K-1 FIANCEE VISA AND US MARRIAGE K-3 IMMIGRATION ATTORNEYS (619) 819-8648

New Law for Resurrecting Dead I-130 or I-140 Petitions

2010-02-17T20:07:00.001-08:00

Under our immigration laws, when the petitioner dies, an approved I-130 is automatically
cancelled. In the 90’s the United States Citizenship and Immigration Services (USCIS) issued a regulation ameliorating the harsh consequence of death of the petitioner by allowing the I-130 petition to be reinstated for humanitarian reasons. In order to seek humanitarian reinstatement or revalidation of a visa petition, the beneficiary of the petition must submit a written request to USCIS office where the original visa petition was filed and/or adjudicated. The petition must have been approved and there must be a qualifying relative who will execute the affidavit of support to be eligible for humanitarian reinstatement. Whether or not to grant reinstatement is a matter of discretion to USCIS. As such, there is no appeal from the denial of the request to reinstate the I-130 petition based on humanitarian grounds.

The approval or denial of a petition for humanitarian reinstatement should be based on “the facts of each individual case, particularly those cases in which failure to reinstate would lead to a harsh result contrary to the goal of family reunification.” In evaluating requests for reinstatement of a petition for humanitarian reinstatement, the following factors are taken into consideration: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if beneficiary is elderly or in poor health; if beneficiary has had lengthy residence in the United States; if beneficiary has no home to go to; undue delay by DHS or consular officer in processing petition and visa; and if beneficiary has strong family ties in the United States. From these enumerated factors, it is evident not all beneficiaries will qualify for humanitarian reinstatement.

The good news is there is an easier alternative to humanitarian reinstatement. On October 29, 2009, President Obama signed a new law which allows beneficiaries to continue to be eligible for adjustment of status even when their qualifying relative has died. Under the new law, the petition does not have to be approved. It is sufficient that a petition has been filed by the petitioner or on behalf of the petitioner before his or her death. The following are the eligibility requirements:

1) The beneficiary must be residing in the United States at the time of death of the petitioner and at the time of application for adjustment of status under this new law; and

2) USCIS must adjudicate the application for adjustment of status unless the approval of the adjustment of status would not be in the public interest.

The new law applies to:

1) Aliens with pending or approved I-130 petitions as immediate relatives such spouse, parent or child under 21 of a U.S. citizen;

2) Aliens with pending or approved I-130 petitions including their spouses and children under 21 under the following categories: F-1 (single adult son or daughter of U.S. citizen), F-2A (spouse and unmarried child below 21 of a green card holder), F-2B (single adult son or daughter of green card holder), F-3 (married child of a U.S citizen), and F-4 categories (brothers and sisters of U.S. citizen;

3) Derivative beneficiaries, which are the spouse and children under 21, of an alien with a pending or approved I-140 petition. An I-140 petition is one filed by an employer as compared to I-130 which is filed by a family member. This means that the derivative beneficiaries can pursue the application for adjustment of status even if the dead primary beneficiary of the petition is no longer working with the petitioner/employer.

4) Pending or approved petitions for asylees, refugees, crime victims, and victims of human trafficking.

For beneficiaries who do not fall under the immediate relative category, they have to wait for their priority dates to be current before they can apply for adjustment of status. Oftentimes, by the time their priority dates become current, they have been out of status in the United States. For these cases, the alien must have the benefit of 245(i) to be eligible to apply for adjustment of status under the October 2009 law of President Obama. In order to qualify for the 245(i) benefit, the I-130 or I-140 petition must have been filed before April 30, 2001. If the petition was filed between January 14, 1998 and April 30, 2001, the alien must establish that he or she was physically present in the United States on December 21, 2000. A beneficiary of a petition filed before January 14, 1998 does not have to establish physical presence in the United States on December 21, 2000.

