I’ve been receiving a lot of inquiries whether legal permanent residents or greencard holders can sponsor their spouses to live or stay in the United States. Most of these inquiries involve a foreign national who is in the U.S. on a tourist visa and had met a legal permanent resident who offered him or her marriage. They want to know if the foreign national can stay in the U.S if they get married. While a legal permanent resident can sponsor or petition his or her foreign national spouse, this does not give the foreign national spouse the status of an immediate relative. Therefore, the foreign spouse cannot stay in the U.S. while waiting for the legal permanent resident spouse to become a U.S. citizen.
Only U.S. citizens have means of bringing their foreign husbands or wives to the US to live. The U.S. citizen can “sponsor” his or her spouse’s immigrant visa for entry to the United States. First, an immigrant petition has to be filed with USCIS. After USCIS, the National Visa Center and the US Embassy complete all the necessary administrative processing the foreign spouse will be granted an immigrant visa. The foreign spouse will receive an IR1 or a CR1 visa. An IR-1 (IR stands for “Immediate Relative”) visa allows your spouse to immigrate to the U.S. A CR1 Visa (CR stands for “Conditional Residency”) will be to the foreign national if the marriage is less than 2 years old. It is conditional for two years.
A K-3 visa is relatively new and the fastest way of getting your spouse to live in the U.S. It is a non-immigrant and is granted normally within a few months. You should use the K3 visa to start the process outside of the US, then travel to the US to complete the immigration process. In this case, the application must be made in the country where the marriage took place. If your marriage took place in the US, your spouse must apply for a K3 visa through the US Embassy in the country of his/her residence. After the visa has been issued, the spouse can travel to the US.
To obtain a visa for a foreign spouse, the following requirements must be met: 1) the marriage must be legal; 2) the U.S. citizen must be a resident of the U.S., and 3) the U.S. citizen must be at least 18 years old. If the U.S. citizen is currently living outside the U.S., he or she must submit the immigrant petition to either the local office of USCIS or directly to the US Embassy where the foreign spouse resides. If the spouses are already in the U.S., the immigrant petition and adjustment of status can be submitted simultaneously with USCIS. Spouses of U.S. citizens, and the spouse’s children, can come to the United States on nonimmigrant visas and wait in the United States to complete the process.
Thursday, December 24, 2009
H-1B CAP REACHED
U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. USCIS is hereby notifying the public that Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.
The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.
USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.
The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.
USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.
Wednesday, December 23, 2009
IMMIGRATION CONSEQUENCES OF UNLAWFUL PRESENCE
Unlawful presence in the United States is perhaps the most widely known among the grounds of inadmissibility or denial of visa application. There are no regulations interpreting the concept of unlawful presence. All we have are policy statements from the Department of Homeland Security. Generally speaking, a foreign national who is admitted to the United States on a nonimmigrant visa or in parole status until a certain date and who remains in the United States past the expiration date is unlawfully present. The expiration date is indicated on Form I-94. One who enters the United States without inspection is unlawfully present as well.
Is the foreign national considered out of status when the expiration date on Form I-94 has expired, but he has a pending application for extension of stay? Unlawful presence does not accrue during the gap between the original I-94 and the approval of an application for extension of stay, even if the application was filed after the original I-94 expired. The approval is retroactive to the date of the expiration of the previous status. If the application for extension is ultimately denied, unlawful presence does accrue while the application for extension was pending. Provided, however, that the application for extension was filed before the I-94 expired and it is not frivolous or unworthy of serious attention.
Can unlawful presence accrue even before the expiration of the I-94? The answer is “Yes”. This happens when the immigration judge or USCIS determines that there was a status violation such as accepting employment while on a visitor/tourist visa. The unlawful presence begins to accrue as of the date the order, whether or not the decision is appealed. For F-1 student and J-1 trainee visa holders, who are normally admitted to the United States for duration of status or D/S, violation of their status is the only way they can become unlawfully present. That is because their I-94 does not indicate the date when their status will expire.
