Category Archives: Family-Based Visas and Green Cards

It’s a Fine Executive Order, But What Will the 2017 President Do?

Obama immigration speechMany immigrant groups have expressed disappointment that President Obama’s Executive Order of November 20, 2014 did not go further in easing the lives of immigrants within the United States.

Latino groups, for example, would have liked to see relief for farmworkers, LGBT groups would have liked to see relief for those without family relationships to draw on, and young beneficiaries of Deferred Action for Childhood Arrivals (DACA) would have liked to see their parents and other non-DACA-eligible family members receive derivative benefits, such as a work permit and similar protection from deportation.

But I’m impressed that the order went as far as it did, basically stopping just short of granting any new, permanent legal status to non-citizens of the United States. Doing so is traditionally seen as the role of Congress, though the exact line between the president’s and Congress’s power over immigration matters has never been clearly drawn. (For a full legal analysis, see “The President and Immigration Law,” by Adam Cox and Cristina Rodriquez.)

The expansion of the provisional waiver program, for example, is a huge fix to what was essentially a procedural inequity, allowing adult children of U.S. citizens as well as spouses and children of lawful permanent residents who were living in the U.S. unlawfully and not among those allowed to file paperwork here, but too scared to leave to collect the green cards they were otherwise eligible for, to file a waiver request and obtain assurance before their departure that they’d be allowed back into the United States. (Sorry, there’s just no way to make that brief and easy to grasp. Put another way, the provisional waiver allows them to apply for a waiver of their unlawful presence in the U.S. before, not after taking the risk of departing and then being barred from return. Is it any wonder the press and public seem a little unclear on the details?)

For more on this and other changes made by the Executive Order, see Nolo’s update, “President Obama Announces Executive Action on Immigration.”

The bottom line, however, is that an executive order can be easily undone by the next executive — and we don’t know who will succeed President Obama after the 2016 election. Immigrants are plenty aware of this fact. That’s why far fewer young people applied for DACA relief than were eligible or expected.

If it’s true that young people have a sense of invincibility, then one might argue that the new group of deferred-action-eligible people created by President Obama’s order — parents of U.S. citizens and permanent residents — might be even less willing to say, in effect, “Hey look, I’m here illegally, here are my name and address for your files!”.

They know, better than many of the opponents of the President’s order, that neither DACA nor the new Deferred Action for Parental Accountability (DAPA) program is in any way an amnesty. Neither program offers a path to a green card — DACA and DAPA provide only a work permit and a short-term promise that those approved won’t be deported. As stated to the National Journal by Marc Rosenblum, deputy director of the Migration Policy Institute’s U.S. Immigration Policy Program, “Those who have a stable job and aren’t looking for a new one might decide it’s safer to keep their names off the government’s books.”

The one thing that every group representing, or even interested in the fate of immigrants and refugees in the U.S. seems to agree on, is that Congress needs to get its act together and actually pass immigration reform. That will no doubt fall short of providing the relief that everyone hopes for too, but at least it will offer some certainty.

Why Give Birth in the U.S. When a Surrogate Can Do It For You?!

pacifierIt was only a matter of time, really. First, there was “birth tourism,” in which people from around the world who are interested in gaining a foothold in the U.S. arrange to enter as tourists and have a child here — their own little U.S. citizen “anchor baby.”  (See details in my earlier blog, on “Anchor Babies in the News.”)

Now, some parents are avoiding that nerve-wracking plane ride while pregnant, and simply arranging to have surrogate women in the U.S. give birth and cede their parental rights to them. For real. You can read about it in California Lawyer magazine.

This strategy doesn’t work in every U.S. state (because many state legislatures have made surrogacy contracts illegal or unenforceable), but it works in California, which is plenty convenient for the many Asian couples going this route.

I do need to take issue with one statement in the article on “Having a Citizen Baby,” however. It says that, “At $100,000 to $200,000–which includes legal fees, insurance, medical care, and $30,000 to $45,000 for the surrogate–hiring a surrogate is still much cheaper than taking another fast track to legal residency: paying $500,000 or more for an entrepreneur visa.”

The surrogacy route is no “fast track” to legal residency, other than for the baby, who wasn’t exactly worried about immigrating to the U.S. in the first place. Mom and dad still must wait 21 years outside the U.S. before gaining any rights here (also described in my earlier blog post). The entrepreneur or investor visa, by contrast, allows parents and children to enter the U.S. right away.

But the surrogacy route offers certainty for at least one member of the family, and doesn’t carry the risk that the business upon which the investor visa was based will fail within the  first two years–in which case green card eligibility is lost.

How Will You Know When USCIS Declares a Snow Day?

whitehousesnowWhen local schools are closed due to snow, you will usually hear it announced it on local radio and TV stations (and you can hear the cheers from around the neighborhood).

