Category Archives: adjustment of status

Immigration Consequences of Criminal Offenses: Myths & Facts

Posted on September 28, 2015 | Comments Off on Immigration Consequences of Criminal Offenses: Myths & Facts

When a person is charged with a crime, he and his criminal defense attorney are often most concerned with minimizing the penalties. The defendant might give up his right to a trial and enter a guilty plea or no-contest plea to a less serious charge, in exchange for the dismissal of other charges or a reduced sentence. But the U.S. immigration consequences can be far more serious than the jail time, fine, probation or other more direct consequences of the conviction.

Criminal convictions can lead to a non-citizen being deported from the United States, denied entry (or re-entry) into the United States, and stripped of immigration benefits, including eligibility to become a permanent resident or a naturalized citizen. The immigration consequences continue long after the person has already served his sentence.

If you are a foreign national who wishes to visit, immigrate to, or stay in the United States, you need to know the myths surrounding criminal offenses and their immigration consequences. The most common include:

Myth #1:  The “dismissal” of my criminal case, after I have met certain conditions, means I have no “conviction” under U.S. immigration law. 

Fact:  A conviction could still exist under federal immigration law even when a dismissal of the case means there is no conviction under state law.

You may qualify for a pre-trial intervention, first offender, or diversion program, in which counseling rather than punishment is emphasized. Some states and programs do not require defendants to enter a guilty plea or no-contest plea to qualify for the program. Prior to entering a plea, the person agrees to complete probation, anger management, group therapy, substance abuse treatment or other type of program. If the person successfully completes the program, the charges are dropped or the case is dismissed.

But when you must admit guilt or you are found guilty before the pre-trial intervention, first offender, or diversion program is imposed, this amounts to a conviction under federal immigration law. In this situation, a dismissal of the case — after you complete the program — does not wipe the slate clean for immigration purposes.

Immigration law defines “conviction” as a formal judgment of guilt or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.

“Restraint on liberty” includes imprisonment, a fine or restitution, and probation. It also includes minimal community-based sanctions such as work-release programs, rehabilitation programs, house arrest, revocation or suspension of a driver’s license, and community service. Whether a jail sentence is actually served or suspended is irrelevant.

Unless a criminal case is outright dismissed, is stricken, or is not prosecuted — without any admission of guilt or penalty imposed — a criminal conviction exists under immigration law.

Myth #2:  An expungement (or sealing) of my criminal record means it is erased as if it never existed. 

Fact:  Generally, an expungement seals or deletes the criminal record in the local court and (perhaps) the state police’s databases.  Each state uses its own approach and procedures.  In most cases, a full expungement treats the offense as if it never occurred. For immigration purposes, however, an expungement does not erase the conviction.

Fingerprints taken when you were arrested remain in the FBI or federal databases. Immigration officials may still see or request expunged records for certain purposes.

When you file for a nonimmigrant visa, a visa waiver (under ESTA), permanent residence or U.S. citizenship, you are asked about arrests, charges and convictions. An expunged or sealed record does not make the arrest, charge or conviction go away for immigration purposes.

As part of a Form I-485 application for adjustment to permanent residence, Form I-90 application for replacement of green card, or Form N-400 application for naturalization, you must provide your fingerprints at a biometrics appointment.  A background check, including review of criminal records in the FBI database, will be conducted before you receive a decision on your application.

Your criminal record will normally turn up in the background check. If an immigration officer sees that you have a record, and you stated that you had no arrests, charges or convictions, he may deny your application based on fraud or willful misrepresentation of material fact to gain immigration benefits.

Immigration officials can sometimes obtain expunged records from the court. But you have the burden to produce court-certified records when you apply for certain immigration benefits, such as permanent residence, a new green card, or naturalization. Therefore, it’s best that you obtain the court-certified records before you seek an expungement. Otherwise, you might need to get the record unsealed to allow continued processing of your application.

Myth #3:  A relatively minor offense, such as a misdemeanor or a conviction resulting in a sentence under 1 year, will not cause any immigration problems.

Fact: A conviction does not necessarily disqualify a person from obtaining a visa, permanent residence, naturalization, or other immigration benefits. The  only situation in which a single conviction is an automatic and permanent bar to entering the U.S. is when the conviction is for an aggravated felony, and you have been previously removed due to the conviction.