THE BUMPY ROAD TO PERMANENT RESIDENCY FOR ALIEN SPOUSES

2010-02-11T22:17:00.000-08:00

For Valentine’s day, I want to share with you a story of a young Filipina’s fight for her permanent residency after her American husband abandoned her. Despite seemingly insurmountable difficulties, she won her immigration case.
Sometime in September 2008, a friend told me a sad story about a Filipino woman who came in the United States as fiancée of a U.S. citizen but was abandoned by her U.S citizen husband four months into the marriage. Let’s call her “Teresa.” My friend said Teresa has no money, no job and was living with a distant relative. I told my friend to give her my phone number. Teresa called me from New Jersey. She was crying while narrating her story. Teresa was broken hearted and feeling helpless. The American guy left her when his old girlfriend accepted him back. He did not even wait for Teresa to have an employment authorization or conditional green card, documents she need to survive in this country. I accepted the case with no hesitation.

Teresa’s love story was a whirlwind romance. She met the American guy online and they fell in love in a short period of time. The guy went to the Philippines to meet her and her family in person. Everything went well. They liked each other and the American guy decided to file the fiancée visa petition. To make the story short, the fiancée petition was approved and they got married in New Jersey. They did not hire an attorney when they filed for Teresa’s adjustment of status to become a conditional legal permanent resident. For this reason, they committed a lot of mistakes. They did not fill out the Affidavit of Support correctly. Teresa received a Request for Evidence (RFE) from the U.S. Citizenship and Immigration Services asking her to submit a revised Affidavit of Support. The problem was when Teresa received the RFE, her U.S. citizen husband was already living with her new girlfriend and he did not want to help Teresa with her immigration papers. Under our immigration laws, the petitioner spouse should execute the Affidavit of Support.

My first concern was the RFE. If we don’t respond to the RFE, Teresa’s application for a conditional green card will be denied. If this happens, she needs to go back to the Philippines. We needed his ex-husband to sign the Affidavit of Support. He did not want to do this, he wanted Teresa to be deported. A few weeks later, Teresa received a copy of the Petition for Annulment of marriage. I advised Teresa to use the annulment proceedings as leverage and to negotiate with her ex-husband. She will not file any opposition to the annulment proceedings provided he signs the Affidavit of Support. Teresa was scared to speak with her ex-husband and was willing to go home to the Philippines. I was able to convince her to talk to him and coached her everything to say. It worked and her ex-husband signed the Affidavit of Support that I prepared. We submitted the response to RFE and Teresa got her employment authorization card and conditional green card. She was very happy because she could work and does not have to be scared of immigration officers. She feared that one day an immigration officer will show up at her doorstep and handcuff her for deportation.

Since Teresa’s lawful permanent resident status was only good for two years, she needed to file a petition to lift the condition within 90 days before her conditional green card expires. We did not wait for this period. Since the annulment became final before her first year wedding anniversary, we filed the waiver for joint filing of petition to lift the condition a few weeks after we received the decree of annulment. For cases like this, the hard part is proving the parties entered the marriage in good faith. It was a good thing that Teresa is a very organized person. She kept all their love letters, emails, greeting cards, pictures, joint bank account statements, health insurance card, and letters from friends and relatives. A piece of advice to those who are on conditional legal permanent resident status: keep those love letters, joint bank account statements, pictures, lease agreement, health insurance card, car insurance, and other documents showing commingling of funds and property. Teresa’s mother-in-law was a big help. They remain friends up to now. Her mother-in-law paid for my fees and wrote a letter to USCIS stating that she believes her son and Teresa married for love, but her son rekindled his love with an old girlfriend and left Teresa. Another piece of advice: be good to your in-laws and step-children. Letters from them about the marriage are very credible.

Three days ago, I received a notice from USCIS that Teresa’s permanent green card will be issued in a few weeks. I was very happy for Teresa. She will have to wait for five years to become a U.S. citizen. She plans to petition her mother and brother. Teresa may also file her own fiancé visa petition. Hopefully, they will have a happy ending. I wish you all a happy Valentine’s day.

ASIAN JOURNAL a San Diego original. The first in Ca, USA. A Filipino American weekly. Online Digital Print.

2010-02-08T12:56:00.000-08:00

ASIAN JOURNAL a San Diego original. The first in Ca, USA. A Filipino American weekly. Online Digital Print.