When does unlawful presence cause inadmissibility. The three-year bar states that a noncitizen is inadmissible for three years if he or she was unlawfully present in the United States for a period of more than 180 days but less than 1 year. The 180 days of unlawful presence must be during one continuous period. Therefore, if one is unlawfully present in the United States for 179 days, then left, reentered, and was unlawfully present for another 179 days, he or she would not be inadmissible based on unlawful presence. It is important to know that 180 days is not the same as six months. One needs to be precise in counting the days of unlawful presence in order to avoid being barred from returning to the United States. The 10-year bar states that the noncitizen is inadmissible for ten years if he or she has been unlawfully present for one year or more AND again seeks admission within 10 years of the date of his or her departure or removal from the United States. Like the 3-year-bar, the unlawful presence must have occurred during a single continuous stay in the United States. The permanent 10-year bar applies to a noncitizen who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to re-enter the United States without being inspected or admitted. Unlike the 3- and 10-year bars, the period of unlawful presence is the aggregate of all periods of unlawful presence. For example, one was unlawfully present in the United States for six months, then left, reentered and was unlawfully present for another six months, then left and attempted to reenter without inspection. The foreign national is subject to the permanent 10-year bar.
The good news is the Attorney General may waive inadmissibility due to unlawful presence. For the 3- or 10-year bars, the Attorney General may waive inadmissibility if the noncitizen is the spouse or son or daughter of a U.S. citizen or legal permanent resident and it is established that the refusal of admission to such noncitizen would result in extreme hardship to the citizen or legal permanent resident spouse or parent. The permanent 10-year bar may be waived as well but the noncitizen must wait for 10 years from the date of last departure from the United States before he or she can apply for the waiver. The prior 10 years must be spent outside the United States. They should document their residency outside the United States because this is crucial evidence when they apply for the waiver.
Is the foreign national considered out of status when the expiration date on Form I-94 has expired, but he has a pending application for extension of stay? Unlawful presence does not accrue during the gap between the original I-94 and the approval of an application for extension of stay, even if the application was filed after the original I-94 expired. The approval is retroactive to the date of the expiration of the previous status. If the application for extension is ultimately denied, unlawful presence does accrue while the application for extension was pending. Provided, however, that the application for extension was filed before the I-94 expired and it is not frivolous or unworthy of serious attention.
Can unlawful presence accrue even before the expiration of the I-94? The answer is “Yes”. This happens when the immigration judge or USCIS determines that there was a status violation such as accepting employment while on a visitor/tourist visa. The unlawful presence begins to accrue as of the date the order, whether or not the decision is appealed. For F-1 student and J-1 trainee visa holders, who are normally admitted to the United States for duration of status or D/S, violation of their status is the only way they can become unlawfully present. That is because their I-94 does not indicate the date when their status will expire.
When does unlawful presence cause inadmissibility. The three-year bar states that a noncitizen is inadmissible for three years if he or she was unlawfully present in the United States for a period of more than 180 days but less than 1 year. The 180 days of unlawful presence must be during one continuous period. Therefore, if one is unlawfully present in the United States for 179 days, then left, reentered, and was unlawfully present for another 179 days, he or she would not be inadmissible based on unlawful presence. It is important to know that 180 days is not the same as six months. One needs to be precise in counting the days of unlawful presence in order to avoid being barred from returning to the United States. The 10-year bar states that the noncitizen is inadmissible for ten years if he or she has been unlawfully present for one year or more AND again seeks admission within 10 years of the date of his or her departure or removal from the United States. Like the 3-year-bar, the unlawful presence must have occurred during a single continuous stay in the United States. The permanent 10-year bar applies to a noncitizen who has been unlawfully present in the United States for an aggregate period of more than one year, and who enters or attempts to re-enter the United States without being inspected or admitted. Unlike the 3- and 10-year bars, the period of unlawful presence is the aggregate of all periods of unlawful presence. For example, one was unlawfully present in the United States for six months, then left, reentered and was unlawfully present for another six months, then left and attempted to reenter without inspection. The foreign national is subject to the permanent 10-year bar.
The good news is the Attorney General may waive inadmissibility due to unlawful presence. For the 3- or 10-year bars, the Attorney General may waive inadmissibility if the noncitizen is the spouse or son or daughter of a U.S. citizen or legal permanent resident and it is established that the refusal of admission to such noncitizen would result in extreme hardship to the citizen or legal permanent resident spouse or parent. The permanent 10-year bar may be waived as well but the noncitizen must wait for 10 years from the date of last departure from the United States before he or she can apply for the waiver. The prior 10 years must be spent outside the United States. They should document their residency outside the United States because this is crucial evidence when they apply for the waiver.