In general, misdemeanor offenses carry less serious consequences than felony offenses. A sentence of less than one year can save the person from being deported without a viable defense. But the nature of the offense, type of conviction, and the maximum potential penalty are additional factors to consider.

Even non-violent, relatively minor misdemeanor offenses under state law can be classified as a felony or even an aggravated felony under federal immigration law. The Immigration and Nationality Act does not distinguish between felony and misdemeanor crimes. Rather, crimes are categorized by the type of conduct involved.

Aggravated Felony

A person convicted of an aggravated felony is ineligible for asylum, cancellation of removal, certain waivers of inadmissibility, and voluntary departure. Section 101(a)(43) of the Immigration and Nationality Act provides a list of offenses that are deemed aggravated felonies. They include:

  • murder
  • rape
  • sexual abuse of a minor (including statutory rape)
  • controlled substance trafficking
  • illicit trafficking in firearms or destructive devices
  • money laundering of more than $10,000
  • fraud or tax evasion involving a loss that exceeds $10,000
  • a crime of violence with a sentence of at least one year
  • a theft offense or burglary offense with a sentence of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year

While a reduced sentence under 1 year might help you avoid an aggravated felony charge, this only applies to a narrow group of convictions (e.g. theft and violent crimes).  There are various types of convictions that present immigration problems, no matter the sentence.

An aggravated felony is not the only crime that carries serious immigration consequences. Controlled substance violations, firearms offenses,  domestic violence, stalking, violation of protective orders, child endangerment, and child abuse are especially problematic.

Crime Involving Moral Turpitude

A Crime Involving Moral Turpitude (CIMT) often causes major immigration problems as well. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent.

Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

A noncitizen is inadmissible to the U.S. if he is convicted of – or admits to committing – one CIMT (other than a political offense), unless he qualifies for:

(1) the petty offense exception, where the person committed only one CIMT ever, the CIMT has a potential sentence of a year or less, and a sentence of six months or less was imposed ; OR

(2) the youthful offender exception, where the person committed a single CIMT while under age 18, and at least five years have passed since the conviction and release from jail.

A noncitizen is deportable if convicted of a CIMT (other than a political offense) committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed. The maximum sentence possible is the determining factor. For example, if the CIMT occurred within five years of the person becoming a lawful permanent resident, he is still removable from the U.S. if he could have been sentenced for 365 days or more. It doesn’t matter whether the actual sentence was less than 365 days or was suspended upon completion of probation.

A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. The only two exceptions are if the offenses are “purely political” or arose in a “single scheme of criminal misconduct” (i.e. the very same incident).

To be admitted to the U.S. as a permanent resident or to prevent removal from the U.S. as a result of a CIMT, the person must qualify for certain relief, such as a 212(h) waiver in conjunction with adjustment to lawful permanent resident status.

Controlled Substance Violations

Section 212(a)(2)(A) (i)(II) of the INA states a person is inadmissible if he violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21 (Controlled Substances Act). To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation. This includes simple possession or use of marijuana or any other drug listed in Title 21, section 802.

The 212(h) waiver is available only when the intended immigrant has one controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish).

Multiple Convictions

A noncitizen is inadmissible if convicted of two or more crimes (other than purely political offenses) – regardless of whether the conviction arose from a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the crimes involved moral turpitude –  for an aggregate confinement totaling five years or more.

Criminal Records in general

In addition, any criminal record can make it much harder for you receive certain immigration benefits. For example, a disorderly conduct conviction or multiple DUI offenses are not automatic or conditional bars to naturalization. But they can make it harder for you to establish good moral character and easier for USCIS to deny your naturalization application – especially if they occurred within the statutory period (generally 3 to 5 years before you file your Form N-400.)

Myth #4: My criminal record will not matter if I have been a permanent resident for many years. 

Unconditional permanent resident status does not expire even when your 10-year green card is no longer valid.  But it can be revoked due to certain criminal convictions. As a permanent resident, you may also be denied-re-entry to the U.S. or be placed in removal proceedings on criminal-related grounds.

Although lawful permanent residents have more rights and privileges than undocumented immigrants and foreign nationals in non-immigrant status, only U.S. citizens are fully protected from the immigration consequences of criminal convictions.

Myth #5: Foreign convictions do not count for U.S. immigration or travel purposes.

