how to bring your loved ones to the u.s. - immigration ebook

SJB’S GUIDE TO FAMILY-BASED IMMIGRATIONSPONSORSHIP, GREEN CARDS & THE VISA PROCESS

February 2015

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SJB’S GUIDE TO IMMIGRATION LAWFebruary 2015

CONTENTSTABLE OF

1. SECTION ONE 3 How Can I Sponsor A Relative? 3 Who Can Lawful Permanent Residents Petition To The U.S.? 6

Who Can U.S. Citizens Petition To Bring To The U.S.? 8

2. SECTION TWO 10 What Documents Will My Relative Need To Get A Visa? 10

How Do I Become A Permanent Resident? 13 What Happens After My I-130 Is Approved? 16

3. SECTION THREE 18 How Long Will It Take To Bring My Relative To The U.S.? 18 Adjustment Of Status Inside The U.S. 21 What Are The Pros And Cons Of Self-Representation? 23

4. SECTION FOUR 26 What Could Disqualify My Relative From Adjusting Status? 26 What You Need To Know About Waivers 29 Can I Appeal If My Relative Has Been Denied A Visa? 31


3

HOW CAN I SPONSOR A RELATIVE?

Generally, visa sponsorship is a multi-step process:

1. Fill out an I-130 application for each visa recipient.

2. File an affidavit that outlines a plan of support for visa recipients.

3. Provide supporting documentation as required by United States Citizenship and Immigration Services (USCIS).

4. File any necessary waivers and the visa application (either through the consulate or stateside).

There are exceptions where your relationship to the applicant matters. We will review those exceptions now.

What If My Fiancé Applies To Enter The United States?This applies to any engaged United States citizen. The requirements in this case are very specific. Once the visa application is approved, your fiancé can pick the visa up through the consulate or embassy in their home country.

A fiancé visa is a one-time option that a non-immigrant can use to temporarily enter the states. Under this visa designation, your wedding ceremony has to take place within 90 days of admittance. You can apply for one 90-day extension that runs consecutively to the original three-month period.

There are things to be aware of regarding this visa status:

1. If your fiancé marries someone other than you, OR,

2. If you fail to get married after 90 days (or extension period),

4SJB’S GUIDE TO IMMIGRATION LAWFebruary 2015


Your fiancé will be asked to leave the U.S. until the marriage takes place. If they wish to apply for re-entry after this occurs, they will need to submit a new application using a different designation.

What If My Relative Wants To Live And Work In The United States?Being a non-immigrant who is here on conditional or temporary terms, your loved one must go through the proper channels to become a permanent resident. The ability to obtain work authorization is dependent on your loved ones status upon entering the country. Those who were sponsored by employers will have the ability to work here. Those who can apply for a visa while remaining in the U.S. may also be eligible for “seek work authorization,” or there may be other options for a work permit.

AN ATTORNEY CAN HELP PRESERVE, prepare and protect the status of immigrants and sponsored non-immigrants.

What Happens If The Visa Application Is Denied?Denials happen. It’s a fact of immigration law and it is not an easy pill to swallow. The good news is you do have a right to appeal a decision that is unfavorable. The bad news is you have a limited and strict time frame in which to submit that appeal.

The clock on the appeal starts as soon as the original decision is reached. From that moment, you have 30 days to file for an appeal. Your case will be reviewed by the correct appellate jurisdiction. You may file additional paperwork as it relates to the decision, which includes an explanation of the grounds for the appeal.

Based on the information provided, the appellate authority will reach one of the following decisions:

1. Agree with you and overturn the original decision

2. Disagree with you and reinstate the original decision

3. Refer case for further review or action

http://www.sjblawfirm.com/legal-blog/immigration-paths-to-permanent-residency


There is one other option besides an appeal that you can file with the deciding office. It is a motion to reopen or reconsider the case. This option applies in two instances:

1. New facts have arisen that impact the outcome of the application.

2. You can prove that immigration law was improperly used in the original decision.

In either case, supporting evidence and documentation must be provided that substantiates your reasons for having the case re-examined. All paperwork must be filed, with the proper filing fee, by the same 30-day deadline.

As with many of the other instances we’ve discussed, preparation is essential. Attorney filing waivers can help speed the approval process up and in the event of a denial, the skills of an experienced attorney can help salvage your application as well as immigration status.

Many immigrants realize too late that the outcome of sponsorships or legal proceedings can impact their personal status with USCIS. An attorney can help preserve, prepare and protect the status of immigrants and sponsored non-immigrants alike, especially where personal relationships are concerned.

The Immigration and Nationality Act (INA) contains the law in these matters. A practicing immigration attorney can help explain and apply those laws on a case by case basis, an invaluable resource for all applicants.


http://www.sjblawfirm.com/legal-blog/how-to-check-the-status-of-an-immigration-visa


6

WHO CAN LAWFUL PERMANENT RESIDENTS PETITION TO THE UNITED STATES?

Green Card holders and United States citizens each have the right to request that certain family members be brought to the states through the visa process. The difference in how these requests are processed depends on whether or not it comes from a citizen or a permanent resident (Green Card holder).