Monday, November 30, 2009
U.S. CITIZEN STEPPARENT CAN PETITION ADULTERINE OFFSPRINGS
An adulterine is one born of adultery. Some refer to them as adulterine bastards. In the Philippines, we simply refer to them as illegitimate children. How does immigration treat them? I believe the law should not treat them differently. They should not be punished for the sins of their parents.
Family petition is the most common way of gaining legal permanent resident status in the United States. Immediate relative petition is the fastest way of gaining this status. Immediate relatives include minor unmarried children of U.S. citizens. Under immigration law, minority ends at age 21. Children under this category include stepchildren, whether or not born out of wedlock. However, the child must be under 18 years old when the marriage between the stepparent and natural parent occurred. Formerly, the stepparent must show “active parental interest.” This is not required now. The stepparent relationship can outlast the marriage that created it. For example, when the natural parent has died after marriage to the stepparent, the stepparent can still petition for the stepchild. If the stepparent and the natural parent divorced, the stepparent can still petition for the stepchild. However, it must be shown that the stepparent and stepchild relationship continued despite the divorce.
An interesting case came to me last week. The child to be petitioned was born five years after the marriage between the natural father and stepmother as the result of an illicit relationship between the natural father and a woman to who he was never married. The natural mother abandoned the child. Can the stepmother file an I-130 petition on behalf of the child? Does he qualify as a stepchild? Common dictionaries define a stepchild as “a child of one’s spouse by a previous union.” In the instant case, she was not a child by a previous marriage but a product of an adulterous relationship. She is an adulterine.
Immigration law defines child to include “a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” Several cases have evolved and helped clarify the definition of “stepchild.” In one case, the child was born out of wedlock. Five years later, her natural mother got married to a U.S. citizen. The court held that the child was a stepchild under immigration law and eligible for non-quota status. In another case, the petitioner was a stepchild, who had been born out of wedlock, and the beneficiary was the stepmother. When the stepchild reached the age of 21, she filed a petition for the stepmother who remained married to the natural parent. The court held that the husband’s illegitimate daughter was classifiable as a stepchild under immigration law despite the fact that there was no preexisting family unit including the stepparent, stepchild, and the natural father.
The case on point is one decided in 1974, which involves an adulterine. Formerly, the court refused to accord adulterine the status of stepchild. The court held that adulterine children are the issue of adulterous intercourse and are regarded unfavorably than the illegitimate offspring of a single person. The court declined to consider the adulterine child as a stepchild because the marriage that should have created the stepparent relationship did not occur after the birth of the child. The court concluded that there was no stepparent relationship. In 1974 the court changed its position. The rule now as it stands now is – adulterine children should be treated like other illegitimate children. They both fall under the category of stepchildren.
Family petition is the most common way of gaining legal permanent resident status in the United States. Immediate relative petition is the fastest way of gaining this status. Immediate relatives include minor unmarried children of U.S. citizens. Under immigration law, minority ends at age 21. Children under this category include stepchildren, whether or not born out of wedlock. However, the child must be under 18 years old when the marriage between the stepparent and natural parent occurred. Formerly, the stepparent must show “active parental interest.” This is not required now. The stepparent relationship can outlast the marriage that created it. For example, when the natural parent has died after marriage to the stepparent, the stepparent can still petition for the stepchild. If the stepparent and the natural parent divorced, the stepparent can still petition for the stepchild. However, it must be shown that the stepparent and stepchild relationship continued despite the divorce.
An interesting case came to me last week. The child to be petitioned was born five years after the marriage between the natural father and stepmother as the result of an illicit relationship between the natural father and a woman to who he was never married. The natural mother abandoned the child. Can the stepmother file an I-130 petition on behalf of the child? Does he qualify as a stepchild? Common dictionaries define a stepchild as “a child of one’s spouse by a previous union.” In the instant case, she was not a child by a previous marriage but a product of an adulterous relationship. She is an adulterine.
