented evidence showing that they have been living together from the date of marriage to the present (joint lease agreement), that the couple has commingled their finances during their marriage (joint income tax returns, joint bank accounts, joint insurances, joint loans, etc.), that the couple shares joint responsibility of assets and liabilities within the household (joint utility bills, joint insurance policies, joint financial responsibilities), and that the couple spends time together on a regular basis (photographs of the couple from date of marriage to present, phone records, e-mails, text-messages, social media correspondence, hotel/flight reservations, evidence of joint trips taken together, affidavits from friends and family members, etc.)

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For this series, we bring you our top tips for filing the perfect family-based adjustment of status application (I-130/485), as well as valuable tips concerning common mistakes to avoid when filing the adjustment of status application, from our in-house family-based legal assistant, Ms. Reagan Volkman. Ms. Volkman has worked with hundreds of clients from all over the world helping them file their adjustment of status packages from beginning to end. With her hard work and dedication, our office has enjoyed an unprecedented approval rate for these petitions.

Tip #1 Ensure accuracy on every form associated with the I-130/485, especially in regards to questions relating to criminal history and/or immigration violations

  • Double check every form to ensure that you have completed each form as thoroughly and accurately as possible, making sure all dates and social security numbers are correct.

REMEMBER: Dates should be written in the (mm/dd/yyyy) format unless otherwise stated on each form;

  • If information is unavailable/not applicable, note such on each form;
  • Review all the yes and no questions listed on pages 3-5 of form I-485. Be very careful when answering these questions and thoroughly explain any “yes” answers. These questions relate to criminal history and immigration violations (such as fraud, willful representation, or removal from the United States);
  • It is strongly advised that you seek counsel from an accredited attorney if you have any criminal history and/or have committed any immigration violations, as these issues may require you to file a waiver before seeking adjustment of status, or make you inadmissible;
  • If you have served in the military in any foreign country and/or have military training you must answer “yes” and provide the relevant information requested. For countries that require military enlistment we recommend to note that the service was ‘mandatory’ in the description;
  • If you have held a J-1 visa in the past, and have been subject to the two-year foreign residence requirement, but did not obtain a waiver, you must answer “yes” and provide the relevant information requested;

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What is the H-1B Visa? The H-1B visa is a work visa that is awarded on a lottery basis. The H-1B visa program allows American companies and/or qualifying organizations to employ foreign workers to fill specialty occupations temporarily. The foreign worker must posses a combination of education, specialized training, and/or experience that is equivalent to training acquired by the attainment of a U.S. bachelor’s or higher. The H-1B program was first enacted by Congress with the intention of helping American employers seek out distinguished foreign workers, possessing the skills and abilities necessary to perform the duties of the specialty occupation. The H-1B program has remained popular because it has allowed American employers to remain competitive and provides highly skilled foreign workers a path to permanent residence.

The provisions of the H-1B visa program allow qualified foreign workers to attain temporary employment having met specific requirements. H-1B visa recipients typically work in the STEM fields as scientists, engineers, computer programmers, software developers, business analysts, etc. although fashion models are also classified under the H-1B category.

USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2017 beginning April 1, 2016. April 7, 2016 is the absolute deadline to file an H-1B cap-subject petition. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

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Do’s and Don’ts

If you are considering applying for a temporary visitor visa to travel to the United States for purposes of leisure or to receive temporary medical treatment, there are several things you should be aware of. First, you should understand what you can do while on a temporary visitor visa and what you cannot do. You may travel to the United States on a visitor visa if your visit will be temporary. The proposed visit must be either for recreational purposes such as to visit your friends and relatives in the United States, receive medical treatment, attend a short course of study related to the nature of your trip, or to engage in activities of a fraternal, social, or service nature. You may not enroll in a course of study that exceeds your authorized duration of stay of is unrelated to the nature of your trip, and you may not seek employment during your stay. If approved, a visitor visa is generally authorized for a 6-month period which may be extended for an additional 6 months by filing Form I-539 Application to Extend/Change Nonimmigrant Status.

Does your country participate in the visa waiver program?

Before applying for a visitor visa , you should verify whether you are a citizen of a country that participates in the visa waiver program. Presently 38 countries participate in the visa waiver program, as shown below.

Andorra Hungary Norway
Australia Iceland Portugal
Austria Ireland San Marino
Belgium Italy Singapore
Brunei Japan Slovakia
Chile Latvia Slovenia
Czech Republic Liechtenstein South Korea
Denmark Lithuania Spain
Estonia Luxembourg Sweden
Finland Malta Switzerland
France Monaco Taiwan
Germany the Netherlands United Kingdom
Greece New Zealand

If your country of citizenship participates in the visa waiver program, you may not need to apply for a tourist visa at a US Consulate or Embassy abroad. If you have been previously denied a United States visa, the Electronic System for Travel Authorization (ESTA) will automatically deny your ESTA submission and you will not be eligible to travel under the VWP even if your country participates in the program. Note: The House of Representatives and the Senate is presently in talks to approve a bill that will block individuals who have traveled to Syria, Iraq, Iran, or Sudan during the last 5 years from using the visa waiver program.

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