How Does Permanent Residency Affect Visa Sponsorship?There are a couple of specific areas where a Green Card (rather than citizenship) does affect sponsorship. First, it dictates who you can sponsor. The sponsorship for permanent residents is limited to immediate family members. You can only sponsor a spouse and any unmarried children.

Your sponsorship rights do not extend to siblings, parents, married children or a fiancé unless or until you become a fully naturalized citizen.

You will be required to submit the same I-130 application, affidavit and documentation as a U.S. citizen, but your application will be processed slightly differently. Under United States Citizenship and Immigration Services (USCIS) regulations, sponsorship from a citizen is given first priority; all other applications are secondary. This means that your relatives should be prepared to go onto a waiting list for several weeks or months before they are granted a visa. This is in addition to normal processing times for visas.

APPLICANTS AND SPONSORS ALIKE need a well-versed go-between to act as a bridge between where they are and where they want to be.


Can USCIS Ask For More Information Regarding Sponsorship?Yes. In fact, they typically do. You will have to submit information not only related to your own immigration status, but also information regarding how you plan to help support your family members once they immigrate to the states. All of this is taken into account when each application goes under review.

It can take a while for family members to come off of the waiting list. If there are legal matters involving either the sponsor or their family members, the waiting period will be significantly longer. The legal matters must be resolved before a sponsorship decision can be made. There is a backlog in immigration court, so it can take a year or more for any legal roadblocks to be dealt with.

The Best Strategy For Sponsorships To Be Handled QuicklyPreparation. This needs to be about more than just filling out the proper paperwork. You should always have information and documentation relating to your immigration status on-hand. If you are aware of or involved in any legal action, realize that the outcome of your case could affect how USCIS processes any pending I-130 applications.

The more complex an individual situation may be, the more it can hold up an entirely separate process. Due to the complexities already present in immigration law, legal counsel is highly recommended. A good immigration lawyer can help you fill out paperwork completely, get all of your supportive ducks in a row, and minimize or manage delays that may crop up.

Realistically, immigration sponsorship is a three-step process, but factors can enter the equation that add steps, require representation and reorder immigration priorities. If this should happen, applicants and sponsors alike need a well-versed go-between to act as a bridge between where they are and where they want to be. An immigration lawyer can be that bridge.

WHO CAN LAWFUL PERMANENT RESIDENTS PETITION TO THE UNITED STATES?


8

WHO CAN U.S. CITIZENS PETITION TO BRING TO THE UNITED STATES?

There are several scenarios in which an immigrant or non-resident alien can petition thedepartment of U.S. Citizenship and Immigration Services (USCIS) on behalf of a loved one.The petition paperwork, process and timeline depend on the immigration status of the personentering the request.

Are There Restrictions On Which Family Members Can Be Brought To The U.S.?Yes. As you can imagine, the goal of the petition process is not to create a free-for-all on family-related visa applications, but rather to give essential family members who have followed the proper procedures a chance to be reunited on American soil. This goal immediately leads to a follow-up question: What is an essential family member?

By USCIS definition, an essential family member of a U.S. citizen is considered to be:

• Spouses

• Children

• Parents

• Brothers and sisters

There are no age or marital restrictions on the children or citizens. This means they can apply for a visa even if they are over the age of 21 and/or married. Their spouses would be extended the same immigration consideration. However, you can only petition for family members if you are a U.S. citizen over the age of 21 yourself.

Remember, there is a difference between a citizen and a permanent resident (Green Card holder). A Green Card holder can only petition to sponsor their spouse and unmarried children. If a permanent resident wants to petition for other family members, they must first become naturalized citizens.

http://www.sjblawfirm.com/legal-blog/the-difference-between-a-green-card-and-becoming-a-naturalized-citizen


What Forms Need To Be Filled Out To Get The Petition Rolling?Approval of a petition is a three-step process. It starts with filing an I-130, also known as a Petition for Alien Relative. It must be filled out completely, correctly and signed. Failure to do so will result in the application being rejected.

Please be sure to include the following proof with each application (each family member should have a separate application):

• Proof of your relationship

• Evidence of your citizenship status

• Appropriate filing fees

Assuming a complete application is received and approved, the sponsoring immigrant will be asked to sign an affidavit outlining how they plan to support their family member(s) once they arrive on American soil. This is referred to as an I-864/affidavit of support. The final step occurs when USCIS authorizes a visa allowing your family member to enter the U.S.

Some people say there are differences in timelines; others claim there are no differences. Which one of these viewpoints is correct? There are timeline differences. Immediate family members of citizens can skip the waiting list and get an expedited approval. This includes:

• Spouses

• Unmarried children under the age of 21

• Parents

All other family members have to be added to the USCIS waiting list until they are approved for a visa from their country. Green Card holders do not receive the same priority. Citizens are treated as first priority and those with a Green Card receive secondary priority. Since the process may take longer for extended family and applicants sponsored by permanent residents, it is recommended you start the process as soon as your receive a qualifying immigration status.

While this process looks simple on paper, things can get complicated rather quickly in immigration law. In order to get documents properly filed in the first place, you should practice due diligence and speak to an experienced immigration attorney. An attorney can also help to track the status of an application and minimize delays.

