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Dispelling Misleading Info About Same-Sex Marriage and U.S. Immigration

ringsWith every state that legalizes gay marriage, it gets a little easier for binational couples across the U.S. to marry and obtain a green card on that basis.

But let’s get one thing clear: It’s not critical that the state where the couple live have legalized same-sex marriage, nor that they get married there in order to claim immigration benefits. Ever since last year’s Windsor decision by the U.S. Supreme Court, a same-sex marriage in ANY STATE OR COUNTRY WHERE IT’S LEGAL has been enough to support the non-citizen’s application for a green card. (See Nolo’s article, “Same-Sex Marriage Now a Basis for U.S. Lawful Permanent Residence (a Green Card)” for more on this.)

This simple truth makes it downright puzzling to see an article like “Worries lessen for Virginia gay immigrants, who can now marry” in the Washington Post, by Pamela Constable. If I didn’t already know better, I would have come away from the article thinking that the Virginia-based binational couples profiled were in an absolute trap until Virginia legalized same-sex marriage – that they were unable to get the foreign-born person a green card (lawful permanent residence) based on their relationship.

The article describes the situation of a Richmond couple, for example, one member of whom is from Paraguay, as follows: “because . . . the two men could not marry without starting over and moving to another state, they faced constant financial, legal, and emotional strains.”

But, but, but . . . they could’ve traveled to another state or country that allows same-sex marriage months ago, and held a wedding without doing anything close to “starting over!”

States vary in what they require of couples who want to marry there, of course. Nevertheless, in California, Hawaii, New Mexico, and most of the other states where same-sex marriage is legal, you can get married with no residency requirement and minimal or no waiting period, immediately after receiving your marriage license. (See Nolo’s “Chart: State Marriage License and Blood Test Requirements” for more information, as well as “Where Can We Marry?” by the organization Immigration Equality.)

Constable quotes a member of another binational couple profiled in the article as saying, “This news came just in the nick of time,” before the non-citizen’s work visa ran out. Guys, Virginia is a quick trip away from Maryland as well as Washington, DC. Neither impose any residency requirements before marrying, and their waiting requirements are a mere few days after getting the marriage license. I’ll bet they’ve got many lovely wedding venues, too!

The article does mention that some binational couples in Virginia have already married in DC or Maryland, but you’ve got to read pretty far down to catch that. And I get it that having to travel far from one’s home base and bring friends along, too, would be a royal pain. So the news from Virginia is definitely good for binational couples there – it’s just not as monumental as it sounds.

Nifty Calculator for Figuring Out When to Renew DACA Status

Happy Young Hispanic Boy with Backpack Ready for School.If you have DACA (Deferred Action for Childhood Arrivals) status in the U.S., which lasts for two years at a time, you may have heard that renewals are now possible — and encouraged, if you don’t want to lose your work permit and start accruing “unlawful status.”

For details on how to renew, see Nolo’s update, “DACA Program Now Open for Renewals; Plus New Form I-821D.”

Timing is crucial. If you apply more than 150 days before your status expires, U.S. Citizenship and Immigration Services (USCIS) will reject and return the application to you. But if apply fewer than 120 days before your status expires, USCIS may not have time to process and make a decision on your application, and you could lose your job and end up with a gap in status (assuming you’re eventually approved).

Have you ever tried counting out days on a calendar? It’s a pain. That’s why applicants might be grateful to see that the National Immigration Law Center (NILC) has come up with a handy calculator that figures out exactly the best window of time in which to apply. Just click the “THIS TOOL” link, enter the expiration date on your work permit (EAD), and the appropriate dates will pop up.

 

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.

Newly Issued Statistics on Who’s in the U.S. With a Temporary Visa

visaThe U.S. government recently released a report called “Estimates of the Size and Characteristics of the Resident Nonimmigrant Population in the United States: January 2012.” It analyzes the numbers of “nonimmigrants” in the U.S. (foreign-born people with a visa as opposed to a green card or undocumented status) in terms of variables such as age, country of origin, and type of visa.

Here are some salient factoids from the report:

  •  A total of about 1.9 million nonimmigrants lived in the U.S. in 2012.
  • Almost half of these (45%) were temporary workers and their families (for example, on H visas).
  • Another 40% were students and their families.
  • Most of them (80%) were between the ages of 18 and 44.
  • About half of them hailed from an Asian country (an impressive 50% of  foreign students came from China, and 38% of workers came from India).
  • Their top destination states were California, New York, Texas, Florida, and Massachusetts.

The bottom line? When you imagine a nonimmigrant, you should probably bring to mind a young Asian worker or foreign student.

Countries From Which It’s Hardest to Get a Visitor (B-2) Visa to the U.S.

jigsaw in blue with five missing piecesThe U.S. Department of State (DOS) recently released statistics showing what percentage of applicants from various countries have been denied tourist or visitor visas in 2013 and earlier years. In some cases, the refusal rate isn’t just high, it’s overwhelming — that is, a majority of applicants get a “No” answer.