U.S. immigration authorities consider a foreign conviction to be a “conviction” in the immigration context if the conviction resulted from an offense deemed to be criminal by U.S. standards. Federal U.S. standards on sentencing are also used to determine whether the foreign conviction is a felony or a misdemeanor, regardless of the sentence imposed in the foreign jurisdiction.

The U.S. also does not recognize foreign pardons.  Only full and unconditional U.S. pardons for a U.S. conviction – granted by the highest executive authority – removes deportability and inadmissibility under INA 212(a)(2)(A)(i)(I) (crime involving moral turpitude).  Foreign pardons do not county for U.S. immigration or travel purposes.

The Form I-485 application specifically asks you to disclose whether you have been arrested, cited, charged, convicted or sentenced for crimes outside the U.S. In the naturalization context and in visa applications, you are also expected to list criminal offenses that occurred outside the U.S., regardless of whether they resulted in a conviction or guilty plea.

Learn about the immigration consequences of a criminal charge or conviction before you enter a plea, leave the U.S., or apply for immigration benefits

In 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that the 6th Amendment right to counsel requires criminal defense attorneys to provide advice about the immigration consequences of a conviction to their noncitizen clients.  This decision, however, does not apply retroactively to pre-Padilla cases.

The immigration consequences depend on the elements of the crime, the nature of the offense, the potential sentence, the actual sentence imposed, and whether the person has other convictions.

Deportation, denial of entry to the U.S., and separation from families often have far more lasting effects than the sentence imposed.  Certain criminal convictions lead you into removal proceedings after you complete your jail sentence, or when you apply for a green card or for U.S. citizenship. You can also be denied re-entry to the U.S. as a permanent resident or valid visa holder on crime-related grounds.

You need to know how a conviction or sentence affects your immigration status before you enter a guilty plea, leave the U.S., or apply for immigration benefits including naturalization. Make sure to seek advice from an attorney who is experienced in the intersection between the two complex areas of immigration law and criminal law.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Posted on August 29, 2015 | Comments Off on Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Your permanent residence is “conditional” if it is based on a marriage that was less than two years old on the date you were granted this status.  The conditional residence – which begins on the date you lawfully enter the U.S. on an immigrant visa or the date you adjust to permanent residence – is valid for two years.

Failing to file a timely joint Form I-751 petition to remove the conditions results in the automatic termination of your status and subjects you to removal from the U.S.

In the best-case scenario, you and your U.S. citizen or lawful permanent resident (LPR) spouse would file a joint Form I-751 petition to remove the conditions during the 90 days before your two-year green card expires.

Then USCIS would approve the petition, remove the conditions, and issue the 10-year green card, based on documentary evidence showing the marriage is bona fide (i.e. entered into with the purpose of establishing a married life, and not for the purpose of obtaining immigration benefits). USCIS may approve the petition without interviewing you, if the documentary evidence is very strong.

But when the marriage is on the rocks, it becomes much harder to file a timely joint I-751 petition and to get the conditions on your residence removed.

Joint Filing When Parties are Separated or Initiated Divorce or Annulment

If the parties are separated but are on relatively good terms, they may submit a joint I-751 petition to the USCIS Service Center. The joint petition must be filed during the 90 days preceding the expiration of the two-year conditional residence. Otherwise, the conditional resident must establish “good cause and extenuating circumstances” for the late filing. Examples of good cause include hospitalization, long term illness, death of a family member, legal or financial problems, having to care for someone, bereavement, serious family emergency, and work commitment, or a family member on active duty with the U.S. military.

The couple must also appear for an in-person interview at a USCIS Field Office, if one is scheduled. In addition, they must meet a four-part test as follows: 1) the marriage was legal where it took place; 2) the marriage has not been terminated; 3) the marriage was not entered into for the purpose of procuring permanent resident status; and 4) no fee (other than to an attorney for filing assistance) was paid for the filing of the Form I-130 or Form I-129F petition.

If USCIS finds that the joint petitioners are legally separated and/or have initiated divorce or annulment proceedings, it will issue a Request for Evidence. The RFE will instruct the conditional resident to submit a copy of the divorce decree or annulment within 87 days, along with a written request to treat the joint petition as a waiver request petition.

If the conditional resident submits the divorce decree or annulment, USCIS will amend the joint petition to indicate it is a waiver request petition based on termination of marriage. USCIS will determine whether there is sufficient evidence to approve the petition on the merits or whether to transfer the case to a Field Office for an in-person interview.