Immigration law defines child to include “a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.” Several cases have evolved and helped clarify the definition of “stepchild.” In one case, the child was born out of wedlock. Five years later, her natural mother got married to a U.S. citizen. The court held that the child was a stepchild under immigration law and eligible for non-quota status. In another case, the petitioner was a stepchild, who had been born out of wedlock, and the beneficiary was the stepmother. When the stepchild reached the age of 21, she filed a petition for the stepmother who remained married to the natural parent. The court held that the husband’s illegitimate daughter was classifiable as a stepchild under immigration law despite the fact that there was no preexisting family unit including the stepparent, stepchild, and the natural father.
The case on point is one decided in 1974, which involves an adulterine. Formerly, the court refused to accord adulterine the status of stepchild. The court held that adulterine children are the issue of adulterous intercourse and are regarded unfavorably than the illegitimate offspring of a single person. The court declined to consider the adulterine child as a stepchild because the marriage that should have created the stepparent relationship did not occur after the birth of the child. The court concluded that there was no stepparent relationship. In 1974 the court changed its position. The rule now as it stands now is – adulterine children should be treated like other illegitimate children. They both fall under the category of stepchildren.
Sunday, November 29, 2009
Intercountry Adoption
One of the significant changes in immigration law was the incorporation of the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption or the Hague Adoption Convention into the rules for adopting children from a foreign Convention country. The Hague Adoption Convention, which took effect on April 1, 2008, introduced a new procedure for adopted children emigrating to the United States from a country which is a signatory to the Convention. The United States and Philippines are among the 75 countries where Hague Adoption Convention is in force. The new rules do not apply to children coming from countries who are not signatories to the Hague Adoption Convention such as Russian, South Korea, Ethiopia, or when the adoption was finalized before April 1, 2008.
The Hague Convention Adoption governs the case if the prospective adoptive parents are considered habitual residents of the United States and the child is a habitual resident of another Convention Country like the Philippines, and the child will be immigrating to the United States To confirm if the Hague Adoption Convention applies to the case, the attorney must look into the “habitual residency” of the parties involved in the adoption. It is not enough to rely on the citizenship of the prospective adoptive parents, or that of the child, to understand whether the case is a Hague case. Under the regulations, a United States citizen with a domicile in the United States, even if he/she temporarily lives abroad, is considered a habitual resident. If the United States Citizen is not domiciled in the United States, he/she will have to establish that he/she will have a domicile in the United States on or before the child's admission in the United States as a lawful permanent resident (LPR); or b) he/she will have a domicile in the United States after adopting the child abroad and before the child's 18th birthday, so that the child may obtain naturalization as a USC. Only then will the United States Citizen be considered a habitual resident of the United States. The child is a habitual resident of his or her country of citizenship.
What if the prospective adopted parents are United States citizen but are domiciled in the Philippines? The Hague Adoption Convention will not apply. They can adopt the child in the Philippines and establish two years physical and legal custody. If the prospective adoptive parents later decide to come back to the United States, they can file an I-130 petition on behalf of the adopted child.
What happens if the child is a citizen of a foreign Convention country but is residing in the United States? On September 29, 2008, U.S. Citizenship and Immigration Services (USCIS) provided guidance on cases like this. USCIS explained that the regulations could be interpreted to permit a finding that a child is no longer a habitual resident of the country of citizenship, and is instead a habitual resident of the United States. In such a case, it will be considered a Non-Hague case and the child may be adopted locally in the United States. Before the case can be considered a Non-Hague case, certain requirements need to be met.
What happens if the adoption was finalized before the Hague Adoption Convention took effect or prior to April 1, 2008? The adoptive parents may pursue the case as an I-130 case and follow the old immigration procedure for petitioning an adopted child. Under such procedure, the adoptive parents must establish two years legal and physical custody before filing the I-130 petition. If the child is an orphan, the adoptive parents may pursue the case as an I-600 case. Only a United States Citizen is eligible to file an orphan petition, provided that the petition is filed prior to the child’s 16th birthday. A child is an orphan: 1) due to the death or disappearance of, abandonment or desertion of, or separation or loss from both parents; or 2) when the sole or surviving parent is incapable of providing proper care for the child and has irrevocably released parental rights to the child in writing for emigration and adoption. If both biological parents are alive but have abandoned the child to an orphanage or other authorized institution of the child’s home country, the child may be considered to be an orphan.
