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In this informational post we discuss the I-130 Consular Process for spouses. Consular processing refers to the process by which a U.S. Citizen immigrates their foreign spouse to the United States from abroad. Depending on the foreign spouse’s country of residence, and the volume of applications processed by USCIS, the National Visa Center, and the U.S. Consulate or Embassy where the foreign spouse will have their immigrant visa interview, the process to immigrate a spouse to the United States can take anywhere from 8 to 12 months. Consular processing is a complicated process. It is recommended that applicants obtain the assistance of an experienced attorney to file this type of application.

What is the first step involved in the process?

The first step involves filing the I-130 Petition for Alien Relative. This petition establishes that a relationship exists between the U.S. Citizen and intending immigrant. This petition thus is used for family-based immigration to the United States. A separate I-130 must be filed for each eligible relative that will immigrate to the United States including minor children of the foreign spouse. The filing and approval of the I-130 is the first step to immigrate a relative to the United States. Because this petition is filed by the U.S. Citizen petitioner, the foreign spouse does not need to wait until a visa number becomes available before applying for an immigrant visa at a U.S. Consulate/Embassy abroad. By contrast, if the petitioner is not a U.S. Citizen and is instead a Lawful Permanent Resident, an immigrant visa is not immediately available to the foreign spouse. Due to this, the foreign spouse must wait until their priority date becomes current according to the visa bulletin issued by the Department of State. The I-130 is accompanied by various supporting documents mostly biographical in nature. These documents include the signed forms, the filing fees, passport photographs of the petitioner and beneficiary, the petitioner’s proof of citizenship, a copy of the beneficiary’s passport ID page, copy of their birth certificate with a certified translation, and a copy of the marriage certificate. Once these documents have been compiled, the applicant mails them to USCIS for approval. USCIS takes approximately 4 months to process and approve this application. This time frame will depend on the volume of applications being processed by USCIS at the time of filing.

The National Visa Center Stage

Once the I-130 petition has been approved, USCIS will mail the petitioner a receipt notice known as the I-797 Notice of Action. This Notice of Action serves as proof that the I-130 petition has been approved, and more importantly indicates that the petition will be forwarded to the Department of State’s National Visa Center within 30 days. The National Visa Center is a government agency that conducts pre-processing of all immigrant visa petitions that require consular action. The National Visa Center requires the applicant to send various documents, before the application can be sent to the United States Consular unit where the foreign spouse will attend their immigrant visa interview. The NVC determines which consular post will be most appropriate according to the foreign spouse’s place of residence abroad, as indicated on the I-130 petition. Once the NVC has received all documents necessary to complete pre-processing of the immigrant application, the case is mailed to the consular unit abroad. From the date the I-130 has been approved, it takes approximately 30-45 days for the National Visa Center to receive the application from USCIS and begin pre-processing.

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In this segment, we answer 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. Do you want us to answer your question? Please submit your questions to us through our website, or our Facebook page. For more information on the services we offer please click here.

The Affidavit of Support: Using Assets to Supplement Income

Q: I will be petitioning my spouse for permanent residence soon and have a question about the affidavit of support. If I do not have the support of a joint sponsor and my income does not meet 125% of the federal poverty line, can I use my assets?

A: Yes, you may use your assets to supplement your income if your total income does not meet the income requirements of the 2016 HHS poverty guidelines according to your household size, as specified by the charts below. If your total income falls short, you may submit evidence to demonstrate the value of your assets, or the sponsored immigrant’s assets, and/or the assets of a household member with their consent. Not only can the assets of the petitioner, immigrant, or household member be used to supplement any deficient income, but the assets of these persons can be combined to meet the necessary financial requirement. In order to use assets, the total value of the assets must equal at least five times the difference between your total household income amount and the current Federal Poverty Guidelines for your household size. An exception exists for U.S. citizens sponsoring a spouse or minor child. In this case, the total value of the assets must only be equal to at least three times the difference. Not all assets may be used to supplement income. Assets that can be converted to cash within one year without hardship or financial harm may only be used to supplement income. The owner of the asset must provide a detailed description of the asset (if the asset is property, an appraisal can be included or online listing from a reputable website showing the estimated value of the asset), proof of ownership of the asset (title, deed, etc.), and the basis for the owner’s claim of its net cash value. If you are using your home as an asset, you must use the net value of your home (the appraised value minus the sum of all loans secured by a mortgage, trust deed, or other lien on the home). You may use the net value of an automobile only if you can show that you own more than one automobile, and at least one automobile is not included as an asset. Other examples of typical assets used to supplement income include property, 401k, IRA, mutual investment fund, etc.

