Visa Lawyer Blog

Articles Posted in Permanent Residents

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On Saturday, September 22, 2018, the Department of Homeland Security announced a new proposed rule that may prevent non-citizens reliant, or likely to become reliant on public benefits, from gaining admission to the United States.  The new proposal entitled, “Inadmissibility on Public Charge Grounds,” has been signed by the Secretary of Homeland Security, and the proposed rule is expected to be published in the federal register in the coming weeks, according to a DHS press release.

APA Procedure

Once the proposed rule has been published in the federal register, the government must allow the public to comment on the proposed rule for a 60-day period. Once that period is over, the government will have the opportunity to review comments and make changes if necessary to the proposed rule. Thereafter, the government will publish a final rule which will become law 60 days after the date of publication.

Who is a Public Charge?

Under the Immigration and Nationality Act, a public charge is defined as an “alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Such aliens are not admissible to the United States on public charge grounds.

Applicants seeking admission to the United States should be aware that, “an alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for support, and who has no person in the United States willing and able to assure the alien will not need public support, generally is inadmissible as likely to become a public charge.”

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In this post, we will discuss our top ten tips to help you survive the marriage fraud interview also known as the “STOKES” interview. An applicant filing for adjustment of status to permanent residence may be scheduled for a second interview, known as the “STOKES” interview if the immigration officer is not convinced at the initial I-485 interview that the applicant has a bona fide marriage.

  1. Be Honest

Our first tip to avoid being scheduled for a second interview also known as the STOKES interview is simple. Be honest with yourself, with your partner (the U.S. Citizen or LPR spouse), and your attorney if you have one. Before walking into your initial I-485 interview you should be careful not to misrepresent the facts in your relationship and ensure that you and your partner are both being honest and truthful regarding all aspects of your marriage. If you or your spouse misrepresent any facts about your relationship, the immigration officer will presume that you do not have a bona fide/genuine marriage, and it will be very difficult to overcome this presumption at the second interview.

  1. Preparation

The second tip to avoid the STOKES interview is to be well prepared. You and your spouse should prepare all of your documentation proving bona fide marriage well in advance of your I-485 interview, so that you have enough time to review your documentation with your spouse and your attorney in preparation of your interview. This well make you feel more confident and prepared when it comes time to your I-485 interview.

  1. Never Lie, Misrepresent, or Provide False Information

If you do not know the answer to a question asked by an immigration officer, DO NOT under any circumstances LIE, MISREPRESENT, or provide FALSE information. If you do not know the answer, simply tell the officer that you do not know. Always be honest. If you are not honest with an immigration officer this will indicate not only that you are a person of bad moral character, but that you are committing fraud in order to obtain an immigration benefit. Do not under any circumstances, invent facts that are not true. Remember that immigration has various tools to uncover fraud including the ability to visit you and your spouse at your home unexpectedly if they believe that you are lying or are not being honest about your marriage.

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Beginning next year, the United States Citizenship and Immigration Services (USCIS) will launch a task force located in Los Angeles, designed to identify, detect, and prosecute individuals who have fraudulently gained United States Citizenship, for example by entering into a ‘sham’ marriage to obtain permanent residence, or engaging in other fraudulent activity, such as using a false identity to apply for permanent residence and/or naturalization.

USCIS has already begun to process of hiring lawyers and immigration officers who will review cases of individuals who have been deported, who the agency believes may potentially use a false identity to obtain permanent residence and/or citizenship. Such cases will be referred to the Department of Justice, who will then initiate the removal of individuals who have committed immigration fraud.

Of the denaturalization task force, USCIS Director L. Francis Cissna told reporters, “We finally have a process in place to get to the bottom of all these bad cases and start denaturalizing people who should not have been naturalized in the first place. What we’re looking at, when you boil it all down, is potentially a few thousand cases.”

The denaturalization task force will be funded by immigration application filing fees. The denaturalization task force will be primarily focused on targeting individuals who have used false identities to obtain immigration benefits.

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that will have wide ranging implications for immigrants. Beginning September 11, 2018, USCIS will use their discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.