It’s important to realize that immigration law in the U.S. is always changing. An adept immigration attorney will be aware of these changes and how they impact individual cases from year to year. That kind of insight can make an invaluable difference while waiting for a loved one to join you stateside.

WHO CAN U.S. CITIZENS PETITION TO BRING TO THE UNITED STATES?


10

WHAT DOCUMENTS WILL MY RELATIVE NEED TO GET A VISA?

There are several steps to sponsoring an immigrant relative for visa status in the United States. In addition to providing a complete sponsorship application and affidavit, you will be expected to provide supporting documentation to United States Citizenship and Immigration Services (USCIS).

This documentation is loosely defined as:

• Proof of sponsoring immigrant’s status

• Proof of relationship to applicant

• Proof of employment and tax history

In reality, providing this paperwork can be extensive and depending on how many relatives you are sponsoring, things can get complicated rather quickly.

Can I Sponsor Any Relative?Legally speaking, only immigrants with a certain status can sponsor relatives overseas. You have to be able to provide proof of permanent residency or citizenship before the visa procedures can get rolling. This is not the only restriction you will face.

Depending on your status, you can only sponsor immediate or essential family members, which means limits are put on how many visas you can apply for.

The list can include:

• Spouses and/or fiancés (can be granted special limited visa)

• Children (married or unmarried, as your status will dictate)

• Parents

• Siblings


USCIS has to be able to verify the relationship of each individual applicant to their sponsor. Doing so takes into account eligibility, age and the approval priority. Family members who do not fit into these categories or applicants excluded by immigration status must enter the visa process like any other immigrant. If the sponsoring relative dies before a visa can be obtained, the petition automatically terminates and the individual sponsored will not be able to come to the U.S.

Employment and tax history provide USCIS with proof of legal residency going back three to five years. It also goes to strengthen your affidavit statement of how you plan to support your relatives once they come to the U.S.

Criminal history also enters the sponsorship picture. This applies to both you and your relatives. Certain criminal activity will stop the sponsorship process in its tracks. This can be true even if the legal issue is resolved. You may be prohibited from visa sponsorship or your relative may be barred from entering the country. Criminal infractions are reviewed on a case by case basis.

What Documentation Is Required For Sponsorship?The list includes, but is not limited to:

• Proof of your status (birth certificate, naturalization certificate, lawful permanent resident card)

• Proof of the relationship (marriage certificate, birth certificate listing parents, birth certificates of children, birth certificates of siblings or possibly DNA testing)

• G-325A biographic data sheets (listing addresses and employment for the last five years)

• The past three years of taxes filed with the Internal Revenue Service (IRS)

• Any criminal record of you or your relative

• Passport photos of you and your relative

• A copy of your relative’s passport

• Documents showing you are in a legitimate relationship with your spouse

• Medical examination paperwork of your relative

• Any documentation needed for waivers

• Any other documentation specifically requested by the government

Copies of this information and any additional support documentation must be supplied for each individual applicant.



Are There Any Additional Documents Family Members Have To Bring To The Visa Interview?Yes. They may receive a conditional visa approval from USCIS, but they must complete an interview before getting the actual visa and/or change of status.

The officer reviewing the case will require:

• Your DS-160 application confirmation page with the bar code and your original Ecobank MRV receipt

• A passport valid for at least six months after entry is expected

• A recent 2x2 photo with a white background (taken within the past six months)

• All previous U.S. visas, even if expired

THERE IS A LOT OF BACK AND FORTHduring the visa process.

You may also be asked to provide information on the purpose of your travels, as well as your social, financial and personal ties to the country. If you are traveling with someone age 17 or younger, proof of relationship and guardianship papers will be required. Visiting students need to produce an I-20 and a DS-2019 as well as required fees.

There is a lot of back and forth during the visa application process. This juggling act not only involves your family members and USCIS, but also embassies and consulates overseas. Gathering the necessary documentation on each family member can be a trial in itself. A good immigration lawyer can keep this process organized and manageable. A lawyer can also minimize stress and confusion by acting as a go-between and representing a sponsor and his or her family.



13

HOW DO I BECOME A PERMANENT RESIDENT?

Bringing a relative to the United States is a process that can take years to complete. By the time the I-130 application is filed, families have reason to be excited, but they may also have questions about what comes next. This is only natural. After all, you have made it this far in the process, right? Your goal is in sight. Now, it’s all about reaching that goal and lawfully immigrating to the states.

Why Is An I-130 Interview Necessary?Immigrants tend to expect interviews as a standard part of the visa application process. The two most common ones are:

1. Visa interview

2. Adjustment of Status/Consular Processing interview

These appointments occur later in the immigration process. The lesser known I-130 interview isn’t always necessary, but it does come into play when there are questions about an applicant’s relationship to their sponsor. It usually occurs if removal proceedings are in process, an immediate family member has already been deported, or in cases where immigration fraud is suspected.

THE [VISA INTERVIEW] IS NOT THE MOST comfortable interview to undergo, but the process is survivable.

http://www.sjblawfirm.com/legal-blog/how-to-prepare-for-an-immigration-visa-interview


How Should You Prepare For A Visa Interview?You will be contacted by United States Citizenship and Immigration Services (USCIS) to schedule the interview. In the letter you receive, you will be asked to bring certain documents with you. These documents may pertain to your relationship with an applicant, biographical information, your affidavit of support or the circumstances of any legal action that may be taking place.