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In this segment, we answer 5 of your most frequently asked questions received on our social media platforms and our website. Please remember that every case is different and every immigration journey is unique. You should not compare your situation to anyone else’s. We hope that our answers will provide you with further guidance while you embark on your immigration journey. If you have any further questions, please call our office to schedule a free first time consultation. We serve international clients and domestic clients in all 50 states. We thank you for your continued trust in our law office. For more information on the services we offer please click here.

Fiancé Visa

Q: I am a U.S. Citizen who is planning to marry a Moroccan citizen. I am interested in applying for the K-1 fiancé visa for him. The problem is that we have not met in person and it is hard for me to travel to his country because I am a single parent. I know one of the requirements for this visa is to meet in person. Are there any other visa options available to us since we have not met in person? I have heard of people obtaining waivers due to traveling hardships. Please advise.

A: Thank you for your question. This is a very common fiancé visa question. In order to file the K-1 fiancé visa you must meet the following requirements:

  • You (the petitioner) are a U.S. citizen.
  • You intend to marry within 90 days of your fiancé(e) entering the United States.
  • You and your fiancé(e) are both free to marry and any previous marriages must have been legally terminated by divorce, death, or annulment.
  • You met each other, in person, at least once within 2 years of filing your petition. There are two exceptions that require a waiver:
    If the requirement to meet would violate strict and long-established customs of your or your fiancé(e)’s foreign culture or social practice.

    2. If you prove that the requirement to meet would result in extreme hardship to you.

As indicated above there are only two exceptions that would allow you to seek a waiver of the K-1 visa two-year meeting requirement. The first requires the petitioner to demonstrate that compliance of the two-year meeting requirement would violate strict and long-established customs of either your fiancé’s foreign culture or social practice or of your own foreign culture or social practice. While it is difficult to prove this, it is not impossible, however the couple should be aware that substantial evidence is required to prove that either your or your fiancé’s culture explicitly prohibits you from meeting the two-year requirement. Of course this element is largely at odds with traditional Western norms and practices, therefore it is extremely difficult to explain to an immigration officer why you and your fiancé cannot meet in person before you are to be married.  This waiver should only be considered in very limited circumstances.

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At the Law Offices of Jacob J. Sapochnick we work closely with clients to address their specialized immigration needs, making their success our number one priority. Many of our clients have experienced immigration issues that could have easily been eliminated with the help of an experienced immigration attorney. Such was the case when our client, we will call him Ernesto, visited our San Diego office to discuss his naturalization case that had gone from bad to worse.

Ernesto had gained permanent residence through marriage to his U.S. Citizen spouse and was ready to apply for naturalization, having remained married to his spouse for at least 3 years before filing his application. Ernesto’s first problem was that he had relied on the assistance of a foreign attorney to prepare and file his application—an attorney who was not licensed to practice law in the United States and was not well versed in immigration law. The attorney had filed his naturalization application without carefully assessing his situation and pin pointing any potential issues he might experience. As a result of his foreign attorney’s incompetence, Ernesto’s application for naturalization was denied and his appeal—also filed by the foreign attorney– was also denied, leaving Ernesto in a very difficult position.