What happens if the case was started before April 1, 2008, and has not been completed when the Hague Adoption Convention took effect? The case may be considered a transition case depending on the facts of the case. The determination whether the case is a transition case can be complicated and it is best to get the advice of an immigration attorney. If the case has not been grandfathered, the prospective adoptive parents have to start the process all over again.
What happens if the prospective adoptive parents obtained custody for emigration purposes and adoption after April 1, 2008? The custody decree must be voided. Otherwise, the I-800 will not be approved. What if the prospective adoptive parents or their relatives obtain temporary custody of the child or provided foster care before April 1, 2008, not for the purpose of adoption. Then, after April 1, 2008, the prospective adoptive parents became U.S. citizens and decided to adopt the child. Will the I-800 be approved? Unfortunately, there is no guidance on this issue. This is only one of the many issues where no guidance has yet been issued by either USCIS or the Department of State (DOS). Inter-country adoption is a complex process and the Hague Adoption Convention is relatively new. We are hoping that USCIS and DOS make liberal interpretation of the regulations so that more children would benefit from the Hague Adoption Convention.
The Hague Convention Adoption governs the case if the prospective adoptive parents are considered habitual residents of the United States and the child is a habitual resident of another Convention Country like the Philippines, and the child will be immigrating to the United States To confirm if the Hague Adoption Convention applies to the case, the attorney must look into the “habitual residency” of the parties involved in the adoption. It is not enough to rely on the citizenship of the prospective adoptive parents, or that of the child, to understand whether the case is a Hague case. Under the regulations, a United States citizen with a domicile in the United States, even if he/she temporarily lives abroad, is considered a habitual resident. If the United States Citizen is not domiciled in the United States, he/she will have to establish that he/she will have a domicile in the United States on or before the child's admission in the United States as a lawful permanent resident (LPR); or b) he/she will have a domicile in the United States after adopting the child abroad and before the child's 18th birthday, so that the child may obtain naturalization as a USC. Only then will the United States Citizen be considered a habitual resident of the United States. The child is a habitual resident of his or her country of citizenship.
What if the prospective adopted parents are United States citizen but are domiciled in the Philippines? The Hague Adoption Convention will not apply. They can adopt the child in the Philippines and establish two years physical and legal custody. If the prospective adoptive parents later decide to come back to the United States, they can file an I-130 petition on behalf of the adopted child.
What happens if the child is a citizen of a foreign Convention country but is residing in the United States? On September 29, 2008, U.S. Citizenship and Immigration Services (USCIS) provided guidance on cases like this. USCIS explained that the regulations could be interpreted to permit a finding that a child is no longer a habitual resident of the country of citizenship, and is instead a habitual resident of the United States. In such a case, it will be considered a Non-Hague case and the child may be adopted locally in the United States. Before the case can be considered a Non-Hague case, certain requirements need to be met.
What happens if the adoption was finalized before the Hague Adoption Convention took effect or prior to April 1, 2008? The adoptive parents may pursue the case as an I-130 case and follow the old immigration procedure for petitioning an adopted child. Under such procedure, the adoptive parents must establish two years legal and physical custody before filing the I-130 petition. If the child is an orphan, the adoptive parents may pursue the case as an I-600 case. Only a United States Citizen is eligible to file an orphan petition, provided that the petition is filed prior to the child’s 16th birthday. A child is an orphan: 1) due to the death or disappearance of, abandonment or desertion of, or separation or loss from both parents; or 2) when the sole or surviving parent is incapable of providing proper care for the child and has irrevocably released parental rights to the child in writing for emigration and adoption. If both biological parents are alive but have abandoned the child to an orphanage or other authorized institution of the child’s home country, the child may be considered to be an orphan.
What happens if the case was started before April 1, 2008, and has not been completed when the Hague Adoption Convention took effect? The case may be considered a transition case depending on the facts of the case. The determination whether the case is a transition case can be complicated and it is best to get the advice of an immigration attorney. If the case has not been grandfathered, the prospective adoptive parents have to start the process all over again.