But how do you find out whether the office of U.S. Citizenship and Immigration Services (USCIS) at which you are scheduled to attend an interview or provide your biometrics has been closed due to bad (sometimes called “inclement”) weather? Sometimes the media may mention the closure of federal buildings, but it’s best not to count on this as your sole source of information.

If you have a lawyer, and he or she is a member of the American Immigration Lawyers’ Association (AILA), your lawyer will likely receive an email with any notifications of USCIS office closings.

If you don’t have a lawyer working on your immigration case, however, you may need to do a little research on your own if the weather is looking bad. USCIS does not make any attempt to reach out to people individually — trying to call or even email the thousands of people who are scheduled for appointments on a given day would probably take well into that night!

USCIS will reschedule non-INFOPASS appointments due to its own closure automatically, but that’s done by letter, and could take weeks. (If you made an INFOPASS appointment to visit a USCIS office, however, you’ll need to go online and reschedule that one yourself.)

The most reliable source of such information is on the “Field Office Closings” page of the USCIS website. On most days, it will simply say (in the top paragraph under the date) “All offices are open on schedule today.” On other days, however, this page will state which of USCIS’s offices nationwide are closed. According to a USCIS spokesperson whom I contacted, they also make an effort to advise people via social media, including the USCIS Facebook page and Twitter.

If in doubt, you could also try calling the National Customer Service Center at 800-375-5283.

If you are still in doubt, do your best to make it to your appointment. Failure to do so could result in weeks of delay at best, and possible denial of your application for immigration benefits.

Got Immigration Court Oct. 18? BE THERE!

traffic_lightAs you may have heard, the U.S. federal government shutdown has been brought to an end (at least for this year). We can probably expect that immigration-related operations by the Department of Homeland Security and U.S. Citizenship and Immigration Services will pick up slowly, with some delays as workers who were furloughed get back to the piles on their desks.

In the case of Immigration Court proceedings, however (which are run by the Department of Justice), things are already moving quickly. While court hearings that were scheduled for today (October 17, 2013) in non-detained cases will not go forward, anyone with a hearing set for tomorrow, October 18, 2013, needs to be there! If you haven’t heard from your attorney about this, give him or her a call.

The “EOIR Operations for October 17, 2013” page of the Department of Justice website provides details.EEOIR Operations for October 17, 2013OIR Operations for October 17, 2013

That “Living With Your Ex” Trend? Not So Smart If You’re Sponsoring an Immigrant Spouse

cupcakeActual statistics on how many people are still living with their ex after a divorce are hard to come by. But between all the anecdotal reports, forums, and accounts by divorce lawyers, it appears to be the biggest unlikely trend since bacon on cupcakes and ice cream. It even merits a “How to” article on About.com.

The reasons behind this trend? It’s not necessarily that divorces have gotten all friendly all of a sudden. Cohabitating divorced couples are seemingly driven by financial constraints, efforts to maintain the kids’ accustomed home life, and (in a few of those anecdotal cases) just plain laziness. Yet in many cases, it sounds like the worst the couple contends with is a bit of neighborhood gossip.

But if one half of the couple is dating and plans to marry a foreign national, this cozy arrangement could turn into a problem far bigger than what the neighbors will think. It’s time to start worrying about what U.S. Citizenship and Immigration Services (USCIS) or an overseas U.S. consulate will think.

As attorney Marc Ellis points out in a recent article called “Mistakes That Applicants for Fiancée and Spousal Visas Make,” the immigration decision-maker “probably knows who’s been sleeping in your house.” And, given that a large part of successfully obtaining a green card based on marriage involves proving that the intended marriage is the real deal, not just a sham to get the immigrant a green card, having an adult of the opposite sex sleeping in one’s house is going to look mighty suspicious, divorce certificate or no.

Even if you get past that issue, there’s an additional problem if the cohabitation arrangement is due to tight financial circumstances: A U.S. citizen or permanent resident petitioning for a foreign spouse must show that he or she is capable of supporting that person, in addition to his or her existing household, by drawing on an income at or above the U.S. Poverty Guidelines levels. (See Nolo’s articles on “The U.S. Sponsor’s Financial Responsibilities.”) Claiming, “I’m too poor to get the ex-spouse out of the house but I’m ready to bring another spouse in!” is going to be difficult. Though I’d like to be a fly on the wall when you try.

Helpful NYT Chart on Federal Benefits Available to Same-Sex Couples

OLYMPUS DIGITAL CAMERANice graphics, nice summary: If you’re a member of a gay couple, you’ll want to check out this New York Times explanation of how the Supreme Court’s recent decision striking down major portions of the federal Defense of Marriage Act (DOMA) affects your rights depending on where in the U.S. you live.