You might as well not even try applying for a visitor visa if you’re from Micronesia or Serbia and Montenegro. The refusal rate in those locations is 100%. Yes, you read that right — everyone who asks for a visa is apparently refused. Or perhaps the few who are approved are statistically insignificant (though they should really break out the champagne).

Also high on the refusal list are Somalia (65.8%), Djibouti (62.6%), (Afghanistan (62.7%), Ghana (61.8%), Laos (61.4%), Cuba (61.1%), Liberia (59%), Tajikistan (53.7%), Burundi (52.7%), and Mauritania (50%). (Hey, are the consular officers just flipping coins in Mauritania?)

Looking over this list, a certain pattern emerges. The countries with high refusal rates also have difficult civil or economic situations, as a result of which many people may be looking for a way out — in other words, bringing the kids to Disneyland is probably the last thing on their minds or within their budgets. And the U.S. government must, by law, deny visitor visas to anyone who looks as though their real intention is to make the U.S. their permanent home.

For more on the eligibility criteria for a U.S. visitor visa, see “Visiting the U.S. for Business, Pleasure, or Medical Treatment.”

Justin Bieber “Stuck in the Moment” of a Pending Removal Proceeding?

After years of exploring immigration law’s darkest corners, I can say with some certainty that:

  1. throwing eggs at your neighbor’s house is not on the list of grounds of deportability, and
  2. nor is being the subject of a petition to the White House alleging that you have “wrongly represented” the U.S. “in the world of pop culture.”

I hope that’s of some comfort to Justin Bieber fans.

eggbrokenIf you’re unfamiliar with the hoopla, CNN did a fine job of outlining both what Canadian-born pop singer Justin Bieber is currently suspected of (felony vandalism, so far, based on the egg-throwing incident; with possible charges for driving while under the influence of drugs, though it’s not clear that he was doing the driving). See CNN’s “Could Justin Bieber be deported?” and “Justin Bieber egg probe ‘tightening up’; prosecutor wants more investigation.”

The CNN articles also discuss what these accusations might mean for Bieber’s immigration status. He’s apparently in the U.S. on an O visa, for people with “extraordinary ability in the sciences, arts, education, business, or athletics.”

People who are legally in the U.S., like Bieber, can be deported for committing a crime that’s listed on the grounds of deportability within U.S. immigration law. (Juvenile crimes are sometimes an exception, but contrary to appearances, the Biebs is already 19.)

Nothing Bieber is alleged to have done so far seems to make experienced immigration attorneys think he fits either of the main two criminal grounds of deportability, namely a “crime of moral turpitude” (one that shocks the public conscience) or an “aggravated felony (which doesn’t have to have “felony” in the name, but can include various types of misdemeanors).

Bieber could, however, face removal proceedings if he has drug issues. The immigration law contains two separate grounds of deportability for drug use: one that makes people deportable if they’ve been convicted of a drug crime (or an attempt), with an exception for a single offense involving possession for personal use of 30 grams or less of marijuana; and another for being a drug abuser or addict.

Notice that no actual court conviction is needed to be deportable under the drug abuse/addict section. The person’s own confession to drug use could be enough. Bieber appears to have already told the police who pulled him over in a traffic stop that he’d been drinking, using marijuana, and taking prescription pills. (Oops. It’s never a good idea to drink so much that you get into a confessional mood like that.)

Of course, one could face worse fates than being deported to Canada. But, depending how all this plays out, Bieber could face a bar on returning to the U.S. for a long time after deportation — long enough to lose those baby cheeks.

P.S. Should we be shocked or impressed that he poses for a mugshot like it’s just another publicity still?

This Is News: Actual Enforcement Against Shady Immigration Consultants!

oakland courtIn today’s news piece, “Judge: Co. Owes $15M in Botched Immigration Forms,” NBC Bay Area states that the Oakland City Attorney has obtained a $15.1  million court judgment against a fraudulent immigration consulting  business, so-called “American Legal Services.” This company’s actions — we can’t call them legal services, because there seems not to have been a single attorney on staff — are said to have resulted in many Oakland families who were seeking immigration help losing vast amounts of money or winding up in removal (deportation) proceedings.

This story is both surprising and not. The “not surprising” part is that immigrants and their families are prey for unscrupulous fraudsters. That’s been going on for years.

Every immigration attorney has had clients come to them after their case was botched by someone who had no idea what they were doing, but pretended otherwise and charged a lot of money. Many use the name “notario,” because in the Spanish-speaking community, it implies someone with actual training, while in the U.S., it just means someone who’s a notary public — that is, can confirm your signature using a rubber stamp.