This is not the most comfortable interview to undergo, but the process is survivable. Be sure to keep the following three rules in mind:

Rule No. 1: Bring all of the required documents with you. Failure to do so will result in rescheduling the interview and delaying the process even further. Additionally, failure to bring required documents can result in denial of the petition.

Rule No. 2: Prepare, but don’t overdo it. In many cases, some difficult topics may be raised during the interview, especially regarding the removal process. Don’t let this throw you off too much. Think about how you would answer questions about knowledge of immigration fraud, circumstances of deportation and legitimacy of your relationship ahead of time.

After you’ve given it some thought, run through a mock interview with an immigration attorney. This will prepare you reasonably well for answering difficult questions without your answers sounding too rehearsed. The most important thing to remember is to always be entirely truthful with the immigrant officer; lying will result in a denial and possibly in criminal charges or deportation. You don’t want your responses to sound practiced or coached. Keep a calm, clear demeanor and answer the questions honestly.

Rule No. 3: Ask for what you need in order to complete the interview. This includes the services of an interpreter and the counsel of a good immigration attorney. Even if the legitimacy of your I-130 application is being questioned, you are within your rights to make sure you fully understand these proceedings. Never forego requesting the services you need to make that possible.

Can My Spouse Or Relative Come To The Visa Interview?It really depends on the circumstances involved. If your spouse or immediate relative is already in the U.S., chances are the interview will be a joint one. However, if they have already been deported or they are still waiting overseas, USCIS will reach out through the National Visa Center (NVC) to have a similar interview conducted with your loved one by a Consular Processing Officer.



That said, even in joint interviews, you should expect to be separated at some point. When trying to establish facts or the sequence of events, USCIS often separates the interviewees to establish individual knowledge and an accurate timeline. This does not mean you are in trouble or that your answers are somehow being called into question. Rather, because the questions might be of a sensitive nature (the health of your marital relationship, questions about your children, information about your family, etc.) you may be required to answer them individually. Just answer honestly.

Most likely you will not be given an oral decision when the interview concludes. The decision will be sent through professional channels instead. You can expect to be notified about the status of the application in writing within 90 days of the interview. A loved one who is overseas will be notified by the NVC’s contact within their consulate.

If you are in the middle of removal proceedings, your attorney can help you present an I-130 approval to the court, stop the proceedings and seek a status adjustment.



16

WHAT HAPPENS AFTER MY I-30 IS APPROVED?

The I-130 is the most common form filed in the immigration process. It is the first step in becoming a permanent resident, proving as the petitioner that you have a legitimate relationship with the sponsored immigrant (beneficiary). Even when the purpose of this form is spelled out that plainly, people have great difficulty understanding both what that means and what happens next. We intend to address these difficulties.

When Do I-130 Approved Applicants Get Their Green Cards?Not for quite some time in many cases. Applicants often think that the I-130 approval is the same as a visa approval; it is not. You are simply one step closer to your visa because United States Citizenship and Immigration Services (USCIS) has proven that you are in a legitimate relationship with someone eligible to sponsor you. Whether you get your visa and adjust your status actually depends on when a visa number becomes available to you and other eligibility considerations.

ALWAYS WORK WITH LICENSED ATTORNEYS. Your family’s future depends on the outcome.

There are a limited number of visas available per year. To keep the process organized and manageable, USCIS and the National Visa Center (NVC) use a preference system to categorize applicants. Petitioners with special status (like asylum or a fiancé visa) and immediate relatives are exempt from the preference system, meaning their visa number is immediately available.

For all other petitioners, your place in the availability line depends on:

• Priority date (date your I-130 was received by the government)

• Category (your relationship with the sponsor)

• Country of origin


It can take anywhere from six months to 15 years for a visa number to become available. Once it does, there are other steps you must follow to change your status and apply for permanent residency or a Green Card.

What Is the Difference Between Adjustment Of Status And Consular Processing?Adjustment of status applies to immigrants already in the United States. Consular processing applies to immigrants who are either overseas or who choose to be or MUST be processed through the NVC instead of USCIS. This is the basic difference, but how an immigrant enters the U.S. may also determine which process they go through.

Adjustment of status is often reserved for lawful immigration. While there is some allowance (180 days) for unlawful presence in the U.S., that time is meant to be used for an adjustment approval, not to wait out your clock on visa availability. This is one of many immigration issues where timing is truly everything.

If you accrue more than 180 days of unlawful presence, you can be subject to removal, even if your I-130 has been approved. Removal comes with a three to 10 year bar of admissibility unless you file the necessary waivers and pay the required fees first. If you can prove hardship or only need to leave to complete consular processing, be sure to get those waivers ahead of time. Any attempts to enter the U.S. after a bar has been issued will result in a permanent bar of admissibility, for which there is no waiver.

My I-130 Was Handled By An Immigration Consultant Who Entered Me In A “Jackpot.” Am I Exempt From Removal?Wrong. If your visa number isn’t available and you immigrate to the U.S. with nothing more than an approved I-130, you will likely be removed for unlawful presence or barred from re-entry when you return to your home country for the interview process. It is very important that you follow these processes to the letter.