The new policy memorandum “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” supersedes the 2013 policy memorandum titled “Requests for Evidence and Notices of Intent to Deny” which previously governed an officer’s discretion to deny an application, petition, or request without first issuing a request for evidence. Previously, the 2013 memo required requests for evidence to be issued where the initial evidence was unsatisfactory or did not establish the applicant’s eligibility for the benefit requested.

As of September 11, 2018, USCIS now has the power to deny petitions lacking initial evidence without sending a Request for Evidence or Notice of Intent to Deny to cure the defect. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided sufficient evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the defect.

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In this post we discuss the top five most common reasons your adjustment of status application may be denied.

Financial Reasons

One of the requirements to receive adjustment of status in the United States is to prove that the petitioner (the U.S. Citizen or LPR spouse) has sufficient income or assets to support you based on the petitioner’s household size when filing the I-864 Affidavit of Support. The petitioner must meet at least 125% of the U.S. poverty guidelines in order to sponsor the beneficiary of the adjustment of status application. If the petitioner does not meet that income requirement, they may be able to use assets such as properties, a 401(k), mutual investment fund, ownership of stocks, ownership of two or more automobiles to supplement their income. However, if the petitioner will be using the value of their assets to supplement their income, the total value of the assets must be equal to at least three times the difference between the total household income and 125% of the U.S. poverty guidelines for their household size. For an example of how to use assets to supplement income, please review the I-864 affidavit of support instructions.

If the petitioner does not meet the income requirement and cannot supplement the shortage with their assets, they must obtain a joint sponsor who does meet 125% of the U.S. poverty guidelines based on their income. A joint sponsor can be anyone that is a U.S. Citizen or LPR that satisfies the poverty guidelines.

One of the most common reasons for a denial of the adjustment of status application is that the petitioner and/or joint sponsor does not meet the required income requirement. Failure to respond to a request for evidence with satisfactory evidence will mean a denial of the application, even before the couple gets to the interview stage.

Public Charge

If USCIS believes that the beneficiary will likely become dependent on the U.S. government for long-term care or financial support, the green card application will be denied. USCIS reviews the I-864 affidavit of support and income documentation closely to determine whether the beneficiary is likely to become a public charge. Factors that may be considered to make this determination include the total income of the petitioner, the joint sponsor, assets, resources, and general financial status at the time of filing.

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In this post, we share with our readers the top five things you need to know before applying for the I-751 Petition to Remove Conditions on Residence.

  1. You must file the I-751 Removal of Conditions if you were granted Conditional Resident status (a 2-year green card) based on marriage to a U.S. Citizen or lawful permanent resident

A conditional permanent resident receives a green card that is valid for a 2-year period. Conditional permanent residence is given to foreign nationals who have been married for less than 2 years, on the day that the application for permanent residence was approved. Conditional permanent residents have “conditional” status instead of “permanent” resident status, because they must prove that they did not marry the US Citizen or LPR spouse solely to obtain an immigration benefit. These individuals must go through the additional hurdle of filing Form I-751 Petition to Remove Conditions on Residence to obtain a permanent resident card (10-year green card).

  1. You must file the I-751 petition in a timely manner

The I-751 Petition to Remove Conditions on Residence must be filed during the 90-day window immediately before the conditional residence will expire (see the conditional green card’s expiration date and subtract 90 days).

  1. Consequences of Failing to File

If you fail to remove your conditions before the 90-day window closes, you will automatically lose your permanent resident status on the second anniversary of the date you were granted conditional status. You are then subject to removal from the United States. You may only file an I-751 petition after the expiration date of your conditional residence if you demonstrate that your delay in filing the petition was due to extraordinary circumstances beyond your control

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In this post, we share with our readers the top five things you need to know before filing for citizenship.

  1. You must be a lawful permanent resident of the United States for a required period of time to apply for citizenship

In order to apply for citizenship, you must be a lawful permanent resident of the United States for a specified period of time. The period of time you must wait before filing for citizenship depends on how you acquired your permanent residence.

If you acquired your permanent residence based on marriage to a United States Citizen spouse, and you are still married to that individual, you may apply for citizenship once you have reached a 3-year period of continuous residence as a legal permanent resident.

If you are no longer married to the U.S. Citizen spouse through which you gained your permanent residence, or if you did not gain your permanent residence based on marriage, you may apply for citizenship once you have reached a required 5-year period of continuous residence as a legal permanent resident.