If the conditional resident does not respond to the RFE, or the response does not sufficiently show the marriage has been terminated, USCIS will assess evidence of the bona fides of the marriage. USCIS will decide whether to approve the petition, deny it, or transfer it to a Field Office for an in-person interview.

USCIS may not deny a  joint petition solely because the parties are separated and/or have initiated divorce or annulment proceedings. But legal separation or initiation of divorce or annulment proceedings could suggest that the conditional resident entered into marriage solely for immigration benefits.

As long as the parties prove they married in good faith and the marriage has not been terminated or annulled, USCIS will approve the joint petition (even when the marriage is no longer viable).

Waiver of the Joint Filing Requirement

Conditional residence was introduced in 1986, when Congress passed the Immigration Marriage Fraud Amendment to discourage individuals from entering into sham marriages to circumvent U.S. immigration law. In the 1990’s, Congress passed laws that allow conditional residents, in certain situations, to individually file the I-751 petition so they do not have to stay in  bad or abusive marriages to keep immigrant status.

If the parties file for a divorce or annulment, or the U.S. citizen or LPR spouse is not willing to sign a joint I-751 petition, the conditional resident must then qualify for a waiver of the joint filing requirement.

To receive a waiver of joint filing,  conditional residents must show at least one of the following:

1. The U.S. citizen spouse subsequently died.

2. They entered the qualifying marriage in good faith, but the marriage was terminated (other than by death), and they are not at fault in failing to file a joint petition.

3. They entered the qualifying marriage in good faith, but during the marriage, they or their conditional resident child was battered or subjected to extreme cruelty committed by the U.S. citizen or permanent resident spouse or parent, and they are not at fault in failing to file a joint petition.

4. Extreme hardship would result if they were removed from the U.S.

Waiver petitions can be filed at any time prior to a final removal order, and do not require proof of “good cause and extenuating circumstances” for a late filing.

Waiver Based on Divorce (Good Faith/Divorce Waiver)

You may file your I-751 by yourself and request a waiver of the joint filing requirement if you are divorced from your U.S. citizen or LPR spouse. When there’s a divorce, an in-person interview at the USCIS Field Office is likely.

Current USCIS policy states that if you file a waiver request petition because you are separated from your spouse or because you are in divorce or annulment proceedings, USCIS will issue a Request for Evidence, giving you 87 days to submit a copy of the divorce decree or annulment.

If you submit the divorce decree or annulment, with a request for a waiver of the joint filing requirement based on termination of marriage, USCIS will continue processing your petition and adjudicate it on the merits.  If you do not submit the divorce decree or annulment, USCIS will deny the waiver request petition and issue a Notice of Termination of Conditional Residence.  USCIS may also serve you with a Notice to Appear (NTA) in removal proceedings before the Immigration Court.

After your divorce becomes final, you may refile your waiver request petition with USCIS if you are not in removal proceedings. Or you may apply for the waiver before the Immigration Court if you are placed in removal proceedings.

A divorce raises suspicion that the marriage was not entered in good faith. To get the waiver request petition approved, you must submit bona fide marriage documents such as birth certificates of your children;  joint mortgages or leases; records of shared bank accounts and credit cards; joint tax returns; photographs of the two of you together and with friends and relatives; correspondences you shared; and affidavits from marriage counselors, therapists, relatives and friends who know about your relationship.

Waiver Based on Battery or Extreme Cruelty by Spouse (Battered Spouse Waiver)

You may individually file the I-751 petition when you are in an abusive marriage that subjects you or your conditional resident child to battery or extreme cruelty perpetuated by the U.S. citizen or LPR spouse. This waiver is available regardless of whether you are still married to or still living with the spouse.

Battery or extreme cruelty is defined as “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” Acts of violence include “psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution.”

Battery involves physical violence committed against you by your spouse. This can include slapping, shoving, punching or any other infliction of bodily injury.

Extreme cruelty includes nonviolent abuse inflicted on you by your spouse to control or punish you. This includes refusing to jointly file the I-751 unless you give in to unreasonable demands; threatening to report you to authorities and have you deported from the U.S.; threatening to physically harm you;  forbidding you from contacting friends and family; withholding food, transportation and other basic necessities; and searching through or destroying your personal property, including important documents.