First, file the I-130. Upon its approval, wait for your visa number to become available. You will be notified when your visa number is about to be active. This is the time to get your final residency ducks in order.

File for any necessary waivers, provide documentation, go through medical exams and interviews. Do not leave your fate in the hands of an unauthorized “immigration consultant.” Always work with licensed attorneys. Your family’s future depends on the outcome.

WHAT HAPPENS AFTER MY I-30 IS APPROVED?


18

HOW LONG WILL IT TAKE TO BRING MY RELATIVE TO THE UNITED STATES?

It’s no secret the visa process is a long one, even if you are sponsoring a relative. United States Citizenship and Immigration Services (USCIS) must follow regulatory protocols when allowing individuals to enter the United States. There are a few details that can help you manage your time on the visa clock.

When Will My Visa Be Approved?There are a few factors that USCIS considers during the process, and yes, priority is one of them. Most permanent residents know their visa sponsorships are a secondary consideration when compared to sponsorships from citizens, but even this isn’t a hard and fast rule.

The first thing an immigration officer will tell you is that a relative visa is not guaranteed. After that, the applications are organized by:

• An applicant’s age

• Their relationship to you as the sponsor

• Your immigration status

Highest priority is given to spouses and unmarried children under the age of 21. In the interest of keeping families together, these applications are usually processed and approved within six to nine months. The average wait for a visa is 8 to 12 months. These visas are put into specific visa categories. If the petitioner for the spouse is a citizen, there is no wait period for a visa.

What If Relatives Do Not Qualify As “Immediate Relatives?”This is where status comes into play, meaning that it depends on what country your relative isfrom and what relationship they have with the sponsor. Spouses and unmarried children have the lowest waiting period for a visa. Married children over the age of 21, their spouses, your parents and extended family members are put into other categories. The relatives of citizens are processed first; relatives of Green Card holders are processed second.



There is a waiting list in each category. Given the influx of relative visa applications, you could be waiting anywhere from one year to 15 years for a visa approval in your category (brothers and sisters of sponsors have the longest waiting periods). That feels like an eternity for the relatives waiting on either side of the sponsorship process, but visa availability isn’t the only holdup.

HIGHEST PRIORITY IS GIVEN TO spouses and unmarried children under the age of 21.

The embassies and consulates in home countries can often throw their own wrenches into the approval process. USCIS requires a certain amount of documentation during the application process. Delays in providing that evidence can greatly slow down any approvals. In addition, the home country usually requires that each applicant complete a visa interviewbefore they leave for the U.S. Depending on your approval category, you will be expected to provide specific documentation, affidavits and fees prior to the interview. All information must be made available prior to that interview or you will have to reschedule it.

Officials in the home country will most likely expect information about:

• Valid sponsorship application

• Valid form of photo ID

• Valid travel documents

• Reason for your travels

• Details about your personal, financial and social ties to the country

• Proof of relationship or guardianship if traveling with a minor

• Proof of student status

• Any possible criminal activities

• Appropriate fees

• Medical examination results

Requirements vary by country and they can get very extensive. The better you prepare your overseas relatives for the process, the smoother it will probably go.


What Resources Are Available To Immigrants To Help Manage The Visa Process?There are general and specific resources available at all times that can help immigrants andtheir families keep track of the visa sponsorship.

Generally, you can check for visa availability by accessing the state department visa bulletin, which is available online. USCIS and other immigration services usually recommend acquiring a more specific type of help as well.

An immigration lawyer can tell you what the likelihood of getting an approval really is. As stated earlier, relative visas are not guaranteed. Applicants can be denied if they:

• Submit fraudulent documents

• Have health-related restrictions

• Have a history of certain criminal activities

• Are tied to a terrorist organization

• Answer questions untruthfully

These are just a few examples that can lead to a denial. Denials also raise a red flag stateside. They can bring sponsors under increased scrutiny as well as applicants. It’s best to know the odds before the visa application gets filed. An immigration lawyer can walk you through that and minimize delays, especially on the documentation side of things. If necessary, find representation that is familiar with the visa process in your home country to really speed things along.



21

ADJUSTMENT OF STATUS INSIDE THE UNITED STATES

A number of forms get filled out and passed around during the immigration process. Once you finally make it to the United States as a sponsored non-immigrant, you may be eligible to apply to adjust your status to permanent residency inside the U.S.

Not to be confused with the I-130, which is the petition filed by your family member to prove a legitimate relationship exists, the I-485 changes your status to a lawful resident of the U.S.

THE ADVICE OF AN ATTORNEY CAN BE INVALUABLE, especially considering the backlog of applications currently on file with the USCIS.

Why are you encouraged to apply so quickly after your arrival? Honestly, it depends on the terms of your visa. For instance, a fiancé visa requires marriage within 90 days of arrival and expires if marriage is not completed in that time frame; additionally, an individual must file their adjustment in a specific time frame after arrival. You must get married and apply for an Adjustment of Status in that time or you will be deported or will have to return to your home country.

