Articles Posted in Family Visas

When same-sex marriage became a reality in some countries, the state of Massachusetts, and for a short period of time in California, the big question for many was whether a U.S. citizen or legal permanent resident who married a person of the same sex would be deemed to be legally married in the United States for federal immigration law purposes.

The question arose as to whether a U.S. citizen or legal permanent resident would be able to marry in one of these jurisdictions and thereby petition the U.S. Citizenship and Immigration Services to have his or her spouse immigrate as an alien relative. The answer to this question at present is “no”.

If federal courts are given the opportunity to rule on a challenge to a denial of an I-130 petition submitted by a same-sex couple, they may do little more than cite the Defense of Marriage Act (DOMA). DOMA provides in part, that a marriage is defined as a union between a man and a woman for all federal law purposes. At present the U.S. government is under no legal obligation to give effect to a foreign marriage between persons of the same sex.

We had quite a few inquiries this past week about K visas. Clients often mix the different K categories. Here is a brief summary for our confused readers.

On December 21, 2000, President Bill Clinton signed into law the Legal Immigration Family Equity Act (LIFE Act). The Life Act made K status available to spouses and children who are the beneficiaries of pending or approved Form I-130 immigrant relative petitions.

Subsequently, the Life Act was amended, thereby expanding the K category to include spouses and spouses’ children of U.S. citizens who are waiting outside the United States after filing of an immigrant relative petition. The spouses of U.S. citizens under K status are now classified as “K-3”, and the children of such spouses as “K-4”. The K-3 and K-4 visas have specific requirements for filing due to the different nature of the petitions.

From time to time we update our local readers about procedures affecting cases here in San Diego. This is from our local AILA liason meeting update. These procedures may apply in other states as well.

1. INFOPASS appointments for paying filing fees and fingerprint re-scheduling.

USCIS prefers that customers make INFOPASS appointments to visit USCIS offices to schedule re-fingerprinting or to pay fees and file applications. USCIS will accommodate someone without an appointment if there is an emergency such as a deadline for the filing of a motion to reopen or re-consider with the immigration court. A guard in Chula Vista will speak with a USCIS officer to allow you in the building to consider your emergency requet. USCIS points out that same-day INFOPASS appointments are usually available for the San Diego office to re-schedule biometrics. Biometrics can also be re-scheduled by mail. Note that filing fees can only be paid at the Chula Vista office.

Breaking news from the State Department. The online entry registration period for DV-2011 will be October 2 until November 30, 2009. Please, check back later for updates and instructions regarding online entry for DV-2011.

Form DS-5501 Electronic Diversity Visa (e-DV) Application for online Diversity Visa Lottery entry, is not available now. This official form is available only on the Department State, Diversity Visa online entry website at http://www.dvlottery.state.gov/ during the online entry registration period.

The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). Alien petitioners for the Diversity Visa Program will no longer be permitted to submit a petition by mail. Instead, the Department will require that all petitions be submitted to it in an electronic format, using an Internet website dedicated specifically to the submission and receipt of Diversity Visa.

The State Department released the October Bulletin last week, the news are not so good overall.

The EB3 category is now available, but many priority dates go back to 2001 and 2002, still long waiting period for many applicants.

EB2 China advanced 2.5 months, while India priority dates move by 14 days only. EB4 category is still unavailable.

From time to time, we are providing more information about the above referenced process. Although it may seem to be simple, we suggest you to consult a qualified immigration attorney before filing the application to become a permanent resident based on marriage to a US Citizen.

Prior to submitting the forms to Department of Homeland Security, there are 10 simple technical tips to follow for proper filing. They are as follows:

1. Use the most current edition of the form available on the USCIS Website; (www.uscis.gov)

Previously we reported about the new procedures affecting surviving spouses of US petitioners that passed away. Now the Vermont Service Center issued some guidance on the procedure for making a request for humanitarian reinstatement of I-130 petitions that have been revoked based on the death of the petitioner.