To establish battery, you should present “expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel.” You may also submit evidence that you sought an order of protection against the abuser or present photographs of injuries you suffered.

To support claims of extreme cruelty, you should provide objective evidence from professionals recognized as experts in the field; namely, licensed clinical social workers, psychologists, and psychiatrists.

A detailed affidavit describing the abuse you suffered is also helpful.

Waiver Based on Extreme Hardship (Extreme Hardship Waiver)

You may self-petition to remove the conditions on your residence if termination of your permanent residency and removal from the United States would result in extreme hardship. The immigration statute is silent about who must suffer the extreme  hardship, but USCIS normally considers the hardships to the conditional resident and to the children of the marriage.

USCIS considers only factors that arose after you became a conditional permanent resident.  One example is when the political or economic conditions in your home country have deteriorated, and you have publicly criticized its government, since you became a conditional resident.

The term “extreme hardship” is not defined by immigration law. Rather, USCIS generally applies case law regarding applications for suspension of deportation or waivers of inadmissibility. USCIS will consider factors such as your age,  health condition, ability to obtain employment in the home country, length of residence in the U.S. and family ties in the U.S. Other factors include the financial difficulties and emotional hardships you would suffer if you were removed from the U.S., as well as the current political and economic conditions in your home country.

Although the statute itself does not require you to prove a good faith marriage, you must prove extreme hardship if you are removed from the U.S. Such hardship is significantly greater than the hardship that one would ordinarily experience upon being removed from the U.S.

Choosing the Appropriate Form I-751 Waiver

The most recent version of the Form I-751, dated 04/11/13, does not indicate that the waivers are mutually exclusive or that the conditional resident must select only one of the possible grounds for a waiver. Some USCIS officers or immigration judges, however, might instruct you to choose one waiver.

If the U.S. citizen or LPR spouse dies during the two-year conditional period, a separate waiver is available on that basis.  A copy of the death certificate and proof of the bona fide nature of the marriage must be submitted.

Consult an Immigration Attorney

An experienced immigration attorney can help you file a well-documented Form I-751 petition, as well as choose an appropriate waiver, if necessary. The attorney can also prepare you for the interview and attend it with you, if USCIS schedules one.  A denial of petition to remove conditions or a termination of conditional residence subjects you to removal from the U.S., so seeking accurate legal advice is crucial.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Applying for a Green Card Following Entry Into the U.S. as a Visitor

Posted on July 31, 2015 | Comments Off on Applying for a Green Card Following Entry Into the U.S. as a Visitor

Foreign nationals who enter the U.S. on a B-1/B-2 visitor visa or on the Visa Waiver Program (VWP) may file for their green card within the U.S. – instead of apply for their immigrant visa aboard – if they fit in the Immediate Relatives category. A common example is when the person enters into a bona fide marriage to a U.S. citizen following entry to the U.S. as a visitor. But the green card applicant’s true intentions when he applied for the visitor visa (or ESTA) or requested entry in visitor status may be called into question.

The visitor visa and VWP program allow foreign nationals to enter the U.S. for tourism or business for a temporary period. Using the visitor visa or VWP to enter the U.S. with the specific intent of immigrating to the U.S. carries risks and consequences.

Overstaying their non-immigrant status in the U.S., in and of itself, does not prevent immediate relatives from adjusting to permanent resident status. Immediate relatives include the U.S. citizen’s spouse, children under age 21, and parents (if the U.S. citizen is 21 or older). In addition, a general desire to immigrate is generally fine. Problems, however, arise when there is willful misrepresentation about the purpose of the trip.

What are the risks and consequences of the visitor-to-green card holder option? 

1. Foreign national may be charged with fraud or willful misrepresentation to obtain immigration benefits

Immigration authorities expect fiancé(e)s of U.S. citizens to apply for a K-1 visa and spouses, parents and minor children of U.S. citizens to apply for an immigrant visa at the U.S. Consulate abroad, rather than enter the U.S. as a visitor and then apply for a marriage-based green card.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status.  When a foreign national marries a U.S. citizen and takes up residency in the United States within 30 days of entry, the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. But if the facts provide a reasonable basis to believe the foreign national misrepresented his intent, the DOS allows him to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. In other words, immediate relatives of U.S. citizens who wish to apply for adjustment of status may do so at any time, even within 30 days of entry into the U.S.

[See updates below regarding the switch from 30/60 day rule to 90 day rule.]