What happens if the prospective adoptive parents obtained custody for emigration purposes and adoption after April 1, 2008? The custody decree must be voided. Otherwise, the I-800 will not be approved. What if the prospective adoptive parents or their relatives obtain temporary custody of the child or provided foster care before April 1, 2008, not for the purpose of adoption. Then, after April 1, 2008, the prospective adoptive parents became U.S. citizens and decided to adopt the child. Will the I-800 be approved? Unfortunately, there is no guidance on this issue. This is only one of the many issues where no guidance has yet been issued by either USCIS or the Department of State (DOS). Inter-country adoption is a complex process and the Hague Adoption Convention is relatively new. We are hoping that USCIS and DOS make liberal interpretation of the regulations so that more children would benefit from the Hague Adoption Convention.
Could K-2 Visa Holders Age Out of Eligibility for Adjustment of Status?
This is a true story of a man who came to the United States as a non-immigrant K-2 child of a K-1 visa holder, his mother. Let’s call him “Pedro”. Pedro and his mother entered the United States at the same time on December 1, 2002. At the time, Pedro was 20 years old. The mother married her United States citizen fiancé a day after her arrival and later filed an adjustment of status to become a lawful permanent resident (LPR). Pedro’s authorization to remain in the United States expired on December 5, 2002, the day before his 21st birthday. On December 7, Pedro filed an application with U.S. Citizen and Immigration Services (USCIS) to adjust status to that of an LPR based on his entry as a K-2 nonimmigrant. USCIS denied Pedro’s application stating that the marriage creating the step-parent/step-child relationship occurred after the son turned 18. Four years later, Pedro received a Notice to Appear (NTA) from Department of Homeland Security (DHS) charging him with being removable for overstaying his authorization to remain in the United States. While the removal proceedings were ongoing, Pedro married a United States citizen and filed an adjustment of status based on the approved immigrant petition filed by his wife. DHS moved to dismiss Pedro’s application for adjustment of status on the basis that an alien who entered as a K visa may not adjust to an LPR through any other means than through his K-2 status. The main issues in this case were: whether a K-2 visa holder can “age-out” of this status and whether a K-2 visa may adjust through any other means. This case was decided in Minnesota and the Immigration Court decided in favor of Pedro.
The K visa allows the noncitizen fiance(e) to enter the U.S. in order to marry the U.S. citizen within 90 days of admission. A minor child of the fiance(e) who is accompanying or following to join his or her parent is also eligible for a K visa. The nonimmigrant designation for a fiance(e) is "K-1" and the designation for the child of the fiance(e) is “K-2”.
The K-1 nonimmigrant classification was created in 1970 as a means for a fiancé or fiancée to bypass the lengthy wait for a nonpreference immigrant classification and enter the United States as a nonimmigrant despite an intent to stay in the United States. The sole purpose of this visa is to enter into a marriage with the United States citizen petitioner. The K-1 classification allowed the minor child who was accompanying or following to join a K-1 nonimmigrant to enter and adjust status with the K-1. The adjustment of status was automatic upon the occurrence of the marriage. In 1986, Congress eliminated the automatic adjustment, required the filing of adjustment of status petition, and imposed a two-year condition on the status as a legal permanent resident (LPR). The condition applies to both the fiancé or fiancée and the son or daughter of the alien spouse. The amendment also restricted the K visa holders from separately adjusting to LPR under the general adjustment provision of the Immigration Nationality Act. The K statues were silent whether K-2 applicants need to be under the age of twenty-one at the time of adjustment to LPR.
In this particular case, the Court found that the actual age of the K-2 holder is relevant only at the time of entry or admission under a K-2 visa. The Court also found that Pedro was eligible to seek adjustment of status on the basis of his entry as a K-2 nonimmigrant despite the fact that he was 21 years old when he filed his I-485 application. The USCIS, however, has a different interpretation. According to USCIS, the K-2 beneficiary must be a “minor child,” which is defined as an unmarried child under 21. As a result, USCIS imposes an age limitation on K-2 adjustment applicants, and will deny petitions for those who turn 21 while their application is being adjudicated. There is a case pending before the Board of Immigration Appeals (BIA) which will finally resolve this issue. Hopefully, the BIA will follow the immigration court’s interpretation in this case. If BIA does, USCIS has to follow the BIA’s ruling.