THE 10TH CIRCUIT FINDS K-2 VISA HOLDER OVER 21 YEARS OLD DID NOT AGE OUT

2010-01-27T20:57:00.000-08:00

This article is the answer to my previous article entitled “COULD K-2 VISA HOLDERS “AGE OUT” OF ELIGIBILITY FOR ADJUSTMENT OF STATUS? On January 12, 2010, the Court of Appeals 10th Circuit issued a decision stating that K-2 visa holders over twenty-one years old did not age out. For those who were not able to read my previous article, the facts of the case of are as follows. In 2002, Pedro, along with his mother, entered the United States on a K visa. K visa allows alien fiancées/fiancés (K-1 visa holders) and their children (K-2 visa holders), to enter the United States to marry United States citizens. Under our immigration laws, upon such a marriage, eligible K-1 visa holders and their children under age twenty-one may adjust their status to that of lawful conditional permanent residents. Pedro, upon the marriage of his mother to a United States citizen, and six months prior to his 21st birthday, applied for an adjustment of status to become a lawful conditional permanent resident. Two-and-one-half years after he filed his application, the United States Citizenship and Immigration Services (USCIS) denied his request on the ground that he was no longer under age twenty-one. An immigration judge agreed with that conclusion and the Board of Immigration Appeals (BIA) affirmed. Pedro appealed and argued that he need not be under 21 when the application for adjustment of status was adjudicated and that it is enough that he was under 21 when he filed it. Pedro won. The Court of Appeals concluded that a K-2 visa holder who timely applies for an adjustment of status must be under twenty-one when he or she seeks to enter the United States, not when his or her subsequent application for adjustment of status is finally adjudicated. In other words, it is the date on which a K-2 visa applicant seeks to enter the United States that should be used to determine whether he or she is a “minor child.” I think it is safer to interpret “seeks to enter” as the date that the K-1 and K-2 visa applications are filed with the consular officer in the country of origin.

There are six steps involved in obtaining lawful permanent resident status for K-1 and K-2 visa holders. First, on behalf of the alien and his or her minor children, the U.S. citizen must file a fiancé(e) petition with USCIS. In order for the petition to get approved, the U.S. citizen must establish, among other things, that he or she and his or her fiancé(e) had previously met in person within 2 years before the date of filing the petition and are legally able and actually willing to conclude a valid marriage in the United States within a period of ninety days after the alien’s arrival. Second, upon the USCIS’s approval of the fiancé(e) petition, the alien and his or her minor children must apply for K visas with the United States consular office in their country of origin. Under our immigration laws, a “child” is defined as an unmarried person under twenty-one. Third, once the K visas are issued, the fiancé(e) and his or her minor children may enter
the United States. Fourth, the citizen and his or her fiancé(e) must marry within ninety days of the fiancé(e)’s entry. If the marriage does not occur within 90 days, the fiancé(e) and his or her children must depart from the United States. If they do not depart, they are subject to removal. This is true even if the alien found another fiancé or fiancée to file a petition on her or his behalf. Fifth, the alien and his or her children must file an application for an adjustment of status to become a lawful permanent resident of the United States. If approved, the status is conditional for two years. The last step is the filing of petition to have the conditional status removed. This is done during the 90-day period before the second anniversary of the alien’s obtaining the status of lawful admission for permanent residence.

I believe the decision of the Court of Appeals was in accordance with the basic principles of common sense and fairness. An individual who obtained a K-2 visa and applied for an adjustment of status several years before his or her twenty-first birthday would have no way of knowing when his or her application will be adjudicated. If USCIS does not act on the application for years and the K-2 visa holder turns 21 before it is adjudicated, then her or his efforts and time are rendered useless. The Congress does not intend or authorize such an unfair practice.

Getting Your Foreign Spouse A U.S. Visa.

2009-12-24T19:34:00.001-08:00

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.

H-1B CAP REACHED

2009-12-24T01:12:00.001-08:00

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.

IMMIGRATION CONSEQUENCES OF UNLAWFUL PRESENCE

2009-12-23T22:51:00.001-08:00

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.

U.S. CITIZEN STEPPARENT CAN PETITION ADULTERINE OFFSPRINGS

2009-11-30T20:16:00.001-08:00

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.

Intercountry Adoption

2009-11-29T17:26:00.000-08:00

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.

Could K-2 Visa Holders Age Out of Eligibility for Adjustment of Status?

2009-11-29T17:24:00.000-08:00

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 I-601 "Hardship" Waiver

2009-11-29T14:07:00.000-08:00

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.