  1. You must demonstrate that you have been physically present in the United States and maintained continuous residence for a required period of time in order to file for citizenship

Physical Presence

In order to apply for citizenship, you must demonstrate that you have been physically present in the United States for at least 30 months in the 5 years preceding your citizenship application.

Continuous Residence

In addition, you must demonstrate that you have maintained continuous residence in the United States for a 3- or 5-year period depending on how you obtained your permanent residence. This means that you must not have taken any trips outside of the United States that lasted more than 6 months out of the year in the 5 years preceding your citizenship application. Trips outside of the United States include trips taken to Mexico.

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In this post, we discuss the top five reasons applicants are denied at their citizenship interview.

First let’s go over some basics:

In order to become a United States Citizen, you must meet the following general requirements at the time of filing your N-400 Application for Naturalization:

 

You must be:

  • A lawful permanent resident
  • At least 18 years of age
  • Maintained continuous residence in the United States since becoming a permanent resident
  • Be physically present in the United States
  • Have certain time living within the jurisdiction of a USCIS office
  • Be a person of Good Moral Character
  • Have Knowledge of English and U.S. Civics with some exceptions outlined below
  • Declare loyalty to the U.S. Constitution

As part of the citizenship interview, applicants must pass a civics and English test in order to receive United States Citizenship. The Civics test is an oral examination provided in the format of Question and Answer by an immigration officer in which the officer tests your knowledge of United States history and government. During the Citizenship interview, the USCIS officer asks the applicant up to 10 out of 100 civics questions provided by USCIS on their website as part of the study material for the examination. Applicants must answer 6 out of 10 questions correctly to pass the civics portion of the naturalization test.

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On Friday, March 30, 2018, the Department of State published a 60 day notice in the Federal Register entitled “Notice of Proposed Information Collection: Application for Immigrant Visa and Alien Registration,” proposing to require immigrant visa applicants to submit five years of social media history as part of the information requested on the DS-260 Immigrant Visa Electronic Application used by applicants to schedule Immigrant Visa interviews at U.S. Embassies and Consulates worldwide. The DS-260 is an Electronic Form that is completed by immigrant visa applicants and used by consular officials to determine whether the applicant is eligible for an immigrant visa.

Specifically, the Department wishes to, “add several additional questions for immigrant visa applicants. One question lists multiple social media platforms and requires the applicant to provide any identifies used by applicants for those platforms during the five years preceding the date of the application.”

Information provided by immigrant visa applications relating to their social media will be used to enhance “vetting” of applicants to verify their identity, ensure that they meet all visa eligibility requirements, and to prevent individuals from entering the country who pose a threat to the county’s national security, or have been associated with a terrorist organization.

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Andrew, a real estate professional and Vice President of a large real estate firm headquartered in Asia, came to our office to discuss the possibility of filing for an EB-2 National Interest Waiver. To receive a national interest waiver, the applicant must demonstrate a high level of achievements and unique skills pertaining to their position to justify a waiver of the requirements of a job offer and labor certification filing.

The challenge in Andrew’s case was the absence of demonstrated achievements in the real estate business, and various non-disclosure agreements the client had signed restricting the documentation he could provide to demonstrate his exceptional ability in the industry, based on the high net worth projects he had worked on in the real estate industry. There were however other strengths that Andrew possessed that would qualify him for the national interest waiver. Andrew possessed a law degree from his home country, a master’s degree in taxation, a master’s degree in real estate from an ivy league university, and he was licensed to practice law in the United States. In addition to possessing these advanced degrees, two of which were received in the United States, Andrew’s career in the real estate sector spanned nearly 21 years.

The difficulty however remained in that Andrew did not have many documents to present to USCIS demonstrating his achievements as an entrepreneur and real estate investor, and the projects he was working on could not be disclosed based on the confidentiality agreements he had signed. Our experienced staff and attorneys decided that the best strategy in Andrew’s case was to highlight his education and vast experience in the industry having maintained high level positions in the industry, leading international real estate teams, heading overseas real estate and property management implementation strategies across various continents, and initiating/implementing domestic real estate acquisition projects totaling more than $4 billion in investment. We are happy to report that our strategy was successful and Andrew’s national interest waiver was recently approved. Here is how we did it.

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