Regarding the second issue, the immigration court found that the restrictions on adjustment of status did not apply to Pedro. Therefore, Pedro was also eligible to adjust through the approved petition filed by his U.S. citizen spouse.
The K visa allows the noncitizen fiance(e) to enter the U.S. in order to marry the U.S. citizen within 90 days of admission. A minor child of the fiance(e) who is accompanying or following to join his or her parent is also eligible for a K visa. The nonimmigrant designation for a fiance(e) is "K-1" and the designation for the child of the fiance(e) is “K-2”.
The K-1 nonimmigrant classification was created in 1970 as a means for a fiancé or fiancée to bypass the lengthy wait for a nonpreference immigrant classification and enter the United States as a nonimmigrant despite an intent to stay in the United States. The sole purpose of this visa is to enter into a marriage with the United States citizen petitioner. The K-1 classification allowed the minor child who was accompanying or following to join a K-1 nonimmigrant to enter and adjust status with the K-1. The adjustment of status was automatic upon the occurrence of the marriage. In 1986, Congress eliminated the automatic adjustment, required the filing of adjustment of status petition, and imposed a two-year condition on the status as a legal permanent resident (LPR). The condition applies to both the fiancé or fiancée and the son or daughter of the alien spouse. The amendment also restricted the K visa holders from separately adjusting to LPR under the general adjustment provision of the Immigration Nationality Act. The K statues were silent whether K-2 applicants need to be under the age of twenty-one at the time of adjustment to LPR.
In this particular case, the Court found that the actual age of the K-2 holder is relevant only at the time of entry or admission under a K-2 visa. The Court also found that Pedro was eligible to seek adjustment of status on the basis of his entry as a K-2 nonimmigrant despite the fact that he was 21 years old when he filed his I-485 application. The USCIS, however, has a different interpretation. According to USCIS, the K-2 beneficiary must be a “minor child,” which is defined as an unmarried child under 21. As a result, USCIS imposes an age limitation on K-2 adjustment applicants, and will deny petitions for those who turn 21 while their application is being adjudicated. There is a case pending before the Board of Immigration Appeals (BIA) which will finally resolve this issue. Hopefully, the BIA will follow the immigration court’s interpretation in this case. If BIA does, USCIS has to follow the BIA’s ruling.
Regarding the second issue, the immigration court found that the restrictions on adjustment of status did not apply to Pedro. Therefore, Pedro was also eligible to adjust through the approved petition filed by his U.S. citizen spouse.
The I-601 "Hardship" Waiver
I got a call from a client that the Mexican Consulate had approved our I-601 Waiver. We were both ecstatic. This meant she will be coming back to the United States where her family was waiting. My client is a native of Mexico. Her parents brought her to the U.S. when she was seven years old. They did not go through immigration inspection. My client has been married to a U.S. citizen for nine years and they have two children, ages eight and five. My client had an approved I-130 petition filed by her husband, but her adjustment of status to become a legal permanent resident was denied because she entered the U.S. without inspection twenty years ago. An application for I-601 waiver or hardship waiver is necessary when an immigrant visa applicant has been determined to be "inadmissible" based on one or more ineligibilities. The most common ineligibilities are unlawful presence and fraud in entering the U.S. or obtaining a visa. When the I-601 waiver is approved, the ineligibility is waived and an immigrant visa is issued to the alien applicant. In proving the I-601 waiver, the alien applicant must prove that the qualifying relative would suffer extreme if she or he moves to the applicant alien's country. A qualifying relative could either be a U.S citizen spouse or parent. In addition, it must be proven the qualifying relative can't simply remain in the U.S. without the applicant alien. The term "extreme hardship" means over and above the normal hardship one would expect a qualifying relative to experience if the alien applicant is denied the visa. Some good arguments to support an extreme hardship case would be: serious medical problem of the qualifying relative; minor child from a prior relationship and the noncustodial parent does not consent to the child being taken to the alien's home country; domestic violence concerns, racism or security risk abroad; and unavailable career.
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