If your relative applies for an I-130 petition and that petition is approved, you cannot come to the U.S. until a visa is available for you to adjust your status and until you have applied for a visa number. The sooner you apply, the better, as visa numbers are capped and limited annually. There is an exception for “immediate relative” petitioners.

Are Immigrants Being Encouraged To Apply For Consular Processing Abroad?In a nutshell, yes. Consular Processing is faster and easier to obtain than an Adjustment of Status stateside. The average wait for approval from your home country is usually just shy


ADJUSTMENT OF STATUS INSIDE THE UNITED STATES

of a year, compared to over a year through United States Citizenship and Immigration Services (USCIS). The officers who review these applications do not deny requests based on discretion (only ineligibility), so a high percentage of approval is likely.

That being said, there is one major pitfall to look out for: the lack of an appeals process. Given the chance that your application is denied by your home country, that decision is final. You cannot dispute it. This fact alone is enough for a lot of visa holders to go through the Adjustment of Status process instead; at least they retain the right to judicial review if their request is denied. However, you may not be eligible to adjust your status inside the U.S. if you are currently residing in the country illegally and without status.

Can An Immigrant Apply For Both Consular Processing And An Adjustment Of Status At The Same Time?This may seem like the smartest avenue to get the best results, but it isn’t. Applying for both designations is actually considered an abuse of the system. Do so, and you can get into legal trouble and lose your entrance eligibility all together.

What Is An I-140 petition?It is an open-ended Adjustment of Status application based on your employment status. Attorneys used to have to certify these applications, but as of September 2000, this is no longer required. For whatever reason, the form designation stuck. However, that doesn’t mean the services of an immigration attorney lack value when changing your status. You will eventually be required to choose a method and file for the change. The advice of an attorney can be invaluable, especially considering the backlog of applications currently on file with USCIS. Don’t make this decision arbitrarily. Consult an attorney and increase your approval possibilities.


23

Immigration cases require a high degree of prerequisite knowledge in order to have a good chance at a favorable ruling. Legally speaking, immigration law is the equivalent of standing on shifting sand because it is almost always under reform. Keeping up with these changes in addition to the realities of non-citizenry, detention and deportation makes effective self-representation a slim-to-none possibility.

If you choose to go down this road, the key thing to remember about self-representation is that you are held to the same standard as a practicing attorney. That means you have to:

• Present persuasive arguments.

• Answer any and all questions posed by the court.

• Keep track of deadlines and file the appropriate paperwork within those deadlines.

• Know the law, including the procedural rules of the presiding court, which vary by state.

That is a lot of bases to cover, especially if you don’t have any formal legal training. So why dopeople do it? That’s what we are going to find out.

What Are The Perceived Advantages Of Pro Se Litigation? Pro se litigation is the technical term for self-representation in any case, including immigration matters. It means “on one’s own behalf.” There are two main reasons why litigants choose to take this route:

1. They believe they will have more control over their own case.

2. It saves money on lawyers.

That is the general view of the reasoning behind pro se litigation, but it does not cover many areas of the law where special consideration is needed. Immigration is one of those specialized areas.

WHAT ARE THE PROS AND CONS OF SELF-REPRESENTATION?


In major cities like New York, Los Angeles and Phoenix, non-citizens have a better chanceof securing pro bono (no cost) immigration representation. In cases where access to these services, or the services of a private attorney are made available, 74% of cases resulted in a favorable outcome. This is compared to 13% favorability in cases with pro se litigants.

Moreover, non-citizens who are transferred to remote detention centers in Texas, Pennsylvania and Louisiana typically lose access to representation of any kind. As a result, at least 57% of non-citizens in the United States are underrepresented in immigration cases.

How Do I Choose An Immigration Lawyer?There is a best approach and a worst approach to this initial step. Like any other legal matter, the best way to find a lawyer is through a trusted referral. If you don’t know anyone who has recently completed the immigration process, we recommend visiting the immigration website for your home country. Other immigrants who have begun working in the U.S. or joined its citizenry frequently leave feedback, reviews and references for other immigrants in need.

This can also be a gold mine of valuable information about the different steps you have to go through. It is a good idea to familiarize yourself with what is expected of you before you begin meeting with attorneys. However, do not solely rely on information obtained in posted feedback, as these individuals are not themselves attorneys nor are they qualified to give legal advice, just recommendations on what to expect.

You may also consider state bar websites, the AILA (American Immigration Lawyers Association) website and referral list, and other sources when seeking a qualified attorney.

The last preparatory step you need to complete before scheduling consultations is to save up several thousand dollars. Visas and Green Cards cost anywhere from $8,000 to $20,000. That being said, there are attorneys who will work on pro bono immigration cases, but this is the exception rather than the rule. If you are not seeking asylum or at risk for deportation, your case may not qualify for pro bono representation.

5 Questions To Ask Before Hiring An Immigration LawyerAn attorney-client relationship is really a short-term partnership. It is vital that the information shared goes both ways. This means both of you get necessary questions answered fully and honestly.




Here are five questions any experienced immigration lawyer should be able to answer without hesitation:

1. Will I have direct access to you and your law firm through phone calls or appointments, rather than just an assistant if I have questions?