Nevertheless, USCIS is often persuaded by and frequently follows the DOS policy. During the adjustment of status process, USCIS may find that the applicant misused the visitor visa or VWP by claiming to be a mere visitor at the U.S. port of entry, when in fact he intended to remain in the U.S. and file for a marriage-based green card.

USCIS might be especially suspicious if you get married or apply for a green card within 30 to 60 days of entering the U.S. They might overlook this conduct or you might be able to convince the USCIS officer that you decided to marry or apply for a green card only after you arrived in the U.S.

If USCIS is not convinced by  your explanation, it will deny your marriage-based green card application on the basis of immigration fraud or misrepresentation, unless you qualify for and receive an I-601 waiver of inadmissibility.  (To obtain an I-601 waiver, applicants must show a qualifying relative  – i.e. U.S. citizen or permanent resident spouse or parent – would suffer extreme hardships if  they are not granted the green card and allowed to stay in the U.S.)

At the U.S. port of entry, the U.S. Customs and Border Protection (CBP) officer may also question the visitor visa holder or VWP entrant about the purpose of his visit.  If you truthfully inform the customs officer that you are coming to the U.S. to get married or visit your U.S. citizen fiancé(e), he could find that you have no intent to leave the U.S. before your authorized stay expires.  The officer may then issue an expedited removal order or request that you withdraw your application for admission into the U.S. In some cases, your visitor visa may be cancelled or revoked and you may be barred from using the VWP.

It can be tempting to just tell the U.S. Consulate or customs officer that you are only coming to the U.S. for a temporary visit, when in fact you intend to engage in other conduct that reflects immigrant intent. While preconceived intent to immigrate to the U.S. does not bar immediate relatives from adjusting to permanent resident status, fraud or willful misrepresentation to obtain immigration benefits does.

2. Foreign national is subject to removal from the U.S.

Although overstaying the B-1/B-2 or VWP authorized period does not bar adjustment of status, it does make the foreign national removable from the U.S. The maximum period of stay in B-1/B-2 status is typically 6 months.  The maximum period of stay on the VWP is 90 days.

When the foreign national remains in the U.S. following expiration of the B-1/B-2 authorized period, he is subject to being placed in removal proceedings due to the overstay. Because VWP entrants waive their right to contest any action for removal, except when applying for asylum, they may be ordered removed without being referred to an Immigration Judge.

The filing of an I-485 application tolls unlawful presence, but does not provide any lawful status. If the adjustment application is denied and the person is not maintaining any nonimmigrant status, he is not only subject to removal, but also begins to accrue unlawful presence.

Departure from the U.S. after accruing more than 180 days to less than 1 year of unlawful presence in the U.S. triggers a 3-year bar from the U.S. The bar is 10 years if the unlawful presence lasted for 1 year or more. To obtain an immigrant visa prior to when the  3/10 year bar expires, the foreign national must first receive an I-601 waiver of inadmissibility. A foreign national who was ordered removed from the U.S. would also need to obtain advance permission to re-enter the U.S. by filing a Form I-212 application (unless the 5, 10 or 20-year bar, resulting from the removal order, has passed).

Visa fraud (misusing the visitor visa or VWP to gain entry into the U.S.) is also grounds for removal from the U.S. Instead of being granted a green card, the foreign national who entered on a visitor visa may end up in removal proceedings, and the VWP entrant may be issued an expedited removal order, if they are found to have committed visa fraud.

When does the visitor-to-green card holder option work best?

1. Foreign national met the U.S. citizen spouse or began committed relationship after he entered the U.S.

In many cases, foreign nationals meet their U.S. citizen spouses-to-be or enter into a committed relationship or get engaged only after they arrive in the U.S. on a visitor’s visa or on the VWP, either during the authorized stay or after the authorized stay expired.

A bona fide marriage between the U.S. citizen and foreign national allows the couple to file a one-step application with USCIS (i.e. US citizen files I-130 immigrant petition and foreign national files I-485 application for adjustment of status, concurrently.)  Upon entry, the foreign national might have a general desire to remain in the U.S., but no specific plans to immigrate because he had yet to meet or become engaged to the U.S. citizen spouse.

The longer the time period between the visitor visa or VWP entry and the filing of the green card application, the easier it is for the foreign national to prove he did not commit fraud or willful misrepresentation to gain entry into the U.S.