The article’s statement that “Your spouse can apply for a permanent resident visa, known as a green card, for you,” however, needs a footnote.

In terms of basic eligibility rights, it’s absolutely true. But because of various penalties that primarily affect people who entered the U.S. without inspection (EWI, in immigration law lingo), actually claiming that green card may not be so easy. See Nolo’s article, “Entered the U.S. Illegally and Married a U.S. Citizen: What Are the Immigration Options?” for more information.

 

First Green Cards to Same-Sex Couples Being Issued!

ringsAs announced in an article by Julia Preston in the June 30 New York Times, U.S. Citizenship and Immigration Services (USCIS) has already begun approving marriage-based green cards for legally married same-sex couples. (We should expect an announcement from the Guinness Book of World Records next, because I think this is the fastest that this gigantoid bureaucracy has moved on anything, ever. The couple was surprised. Their lawyer was surprised.)

The important thing to realize about this action, however, is that the couple’s application was filed previous to the Supreme Court decision overturning core portions of the federal Defense of Marriage Act, or DOMA (which had created the bar to same-sex-marriage-based green cards in the first place). Apparently a number of same-sex couples anticipated DOMA’s eventual demise, no doubt based on the Obama Administration’s 2011 declaration that DOMA was unconstitutional and shouldn’t be enforced, and they submitted visa petition or green card applications in advance of any certainty that they would be approved. (Just one of those individual acts of courage that adds up to a movement . . . .) The couple in the article submitted a green card application last February.

What this recent USCIS action doesn’t mean is that the agency is prepared for new applications right this minute, or will act this quickly on them. The normal turnaround for an I-130 (the visa petition that the U.S. citizen or permanent resident would file if the immigrant is either overseas or is in the U.S. but ineligible to use the “adjustment of status” procedure, most likely because of an illegal entry), is about six months. (You can view USCIS’s not entirely reliable time estimates on its Case Status page.)

The normal turnaround time when the immigrant is already in the U.S. AND is eligible to use the U.S.-based adjustment of status procedure, in which case the U.S. citizen spouse can file an I-130 visa petition together with the rest of the green card packet, depends on backups at their local USCIS District Office. This process usually also takes several months before the couple is called in for the personal interview at which the green card should be approved.

Add to all this the fact that USCIS hasn’t issued any guidelines about how it will consider same-sex marriage cases and, if you’re in a same-sex binational married couple, you’ve got good reasons to hold off and consult a lawyer before actually submitting anything. At least a few days. We need to make sure no unhappy surprises turn up in the guidelines USCIS issues.

There’s reason to hope that the guidelines will be fairly straightforward, however. USCIS has promised to issue them promptly, and Janet Napolitano stated today that, “. . . I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

No matter what, now is a good time to start figuring out what you’ll need for the green card application and to get the various forms and documents ready. You’ll find information on marriage-based visas and green cards here on Nolo’s website.

SCOTUS, POTUS, and DOMA: Victory for Same-Sex Binational Couples

gaywedNice quote from the President, regarding today’s Supreme Court decision in U.S. v. Windsor striking down the bulk of the federal Defense of Marriage Act (DOMA), which had defined marriage as solely between a man and a woman (and thereby blocked all manner of federal rights and benefits to anyone who didn’t fit the definition):

“I applaud the Supreme Court’s decision to strike down the Defense of Marriage Act. This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. . . . I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”

So, it looks like it’s full steam ahead for implementing this law in the immigration context. Up until now, same-sex marriages didn’t count for a thing if the couple wanted to obtain a green card or visa for the foreign-born person. Today, these marriages do count, just the same as anyone else’s. All that matters is that they were legal in the state or country where they took place (so same-sex couples who live in places where same-sex marriage is NOT legal will have to find someplace else to get married in order to take advantage of this ruling).

Already, a New York immigration judge has reportedly halted the deportation proceedings of a gay Colombian man who is legally married to a U.S. citizen. Another male couple in New York, scheduled for a marriage-based green card interview with U.S. Citizenship and Immigration Services (USCIS) yesterday, had their interview postponed until after the DOMA decision — with hopefully an approval on the horizon. (It must have taken some guts to apply for the green card in the first place, knowing that if DOMA was upheld, their case would be denied and the noncitizen could be placed in deportation proceedings.)

The immigration bar has, so far, come up with no reasons why same-sex immigrant couples shouldn’t start filing their applications for green cards right away — with the small caveat that this process is harder than you might think (even for opposite-sex couples), and we still don’t know how quickly USCIS will actually adapt to this new regime. Don’t be surprised if you get some weird requests for evidence during the application process.