2. Can you provide proof you are a member of the American Immigration Lawyers Association?

3. What do you charge?4. Where did you go to law school?5. Have you faced disciplinary action as an attorney?

It is recommended you meet with at least three to four different attorneys before making a decision about who will represent you and guide you through this process.


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WHAT COULD DISQUALIFY MY RELATIVE FROM ADJUSTING STATUS?

Adjustment of Status hinges on the circumstances surrounding your immigration. It followsthe approval of an immigrant visa petition that is filed either by a relative with permanentresident status or citizenship or an employer. All of this can be verified by the I-130 sponsorshipapplication (or the employer sponsorship application) and supporting documents like an affidavit of support.

Adjustment of Status inside the United States is a limited process. It applies mostly toindividuals already residing lawfully in the U.S. under valid non-immigrant status who wishto change that status to permanent immigrant status. These individuals have usually notaccrued unlawful presence in the U.S. If your options suddenly seem more limited than you were expecting, that’s because they are. Only certain exceptions can be made for qualifying immigrants.

Are There Exceptions During The Adjustment Process?It depends on the type of visa you applied for. Here are the most common ones whereexceptions apply:

• Fiancé (specific timetable and requirements)

• Asylum or refugee (can be expedited if case proves it necessary)

• Resident before Jan. 1, 1972

• Visa lottery recipient

• Immigrants of Cuban citizenship or nationality admitted after Jan. 1, 1959

• Other nationality-based programs as applies

• Immigrants in the U.S. illegally for less than 180 days

• Immigrants eligible for adjustment under the LIFE Act

Immigrants who do not meet these exceptions must return to their home country after obtaining an I-601 waiver and go through Consular Processing.


If no exception can be made, what disqualifies someone from adjusting their status inside the United States? Any shortcuts and certain illegal activities that stand in the way of the proper immigration process may disqualify a relative from an adjustment of status.

This includes:

• You committed immigration fraud.

• You entered the U.S. without a visa.

• You entered the U.S. on a non-immigrant crewman status.

• Your admittance was not sanctioned by an immigration officer.

• You are employed without United States Citizenship and Immigration Services (USCIS) authorization or have overstayed your visa (some exceptions apply).

• You did not marry the person who filed your fiancé visa request.

• You did not complete the two-year foreign residence requirement for visitor status (waiver is available).

• False claims to citizenship (entry or I-9 employment).

• You were admitted to Guam as a visitor under their waiver program.

• You have been permanently barred from the U.S.

• You are a conditional permanent resident who did not remain married to the same individual (waivers apply).

It may not apply in every case where eligibility is called into question, but waivers are available that can help resolve some of these roadblocks.

ANY SHORTCUTS AND CERTAIN ILLEGAL ACTIVITIES that stand in the way of proper immigration process may disqualify a relative from an adjustment of status.

What Happens If My Relative Is Disqualified?Adjustment of Status is only available to immigrants who are already in the U.S. As such, they are given access to certain judicial protections under immigration law. One of those protections is the right to appeal the decision reached by USCIS.



An immigrant’s eligibility or the outcome of their removal proceedings can be reviewed by an objective judicial board. Depending on their findings, this board can overturn, support, re-open or pass along the case to a higher court.

About 500 immigration cases are heard in federal court each year (this does NOT include administrative cases heard by immigration judges). That said, this is the exception, not the rule. If the appeal does not resolve in your favor, you will be deported back to your home country.

It is important to note that immigrants have the option of either waiting to enter the U.S. and applying for an Adjustment of Status or applying for a visa and consular processing through their country’s embassy. Consular Processing is less stringent, but it lacks the safety net of an appeals process. The decision reached by the official is final.

You are not allowed to apply for an Adjustment of Status and Consular Processing at the same time. You have to choose one option or the other, but you can switch from an adjustment to consular processing. There is a specific process for completing the switch. It involves both USCIS and the National Visa Center (NVC). Your files have to be transferred to the NVC. This transfer can take up to a year to go through.

During the waiting period, you should be meeting with an immigration lawyer to make sure that you are fully prepared for what consular processing requires. This is crucial for eligibility.



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WHAT YOU NEED TO KNOW ABOUT WAIVERS

Exclusion is never an ideal outcome, especially during the immigration process. If a visaapplicant has done something to be barred from the visa process, all is not lost. You may be able to apply for a waiver to secure an immigrant’s visa, and with time, still acquire your Green Card. It all depends on what made you ineligible and how you decide to handle it.

When Is A Waiver Necessary?Your goal as a foreign national is to apply for entrance into the United States legally. Whenapplying for entrance through the proper channels, some immigrants need waivers to span thegaps created in their past or present situations. Waivers give United States Citizenship andImmigration Services (USCIS) evidence and details about specific instances that raise red flagswith immigration.

For example, an immigrant may need a waiver if:• They were deported or removed from the U.S. in the past.

• They overstayed their visa and left the U.S. or accrued other unlawful presence.

• They were charged with or convicted of certain criminal activities.

• Fraudulent documents have been used in the past.

Since waivers are fact-specific, immigrants usually know before they leave the states that theywill need one to return without incident. A good immigration lawyer can help get this processstarted so your loved one can return as soon as possible.

IF A VISA APPLICANT HAS DONE something to be barred from the visa process, all is not lost.


