Dallas-Fort Worth Immigration Lawyer
Family-Based Immigration
So You Want to Be an American: Five Circles of Immigration Hell
Category: Family-Based Immigration
There is a wonderful, humorous article about an Australian's frustrating passage through the immigration process at Cracked.com. Caution: the article contains some strong language.
K-3 Visa Processing
Category: Family-Based Immigration
Spouses of United States citizens may enter the U.S. with a non-immigrant K-3 visa while the immigrant visa petition is pending. It is important to note that the marriage must be valid in order to qualify and all previous marriages must be legally terminated. Thus, one will include either divorce or death documents (if applicable).
To obtain a K-3 visa, the U.S. citizen will file Form I-130 Petition for Alien Relative along with supporting documentation and the filing fee of $355. Once U.S. Citizenship and Immigration Services (USCIS) receive Form I-130, USCIS will issue a receipt notice indicating that they received the petition. The U.S. citizen will thereafter file Form I-129F Petition for Alien Fiancé with USCIS and include the I-130 receipt notice, and other supporting documentation. There are no filing fees when filing Form I-129F in this second step.
If the Immigrant Petition (Form I-130) has not been decided, and Form I-129F has been approved by USCIS, the file will be sent to the National Visa Center (NVC). The NVC will process the K-3 visa petition and send the K-3 petition to the U.S. Embassy or Consulate where the marriage took place or visa applicant's country of nationality. The K-3 visa applicant will be instructed by the U.S. Embassy or Consulate of further administrative processing.
If both Form I-129F (K-3) and Form I-130 (Immigrant Relative petition) have been approved by USCIS and both petitions were received by the NVC, the NVC will process the immigrant visa petition since there is no need to process the K-3 visa.
Please call us at (214)999-9999 for further information on K-3 visas or other immigration related questions.
Senate Measure Gives Rights to Widows of Citizens
Category: Family-Based Immigration
In a long-overdue move, the Senate last week approved a law that would stop the so-called "widows penalty" in immigration situations. Until now, if an immigrant had an application for permanent residency on file based on marriage to a U.S. citizen, and the citizen died within the first two years of the marriage, the application was annulled and the immigrant was deported.
This seems especially harsh treatment to an immigrant who has just lost his or her newlywed spouse to a tragic death. To have to deal not only with the personal loss but also with the trauma of having to leave the country is just too great a burden.
The new law, expected to be approved by President Obama, would allow the immigrant to submit his or her own petition for residency within two years of the spouse’s death. The immigrant must not have remarried and must still prove that the marriage was entered into in good-faith.
The law would be retroactive, and would apply to any immigrant whose citizen spouse died less than two years after the marriage, regardless of the date. The immigrant would have two years from the law’s enactment to petition for residency.
Surviving Spouses and Children of Deceased U.S. Citizens: Apply For Relief!
Category: Family-Based Immigration
Surviving spouses and their qualifying children, whose U.S. citizen spouses died before the second anniversary of marriage, are eligible to request deferred action. Deferred action is filed with U.S. Citizenship and Immigration Services (USCIS) and once granted it allows surviving spouses and children to remain in the United States for a temporary authorized period of time (two years for this program) without being removed from the United States during that authorized time. Once granted deferred action, the applicant is also eligible to apply for employment authorization (filed on Form I-765) and travel authorization (filed on Form I-131).
Deferred action does not eliminate any period of unlawful presence that accrued before it was granted; it does not convey or imply any waivers of inadmissibility that may exist; and it does not confer or alter any immigration status. However, deferred action does allow the applicant to remain in the United States for two years under this program. During the two years that deferred action is in effect, no additional unlawful presence accrues.
In order to qualify for this program, the surviving spouse must:
* have been married less than two years to the U.S. citizen at the time of the U.S. spouses' death;
* did not remarry; and
* be currently residing in the United States.
The qualifying children of the surviving spouses that qualify under the program must be:
* younger than 21 years old (at the time the request for deferred action was submitted or Form I-130 was filed on their behalf as an immediate relative);
* unmarried; and
* residing in the United States.