In the Notice of Intent to Deny Ernesto had received USCIS explained the reasons why he had been denied. The main issue was that USCIS was not convinced that he entered his marriage “in good” faith. Furthermore, USCIS argued that Ernesto had failed to present documented evidence proving that he had lived in marital union with his spouse for the 3 years preceding his examination. Due to the fact that USCIS had doubts about the legitimacy of the marital union, they conducted a home inspection at a time that Ernesto was not at his home. During the inspection, the field officers searched the bedroom he shared with his wife and discovered that his clothing was not present. Upon further examination, we found that the officers that conducted the home inspection failed to check the other bedrooms in the home and did not see that his clothing was located in an adjacent bedroom, and not in the room that he shared with his spouse. Ernesto had perfectly legitimate reasons for why he had not been at the home at the time of the inspection, and why his clothing was located in a different room of the house. Ernesto was a businessman and was typically out of town on business trips. On the particular day that the home inspection was conducted, he was out of town on a day business trip. Ernesto had also been traveling to the East Coast frequently for 4-5 months to pursue potential business investments and proposals, leaving his wife behind. Ernesto had been toying with the idea of starting a business on the East Coast, but was not certain if the plans would come to fruition, for that reason his wife had stayed behind across the country while he weighed his options. As a businessman, Ernesto maintained a non-traditional schedule that required him to work long hours, in addition to being apart from his wife. Due to the differences between his schedule and his wife’s schedule he decided to move his clothing to another bedroom so that he would not disturb his wife while he was preparing for his jam packed business schedule. In the end Ernesto’s business plans in the East Coast fell through and he returned to the state of California where he lived with his wife.

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Our clients often ask us what the difference is between adjusting their status within the United States versus applying for a green card at a United States consulate abroad. In order to adjust your status to permanent resident within the United States by filing Form I-485, you and your spouse must be living inside of the United States at the time of filing. The intending immigrant must also have entered the United States legally in order to adjust status within the United States, although there are few exceptions (as is the case of individuals who qualify for 245i). This means that generally, in order to qualify for adjustment of status, you must have been inspected by a U.S. Customs official at a United States port of entry. As part of the Adjustment of status process, the green card applicant must be able to prove that they were inspected upon entry by showing their I-94 arrival/departure record. The I-94 is a small white paper that is placed in the passport containing a stamp of admission with the date of entry, place of entry, the person’s name, I-94 number, and other important details.

I-94A

Sample I-94 arrival/departure record

If you did not receive a paper I-94 in your passport, you may obtain your I-94 electronically by visiting the DHS website.

Consular processing on the other hand is an option that is typically utilized for spouses of US Citizens residing abroad and/or foreign spouses who have never visited the United States, do not have a United States visa, or cannot obtain one, because they are already married to a US Citizen. Foreign spouses who are obligated to travel frequently such as businesspersons may also prefer to obtain an immigrant visa through ‘consular processing’ because this process does not prohibit international travel. Adjustment of status applicants on the other hand are prohibited from traveling internationally once the I-485 green card application has been filed, unless they have received travel permission from USCIS known as an advance parole document. If the applicant travels without this advance parole document, the I-485 application will be considered abandoned.

Advance Parole for Adjustment of Status Applicants

In order to receive this advance parole document, the applicant must file Form, I-131 Application for Travel Document at the same time as Form, I-485 in order to return to the United States after temporary foreign travel. If the applicant wishes to apply for a work permit they must also file Form, I-765 Application for Employment Authorization. There is no additional fee for the I-131,765 applications if the applicant has a pending I-485 application with USCIS. The I-131,765 applications take approximately 90 days to process from date of filing and culminate in a travel/work permit combo card known as the EAD (Employment Authorization Document). This document allows the applicant to work, travel, obtain a SSN number, and driver’s license. Consular Processing applicants do not receive any travel or employment authorization and cannot obtain a driver’s license or SSN until they have received their green card once they enter the United States with an immigrant visa.

Adjustment of Status Benefits

There are many benefits that come with adjusting your status within the United States however to qualify you and your spouse must be living in the United States and you must have been inspected upon entry to the United States (with few exceptions), otherwise you are not eligible to apply for adjustment of status within the United States. If you have committed any immigration violations or have a serious criminal history, you must consult an attorney.

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In a recent blog post, we told you all about the I-751 Removal of Conditions Application. In this segment we will briefly cover the basics of the I-751 Removal of Conditions Application and what you can expect one you have filed the application with USCIS.