What Types Of Waivers Are Available?There are numerous waivers available. Each one applies to a specific circumstance andrequires a specific burden of proof. Here are some of the most common ones:

• Waiver for Prior Removal: When you are deported from the U.S., you are given an entrance penalty, which bars you from re-entry for three or 10 years. Some deportations actually have permanent bar associations (for example, deportation after conviction for an aggravated felony). If you wish to return before that waiting period is up, you must apply for this waiver. Eligibility is limited.

• Waiver of Unlawful Presence: This is usually filed by immigrants as soon as their visa is approved. This is especially important for immigrants going through Consular Processing. They have to return to their home country for seven to 10 days to complete the immigration process, but must first seek a waiver of any time they resided in the U.S. without lawful immigration status. Fail to file this waiver and you may not be allowed back on American soil.

There are several waiver categories related to criminal activity, including one for immigrantfamily members who may be complicit in fraud or other questionable actions.

• Waiver for Crime of Moral Turpitude: There are specific residency requirements and rehabilitation requirements for this waiver. You also have to show proof that you are related to a qualifying individual and, most importantly, that not allowing you to enter the country would put a significant hardship on your family that is in the U.S. legally.

The last point is hard to prove and often needs the insight of an experienced immigrationattorney to succeed. Hardship is reviewed on a case by case basis. The exact same rules apply if you want a waiver for possession of marijuana.

When it comes to ineligibility, there is a lot of information to sort through. For the best chance at meeting your immigration goals, get the advice of a well-versed immigration attorney right away.

WHAT YOU NEED TO KNOW ABOUT WAIVERS


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CAN I APPEAL IF MY RELATIVE HAS BEEN DENIED A VISA?

To appeal means to have a decision reviewed by a higher authority. If you petition for a familymember through United States Citizenship and Immigration Services (USCIS) and that petition is denied, you can have that decision reviewed by an administrative body and theBoard of Immigration Appeals (BIA). You can also request USCIS to reconsider the denial ofyour petition. Your request for reconsideration has to fit certain parameters in order to qualify.

A CLAIM TO REOPEN YOUR CASE must be based on factual grounds.

Are There Limits To Filing An Appeal?Yes, and those limits are applicable pretty quickly. The first limitation is your time frame for filing. You have 30 days from the date the decision is reached to file an appeal. Additionally, only the petitioner can file the appeal, not the beneficiary. The only exception is if the beneficiary self-petitions (based on spousal abuse or other limited circumstances) for a visa or adjustment of status.

Your appeal rights with USCIS will be explained in the denial letter you will receive. It doesn’t mean that every request passes muster for reconsideration or will be overturned on appeal. The original USCIS officer who came to the decision will be the first to review the case. Their job is to determine whether or not there are sufficient grounds to reconsider or reopen it. If they determine there isn’t, the case will be forwarded to a higher authority for review.

The Difference Between A Reconsideration And Claim To ReopenA claim to reopen your case must be based on factual grounds, such as new facts that have come to light or a change in circumstances that would affect the outcome of your case. For


instance, if the initial application was denied due to abandonment (failure to provide requested evidence or intent to deny), the case can be reopened if you can prove that:

• The requested evidence is immaterial

• The evidence has been submitted with the initial application or petition

• Additional evidence was gathered in the time allotted

• The request for evidence was sent to the wrong address

Reconsideration is not based on evidence. It takes a closer look at the legal argumentsused to prove the case. If these arguments are insufficient or there are new arguments topresent, reconsideration may be warranted. This appeal is particularly favorable in pro se (self-represented) immigration cases or cases involving poor legal counsel.

Include supporting evidence that shows a factual or circumstantial error. It does not have to be in brief form, but it must be supplied. Failure to do so will result in an automatic denial.

Does Filing An Appeal Put A Hold On The Original Judgment?No. The appeal process will not suspend the execution of the decision made in your case or change a pre-set departure date. You may be able to request a stay of deportation based on an appeal that has been filed. It can take the BIA up to six months to decide on an appeal and the case may need to go all the way to Circuit Court before a final decision is made.

If you plan to appeal your case, it is wise to meet with an immigration lawyer immediately upon denial so that you have a strategy in place during the entire process. The right to appeal is not available to all immigrants. Applicants who go through Consular Processing may have an easier time getting approved for visa eligibility, but they are not given the right to appeal the officer’s decision. These decisions are final.

It is very important that you lawfully immigrate to the states. Failure to do so may result in removal and penalties that bar you from re-entry. Make sure your visa number is available and active before you make travel plans.

For questions involving your or a relative’s immigration case, contact the law firm ofStockard, Johnston & Brown, P.C. in Amarillo, Texas. Cindy Goodman is a qualified immigration and criminal lawyer who worked for the Department of Homeland Security. In addition to her professional relationships with area judges and government attorneys, and experience in court, she has vast knowledge of U.S. immigration law. Contact Stockard, Johnston & Brown today for a free consultation to discuss your case at 806.372.2202.

If you have questions that require an explanation in Spanish, please contact CindyGoodman’s paralegal, Pam Cervantes, at 806.373.3000.

CAN I APPEAL IF MY RELATIVE HAS BEEN DENIED A VISA?

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