Deferred action is filed on Form I-360 at the Vermont Service Center. It is important to file Form I-360 with the appropriate filing fee of $375 and the supporting documentation.
If the U.S. citizen spouse died after being married for two years at the time of the U.S. citizen's death, then the widow(er) of a U.S. citizen is not covered by the deferred action program. However, the widow(er) is eligible to self-petition as an immediate relative as long as Form I-360 is filed within two years after the date of death.
For more information on Deferred Action for surviving spouses and qualifying children of deceased U.S. citizens, please call us at 214-999-9999
Good News for a Violence Against Women's Act Petitioner
Category: Family-Based Immigration
Attorney Eugenia Ponce of our firm attended an adjustment of status interview last week with our client, based on the client's approved I-360 VAWA petition. A VAWA petition (Violence Against Women’s Act) allows the spouse, parent, or child of a U.S. citizen, or a Lawful Permanent Resident (LPR) who was battered or subject to extreme cruelty to self-petition independently of the abusive U.S. citizen or LPR. The VAWA self-petitioner must meet the statutory requirements which include:
- she or he has resided with the U.S. citizen or LPR spouse/parent;
- was subject to extreme cruelty or battery (or in the case of a child, the child was battered or subjected to extreme cruelty) during the marriage with U.S. Citizen or LPR;
- the marriage was entered into in good faith;
- she or he is otherwise eligible for immediate relative or preference status; and
- is a person of good moral character.
We submitted many different kinds sorts of evidence proving the VAWA case. We submitted reports and affidavits from the police, photos showing visible injuries, medical reports, affidavits from school officials, an order of protection against the abuser, and other supporting evidence to establish our client was subject to battery.
Because our client was married to a U.S. citizen, there was an immediate visa available, and Form I-360 VAWA and Form I-485 Adjustment of Status were filed concurrently. Although our client had entered the United States without inspection in 1996, an approved self-petitioner of Form I-360 VAWA is eligible to adjust even if he or she entered without inspection or parole.
Our client’s 16-year-old daughter was also eligible to adjust her status to permanent residence since the daughter was accorded derivative status based on her mother’s approved I-360 VAWA petition.
Both undocumented individuals are now permanent residents of the United States.
Severe Penalties for Sham Marriages to Gain Citizenship
Category: Family-Based Immigration
On July 24, 2009, the U.S. Immigration and Customs Enforcement (ICE) arrested an Ohio immigration attorney and a businessman on charges of marriage fraud. The Ohio-based immigration attorney and the businessman were alleged to have entered into separate sham marriages with two U.S. citizens in order to obtain citizenship. A marriage entered into for the purpose of gaining citizenship carries severe penalties of up to a $250,000 and/or five years imprisonment.
To convict a person of marriage fraud, the government must prove the following:
1) the person knowingly entered into a marriage;
2) the marriage was entered into for the purpose of evading immigration laws; and
3) the person knew or had reason to know of the immigration laws.
The above illustrates that anyone trying to evade the immigration laws by entering into sham marriages might not obtain citizenship, but rather might enjoy the harsh penalties that could be imposed.The article about this case is available at the U.S. Immigration and Customs Enforcement Web site.
What Is Conditional Residence, and How Do I Remove Conditions?
Category: Family-Based Immigration
Foreign nationals may obtain their green cards by marriage through a U.S. citizen or lawful permanent resident (LPR). If the marriage is less than two years old at the time residence is granted, the foreign national will receive conditional resident status. The actual conditional residence card will have a two year validity date. Individuals who obtained their resident status based on a marriage less than two years are required to file Form I-751 Petition to Remove Conditions 90 days prior to the expiration date on the conditional residence card. Once the conditions are removed, the conditional resident status becomes permanent.
The petition to remove conditions should be accompanied with evidence establishing the validity of the marriage since being granted conditional resident status. Supporting documentation of a valid marriage may include:
· Birth certificates of children,
· a copy of the rent/apartment lease,
· mortgage payments,
· joint filing of tax returns,
· utility bills evidencing both names,
· copies of pictures,
· itineraries or boarding passes,
· insurance coverage listing both names,
· joint bank accounts,
· driver’s licenses evidencing both names,
· letters from family regarding knowledge of the marriage (including envelopes with postmarks),
· receipts for items purchased together (ie: furniture),
· cards written to both for a holiday, birthday, anniversary.