This decision should also allow noncitizens coming to the U.S. on temporary visas (H-1B, L-1, J-1, and so on) to obtain derivative visas for their same-sex spouses. (Here, at least, the U.S. government showed some flexibility in the past, by issuing the same-sex spouse a tourist, B-2 visa.)

Scheduling an in-person consult with an immigration attorney is an excellent idea.

For more information, see Nolo’s update, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card).”

Fee Hikes an Overlooked Aspect of Proposed Immigration Reform

mex border fenceThe legislation being hammered out in the Senate right now contains some pretty expensive elements. Specifically, committing even more resources than have already been thrown at the project of turning the U.S. border with Mexico into an impenetrable barrier is going to cost big bucks. Some $40 billion, to be spent on new border security agents, new drones, new fencing, and so on.

And where will this money come from? Much media attention was devoted recently to a U.S. government report showing that, if the bill is passed, the U.S. government and economy will actually get a boost. New taxpayers will contribute to the system, more undocumented immigrants will start new businesses, and all will hum along happily.

But that shouldn’t obscure a basic reality of the legislation as it stands, containing a recent compromise amendment from Senators Corker, Hoeven, and others. As noted in a recent press release from the American Immigration Lawyers’ Association (AILA), the spending on this bill isn’t going to come from the taxes and economic activity generated by these hardworking immigrants. It looks, for all the world, like it’s going to come straight from the immigrants pockets, as fees when they file their applications for immigration benefits.

AILA explains, “a startling and little-publicized requirement of the amendment would be that all ‘mandatory enforcement expenditures under the Act’ would be funded not by appropriated funds but by additional fees charged to those petitioning through the regular, legal immigration process.”

How high could these fees go up? They’re already in the thousands of dollars for many applications.

The proposed amendment says not only, “the Secretary may adjust the amounts of the fees and penalties . . .  except for [certain] fines and penalties,” but “If the Secretary determines that adjusting the fees and penalties set out [above] will be insufficient or impractical to cover the costs of the mandatory enforcement expenditures in this Act, the Secretary may charge an additional surcharge on every immigrant and nonimmigrant petition filed with the Secretary in an amount designed to be the minimum proportional surcharge necessary to recover the annual mandatory enforcement expenditures in this legislation.”

Ouch! Sky’s the limit!

If you’re an immigrant who already has a path to a visa or green card, the best advice I can give is to make sure the process moves forward as quickly as possible, to win the race against time and this new legislation.

Is There Still a Chance for Same-Sex Couples to Win Immigration Rights in the Reform Bill?

gemA lot of interesting immigration-related matters have been hitting my email inbox lately. First there was this video on Upworthy, with the heading, “I’d Like To Think I’m An Informed Straight Ally, But I’m Embarrassed I Didn’t Know This.” If Brandon didn’t know, I’m going to guess a few other people also don’t know the following:

Regardless of its legality in the state or country where it took place, a same-sex marriage still, today, does not offer the noncitizen a path to a U.S. green card. And there’s precious little the couple can do to get the noncitizen any other long-term visa or right to stay in the U.S., either. The welcome mat is out for heterosexual married couples — potentially even if they met online a few months ago and have barely spoken in person, one might note — but federal law draws a bright line on this one. The video posted on Upworthy gives a wrenching look at an American/British male married couple who are trying to deal with the all-too-brief amounts of time that U.S. law lets them spend together.

It would be so easy to fix this: In fact, the language proposed by Senator Patrick Leahy as an amendment to the draft immigration reform bill is a model of simplicity, stating “an individual shall be considered a ‘spouse’ and a marriage shall be considered a ‘marriage’ for the purposes of this Act if (1) the marriage of the individual is valid in the State in which the marriage was entered into; or (2) in the case of a marriage entered into outside of any State, the marriage is valid in the place in which the marriage was entered into and the marriage could have been entered into in a State.’’

A few weeks ago, however, the headlines were all about the disappointment of LGBT advocates as Leahy announced that he was withdrawing this amendment, in the interests of passing the bill as a whole.

Yet according to the blogosphere and the American Immigration Lawyers Association, he has refiled it. And according to another email I received today, from Emily Saliers of the Indigo Girls, a briefing is being held for Congressional staffers today at which she and other LGBT advocates will testify to why immigration reform “must include all families.” Emily says, “My partner Tristin is from Canada. We met nearly ten years ago when Tristin was serving as a substitute tour manager for the Indigo Girls. We soon became friends and then slowly fell in love. Even though we are a completely committed family (which includes our six-month old daughter Cleo!), there is no way for me to sponsor Tristin for a green card to keep our family together. This is the story I will be sharing on Capitol Hill today.”

You’d think I’d be humming an Indigo Girls tune after writing this blog. (And I’d be happy to, really.) But the song going through my head is actually Lenny Kravitz’s “It Ain’t Over Til It’s Over.”