Overview: 

The I-751 Removal of Conditions Application is filed by conditional permanent residents who gained their ‘conditional’ permanent resident status, based on their marriage to a United States Citizen or Legal Permanent Resident. An easy way to know whether you have been given a conditional green card is by checking the abbreviations that appear on your green card under immigrant ‘category.’ If your green card contains the abbreviation ‘CR’ under the immigrant category, then you are a conditional permanent resident. Additionally, if your green card was granted for only a 2 year period, then you have received a conditional green card.

Who must file the Removal of Conditions Application?

It is important to understand who must file the Removal of Conditions Application. If you are still married to the same person through which you gained your ‘conditional’ permanent residence (2- year green card), and you wish to obtain a 10-year permanent green card, you must file an I-751 application for removal of conditions jointly with your spouse. If you have divorced your spouse, you may still apply for removal of conditions on your own, however you must provide substantial proof of bona fide marriage. Applications that are filed by the ‘conditional’ permanent resident alone, are called I-751 waiver applications. Regardless of whether you will be filing the I-751 application with your spouse, or filing the I-751 waiver application alone, applicants must be prepared to demonstrate that they entered their marriage in ‘good faith’ and not for the purposes of evading the immigration laws of the United States. In other words, the additional process to remove the conditions on your permanent residence, is a fraud prevention mechanism to safeguard against sham marriages.

The removal of conditions application must be filed only by those individuals who were given a two-year conditional green card by USCIS. USCIS issues 2-year conditional green cards to foreign spouses (and LPRs) who have been married to a U.S. Citizen for less than to two years, on the date that the green card application is approved. Foreign spouses who have been married to their U.S. Citizen spouse for more than two years, on the date the green card application is approved, receive permanent 10-year green cards, and do not need to apply for removal of conditions.

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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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What is Adjustment of Status?

Adjustment of Status is the process by which a foreign national can change their immigration status from a temporary nonimmigrant to an immigrant (permanent resident), while in the United States. There must be a basis under which a foreign national can apply for adjustment of status. In most cases the foreign national must have an immediate relative who is a U.S. Citizen or have an employer willing to file an immigrant petition on their behalf.

Generally, a foreign national can apply for adjustment of status, if they were inspected by a customs official at a United States port of entry and admitted or paroled into the United States, and meets all requirements to apply for a green card (permanent residence). The Immigration and Nationality Act (INA) allows an eligible foreign national already living in the United States with their U.S. Citizen spouse, to obtain permanent resident status without having to return to their home country to apply for an immigrant visa at a United States consulate abroad. Spouses of U.S. Citizens are eligible for adjustment of status to permanent residence once the US Citizen spouse files a petition on their behalf called the I-130 Petition for Alien Relative. The I-130 Petition for Alien Relative is typically filed at the same time (concurrently) as the I-485 Application to Register Permanent Residence or Adjust Status. For immigration purposes, the intending immigrant (or foreign national) is referred to as the ‘beneficiary’ of the application, while the U.S. Citizen spouse is referred to as the ‘petitioner’ of the I-130 application. The petitioner allows the beneficiary to apply for adjustment of status on the basis of their marital relationship (established with the filing of the I-130 Petition).

In general, most immigrants become eligible for permanent residence once an immigrant petition is filed on their behalf by either a qualifying family relative (I-130 Petition) or through an employer (I-140 Petition) although there are special categories of green card applicants that exist. Unlike distant relatives of U.S. Citizens and alien workers, spouses and immediate relatives of U.S. Citizens are not subject to any visa limitations. This means that they do not need to wait in line to receive permanent residence; an immigrant visa is immediately available to them and there are no quotas. The process of immigrating a foreign spouse through adjustment of status takes approximately 4-6 months depending upon the volume of adjustment of status application being processed by USCIS at the time of filing, and the amount of applications waiting in line for an interview at your local field office.

Spouses of U.S. Citizens residing abroad are not eligible for adjustment of status

For spouses of U.S. Citizens residing abroad, adjustment of status is not an option because the intending immigrant and U.S. Citizen spouse must be living together in the United States in order to apply. Instead, spouses of U.S. Citizens who are living abroad must resort to consular processing, in order to obtain an immigrant visa and permanent residency. Consular processing is also utilized to immigrate a foreign spouse who is ineligible to adjust status, for example in the case where the foreign spouse entered the United States illegally.

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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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