Other documents accompanying the Form I-751 include:
· A copy of the conditional residence card,
· Two passport style photos for the applicant,
· A certified copy of any arrest record and disposition of the case (for individuals who have been arrested or detained),
· A money order payable to the U.S. Department of Homeland Security in the amount of $545 for filing fees.
Kraft & Associates will answer your questions on conditional resident status and permanent residence. Call us at 214-999-9999.
DHS Establishes Interim Relief for Widows of U.S. Citizens
Category: Family-Based Immigration
On June 9, 2009, U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano granted deferred action for two years to widows and widowers of U.S. citizens (and their unmarried children under 18 years old) who reside in the United States, and who were married for less than two years before their spouse’s death. Deferred action is a short-term act of prosecutorial discretion that suspends removal proceedings against an individual or group of individuals for a specific timeframe. The action is temporary and it will not resolve an individual’s underlying immigration status.
In addition to the deferred action, U.S. Citizenship and Immigration Services (USCIS) will suspend all adjudications of visa petitions and adjustment applications filed by widow(er)s where the only reason for reassessment of immigration status was the death of a U.S. citizen spouse before the second anniversary of the marriage. Further, U.S. Immigration and Customs Enforcement (ICE) will now defer initiating or continuing removal proceedings, or executing final orders of removal against qualified widow(er)s and their eligible children.
Secretary Napolitano states that the deferred action is a “common-sense and practical” solution that will grant “these individuals and their children an opportunity to stay in the country that has become their home while their legal status is resolved.”
Additional information may be found at: www.dhs.gov.
DREAM Act May Reawaken as Congress Pushes Toward Comprehensive Immigration Reform
Category: Family-Based Immigration
The Development, Relief, and Education for Alien Minors (DREAM) Act was originally introduced in the Senate by Senator Dick Durbin (D-Ill.) in October of 2007, but was defeated on a cloture vote of 52 to 44. However, the Act was re-introduced in the Senate by Senator Durbin on March 26, 2009. The Act is co-sponsored by Senator Richard Lugar (R-Ind.) and so far shows promise as part of a new wave of immigration reform.
Currently, immigrant children are only able to obtain legal permanent residency through their parents. The DREAM Act would change this standard by paving a way to U.S. citizenship for undocumented immigrant children, on their own merits. These children would have to meet certain criteria, including living in the U.S. for five years and graduating from a U.S. high school before becoming eligible to apply for temporary citizenship. Upon acceptance, the applicant would obtain temporary citizenship for six years, followed by legal permanent residency after completion of a two-year college degree or two years of military service.
Senator Durbin has been fashioning the DREAM Act for the past eight years, and he does admit that he is “impatient” for the Act to become a reality. Nevertheless, Senator Durbin admits that, while he might have enough votes to pass the DREAM Act by itself, he prefers to make the Act part of a larger, comprehensive immigration reform package – the first of its’ kind under the new Obama administration.
For more information, please visit: TheHill.com. Additional information about Senator Durbin and the DREAM Act may also be found at: http://durbin.senate.gov.
Ten Things to Take to an Immigrant Visa Interview
Category: Family-Based Immigration
Once an immigrant visa applicant has been scheduled for a visa interview, a consular officer will require seeing specific documents for visa processing. Certain U.S. embassies and consulates have their own local requirements for processing immigrant visas. Generally however, all visa applicants should take the following documents to their interviews:
1. Passport: Each visa applicant must take his or her original passport. This includes expired and unexpired passports.
2. Birth Certificate: A certified copy of each applicant’s birth certificate is required.
3. Marriage Certificate: If the visa applicant is married, a certified copy of the marriage certificate bearing the seal of official government authority.
4. Divorce Decree (or Death Certificate): If the visa applicant is divorced (or spouse died), a certified copy of every divorce decree (or death certificate, if applicable) bearing the seal of official government authority.