The process for requesting humanitarian reinstatement consideration begins with the
notification to either the Service Center or the National Visa Center of the death of the
petitioner. If the death certificate is accompanied by a letter indicating that the beneficiary wishes to be considered for humanitarian reinstatement, the Service Center will respond with a letter confirming that the petition has been automatically revoked (8 CFR 205.1(a)(3)(C)). The letter then provides a list of requirements that must be met to have the petition considered for humanitarian reinstatement under 8 CFR 205.1(a)(3)(C)(2).

In order for the reinstatement to be considered, the following documents must be provided:

The request for reinstatement must be in writing by the beneficiary of the original petition or
substitute sponsor if the beneficiary is a minor child.

– Provide as much available documentation to identify and document the humanitarian reason for reinstatement. Such documentation may include, but is not limited to:
a. Evidence of a long-time residence and any equity in the U.S.

b. Evidence of relationship to other family members with evidence of their immigration status in the U.S.

c. Evidence of health-related factors that would establish the need for the reinstatement of the petition.

d. Evidence of current political or religious conditions in the beneficiary’s country of origin that would indicate that the beneficiary would suffer if not permitted to immigrate to the U.S.

Please note: Economic depression, as is found in many regions of the world, is not considered to be an example of a harsh result contrary to the goal of family reunification unless it is of such an extreme nature as to possibly cause physical harm to the beneficiary.

– The new sponsor is required to submit an original Form I-864, Affidavit of Support, to show that he or she has adequate means of financial support and that the beneficiary of the petition is not likely to become a public charge.

a. The substitute sponsor must complete the Form I-864, Affidavit of Support.

b. The Form I-864 must contain an original signature of the sponsor.

c. The new sponsor must be an immediate family member or a legal guardian of the
beneficiary, such as a spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild child at least 18 years of age.

d. Submit evidence that will establish the new sponsor’s immigration status or U.S. citizenship.

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Finally some good news coming from USCIS. The Immigration Service today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse’s death; did not remarry; and are currently residing in the United States. Until this Memo there has been a lot of confusion in this area of law.

Until there is a legislative solution to remedy the situation commonly referred to as the “widow penalty,” USCIS is providing interim administrative relief in the form of deferred action to surviving spouses whose U.S. citizen spouses died before the second anniversary of their marriage. The “widow penalty” prevents widow(er)s of deceased U.S. citizens, who were married less than two years at the time of the U.S. citizen’s death, from becoming permanent residents based on the marriage. Under this action USCIS also will consider favorably requests for humanitarian reinstatement where previously approved petitions for widow(er)s had been revoked because of the law.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I- 130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a “qualifying child” of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried. Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center. Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.

Any Immigration attorney with clients from the Philippines, China and Mexico, knows about the suffering of families from these countries due to the lengthy visas backlogs. Now immigrants across the country are suing the federal government to try to get their adult children into the country without another lengthy waits, sometimes decades.

Under U.S. immigration law, children 21 and older cannot immigrate under their parents’ applications for green cards. Under the Child Status Protection Act of 2002, aimed at preventing children from “aging out” due to lengthy processing times, means these grown children should be allowed into the country soon after their parents file new paperwork on their behalf. But the government argues that many of those who aged out during the wait are now new applicants and must start from the beginning. They want them to start all over, this will result in many years of wait for these relatives.

The waiting crisis resulted in other social crisis. The dilemma has prompted many immigrant parents to urge their adult children to remain single while the lawsuits are pending or until they get green cards. That’s because permanent residents cannot apply for their married children to get green cards and must wait to become U.S. citizens to be able to do so.

From time to time we like to share stories about cases that were resolved successfully. We do this to educate our clients, and bring hope to many others in the same situation.

This is a story about an American guy that fell in love with a girl from Ukraine. The problem was that the girl from Ukraine entered the US illegally. As a result, even marriage to the US citizen guy, could help her to stay. Absurd, but true. So the only way for the spouse to become legal one day, way to depart the US and face the US Embassy abroad, by seeking a waiver.

An Application for Waiver of Grounds of Inadmissibility (Form 601) becomes necessary when a visa applicant has been determined to be “inadmissible” based on one more visa ineligibilities.