The surprising part is that someone is actually doing something about it! Immigrants are seemingly so low on the list of societal priorities that such issues often go unaddressed by enforcement authorities — even when all the evidence is right in front of their faces.

I once had a case where a client paid a fraudster to put a green card stamp in her passport (a stamp which he’d somehow acquired straight from U.S. immigration authorities). You’d think that would have been seen as a serious matter by anyone within the immigration system. But when I pointed it out to the attorney for the Department of Homeland Security, and urged him to go after the guy, he shrugged. As far as I know, that was the end of it.

But let’s hope the Oakland court judgement is a sign of more enforcement to come. If you’ve been harmed by a fraudulent immigration service provider, you can add to the push for further enforcement by reporting it to the police, district attorney’s office, and state bar association. And if you’re seeking immigration services, see “How to Avoid a Sleazy Immigration Lawyer” for more information.

Chances of Provisional Waiver Approval? About 60-40

tracksThanks to CLINIC (the Catholic Legal Immigration Network), we now have a clearer picture of how U.S. Citizenship and Immigration Services (USCIS) is responding to requests for provisional waivers (on Form I-601A). The approval rate thus far is 59% — hardly encouraging for prospective applicants. (See “Update from the NBC on Provisional Waivers.”)

The statistics confirm what many immigration attorneys have been observing: The issue of whether USCIS finds “reason to believe” that the applicant could be inadmissible (for reasons other than unlawful presence) accounts for the highest number of denials, at 48% of the total.

According to attorney experience, “reason to believe” is taken extremely broadly by USCIS, with minimal or no consideration given to whether the perceived issue could, if true, actually amount to a ground of inadmissibility. A minor traffic violation on a person’s record, could, for example, lead to denial of the provisional waiver – but is not actually a ground of inadmissibility.

The second highest reason for denial was failure to establish extreme hardship to a qualifying U.S. relative. That’s more in line with what one might expect as a reason for denials. Proving extreme hardship in any immigration context can be tricky, depending as much on one’s ability to weave facts into a compelling narrative and the sympathies of the person making the decision as on whether one applicant’s case is actually any more deserving than another’s.

Should this news discourage people from applying for provisional waivers? In the short term, probably yes. Immigration attorneys are already gearing up to try to convince USCIS to shift its approach on this matter, and the dust will need some time in which to settle.

But if you’ve got unlimited funds, or are urgently in need of a green card, applying now isn’t the worst idea, either. It won’t stop you from applying for another provisional waiver if you can show new information in support of your request. And it won’t stop you from taking a chance and leaving the U.S. to apply for your waiver at an overseas consulate. (If this isn’t making sense to you, then please read the more extensive discussion of how to get a waiver or provisional waiver of unlawful presence on the “Waivers and Inadmissibility” page of Nolo’s website.)

The Shutdown Isn’t Total: Don’t Miss Your Green Card Appointment!

stop signAs of October 1, the Republicans have succeeded in shutting down all “non-essential” U.S. government functions. What that means for immigrants, however, depends on which agency you’re dealing with, how its’ funded, how urgent its functions are considered to be, and of course how long this shutdown lasts.

So, for example, if you are scheduled for a green card (adjustment of status) interview during the shutdown, U.S. Citizenship and Immigration Services so far says that these will continue. On the other hand, immigration court proceedings are largely canceled, except in cases where the person is being held in detention.

And in case you were wondering, the shutdown doesn’t change the fact that today is the first day people from certain countries can apply for the U.S.’s annual diversity visa lottery.

For further details, see Nolo’s update on “What the Federal Shutdown Means for Immigration Agencies.”

Is the Moon Blue? Priority Dates Current in Family Category 2A

moonThis doesn’t happen very often – only “once in a blue moon,” as they say: Priority Dates for the spouses and children of a U.S. lawful permanent resident (LPR), in category 2A of the family preference system, are shown as “Current” (with a “C”) in the State Department Visa Bulletin for August, 2013.

A wait that usually lasts two to five years has been reduced to zero.

By way of background, the Priority Date is the all-important place in line to get a U.S. immigrant visa, or green card. Because only a limited number are, by law, allocated annually, and demand always exceeds supply, the visas are doled out on a first-applied, first-served basis. More literally, they are based on the date that U.S. Citizenship and Immigration Services (USCIS) received the I-130 visa petition from the U.S. LPR that started the application process on the immigrant’s behalf.

Normally, only when the Visa Bulletin shows a date that is the same or later than the immigrant’s Priority Date is the immigrant allowed to go ahead with the green card application. But the “current” situation is abnormal — everyone can, potentially, move forward, regardless of how long ago they applied or who is in line ahead of them.

How long this will last is anyone’s guess. And intending immigrants in category 2A may need to act quickly to take advantage of it. For more information, and guidance on what to do next, see Nolo’s update, “Spouse or Child of LPR? Your Priority Date Is Current!