5. Police Certificate: Each visa applicant must apply for a police record clearance from every country in which the applicant lived for more than six months, since the age of 16. The police record clearance must be obtained for each applicant, even if the applicant has never been arrested. The police certificate must be obtained before attending the visa interview.
6. Medical Examination and Supplement (Immunization Records): A medical examination by a designated physician is required before attending the visa interview. The applicant will hand-deliver the sealed envelope to the consular officer at the interview.
7. Employment Letter or Proof of Financial Support: If the visa applicant was sponsored by a U.S. employer, an employment letter confirming a job offer is required. If the visa applicant was sponsored by a family member, the U.S. citizen or permanent resident relative must submit an Affidavit of Support on Form I-864.
8. Immigrant Visa Application: The visa applicant must complete Form DS-230, Part II and take the completed form to the interview. It is important that the applicant not sign the form because this particular form is to be signed only in the presence of the Consular Officer.
9. Approval Notices: Visa Applicants must take all approval notices they have ever received.
10. Waiver Applications (if applicable): For certain visa applicants who are ineligible to enter the United States, a waiver application is required.
Interim Final Rule: Non-Immigrants With "T" & "U" Visas Can Now Adjust Their Status To Lawful Permanent Residents
Category: Family-Based Immigration
The Department of Homeland Security (DHS) published a new interim rule today allowing certain visas holders in “T” and “U” classification to adjust their status to lawful permanent residents. The rule also provides for adjustment of status for family members of a principle T or U visa holder.
Certain foreign nationals who are victims of a severe form of human trafficking are eligible for “T” visas. In order for individuals in “T” visa status to adjust their status to lawful permanent residence, the individual must have three years of continuous presence in the U.S. or a continuous period during an investigation or prosecution of the acts of trafficking.
The “U” visa classification is for victims of certain crimes who are willing to assist government officials in the investigation of the criminal activity. “U” visa holders must be physically present in the U.S. for a continuous period of at least three years since the date of admission to apply for lawful permanent residence. Evidence of continuous physical presence can be provided by college transcripts, employment records, utility bills or other supporting evidence during the requisite three year period.
Individuals with both “T” and “U” visas, must be in valid status at the time they seek to adjust their status. There is a 5,000 annual cap for “T” visa holders, and no numerical cap on adjustment of status for “U” non-immigrants.
The rule becomes effective 30 days after publication in the Federal Register.
Please stay tuned for the latest developments.
Intercountry Adoption Web Site
Category: Family-Based Immigration
Recently, the U.S. Department of State launched a new Web site designed exclusively for intercountry adoption. The Web site, www.adoption.state.gov, provides information regarding the international adoption process, eligibility and requirements to adopt, the specific countries from which Americans can adopt children, the protections provided by the Hague Adoption Convention, and information about selecting an accredited adoption agency. Here is a statement from the site:
Married To A U.S. Citizen - Permanent Residence Is Not Automatic!
Category: Family-Based Immigration
A foreign national who legally entered the United States, overstayed the authorized stay, and is married to a U.S. citizen does not derive automatic lawful permanent status. Yet, by filing the appropriate paperwork with the Immigration Service, the foreign national may be eligible to attain immigration benefits and become a lawful permanent resident, even if the foreign national overstayed the visa and is out of status. Generally, foreign nationals who enter with a visa (i.e., are inspected and admitted), overstay their permissible stay, and have a valid marriage to a U.S. citizen, are eligible to adjust their status in the U.S. based on marriage to a U.S. citizen.
The process changes if a foreign national unlawfully entered the U.S., and married a U.S. citizen. The foreign national cannot adjust in the U.S. but will have to consular process. Unlawful entry occurs when an individual enters the U.S. without inspection at a port of entry. If the foreign national accrues unlawful presence of more than a year, their departure from the U.S. will trigger a ten year bar on returning to the United States. A waiver for the ten year bar must be filed to show "extreme hardship" to a U.S. citizen or lawful permanent resident spouse. If planning on consular process, the foreign national should plan on being outside of the U.S. for more than a year.
If you are married to a U.S. citizen and would like more information on how to obtain permanent residence, please call us at 214-999-9999.