2. Foreign national is undecided about immigrating to the U.S. at the time of entry to the U.S.

Entering the U.S. on a visitor visa or on the VWP to spend time with a U.S. citizen petitioner is a permissible activity. It is possible for a person to enter the U.S. in visitor status to maintain a long-distance relationship with a U.S. citizen fiancé(e), or to get married to the U.S. citizen – as long as the intent is to timely depart the U.S. before the authorized stay ends.

Not all foreign nationals want to immigrate to the United States. Some are from developed countries or run successful businesses or hold lucrative professions in their home countries that they do not want to relinquish.

Fraud or willful misrepresentation occurs when you intend to remain in the U.S. permanently, but you tell the consular officer or customs officer that you are coming to the U.S. for a temporary visit. In general, silence or failure to volunteer negative information that is not specifically requested does not amount to fraud or willful misrepresentation.

Due to the 30/60 day rule, it is best to wait to file the marriage-based green card application at least 91 days after entry on a visitor visa or on the VWP.  If the application is made after 90 days, USCIS normally assumes the foreign national acted in good faith and was undecided about immigrating to the U.S.

[UPDATE, August 1, 2017: The DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.]

[UPDATE, September 10, 2021: The DOS updated its policy on the 90-day rule: If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, the officer may presume the applicant made a willful misrepresentation. The officer must provide the applicant with the opportunity to rebut the presumption of misrepresentation. Inconsistent conduct includes the visitor marrying a United States citizen or LPR and taking up residence in the United States.  Examples of taking up residence are applicant signing a long-term lease or mortgage, having utility bills, and obtaining a local driver’s license.]”

Keep in mind that USCIS considers other evidence when determining your true intentions upon entry into the U.S. For example, to prove the bona fide nature of your marriage, you may submit letters, emails and other correspondences proving your premarital courtship. If any of these correspondences show you planned to marry and remain permanently in the U.S. following entry as a visitor, USCIS could find that you misused the visitor visa or VWP and thus deny your green card application.

Consult an Immigration Attorney to Help You Determine Your Best Immigration Option

Although filing for a marriage-based green card following entry to the U.S. as a visitor is quite common, there are risks and consequences involved in this process.

Applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate abroad  instead of entering the U.S. on a visitor visa – when the intent is to immigrate to the U.S. – is normally more appropriate.

If you are already in the U.S. and have concerns about proving your good faith non-immigrant intent upon entry into the U.S., you could leave the U.S. before your authorized stay expires and apply for the appropriate visa abroad. And if you leave the U.S. after your authorized stay expires, and you accumulated at least 180 days of unlawful presence prior to your departure, you will trigger the 3/10-year bar. In that event, you will need to obtain an I-601 waiver of inadmissibility to obtain the immigrant visa before the 3/10-year bar expires.

Consult an experienced immigration attorney to help you determine your best visa option and immigration route based on marriage to a U.S. citizen.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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K-3 Nonimmigrant Visa for Spouse: Pros and Cons

Posted on July 11, 2015 | Comments Off on K-3 Nonimmigrant Visa for Spouse: Pros and Cons

miss youUpon marrying a U.S. citizen, a foreign national living overseas has two visa options to enter the U.S. and become a permanent resident.

The CR-1/IR-1 immigrant visa is the primary choice for all couples. Some couples also seek the K-3 nonimmigrant visa, which has advantages and drawbacks.

The spouse may use the K-3 nonimmigrant visa to enter the U.S. while waiting for approval of the immigrant petition. After arriving in the U.S., the K-3 visa holder may file a Form I-485, application to adjust to permanent resident (green card) status. The other option is to depart the U.S. and apply for an immigrant visa at the U.S. Consulate abroad, following approval of the immigrant petition.

The K-3 visa to green card process involves pros and cons. The main ones are as follows:

PROS

1. Can help reduce the time the U.S. citizen and foreign national spouse are separated from each other (mostly in theory)

If USCIS approves the Form I-129F (K-3 visa) petition before it approves the Form I-130 immigrant petition, the foreign national spouse does not have to wait for the immigrant visa process to be completed. USCIS will forward the approved I-129F to the U. S. Consulate for processing of the K-3 visa. After arriving in the U.S. on a K-3, the foreign national may apply for a green card.

The K-3 visa allows the foreign national to enter the U.S. and live with the U.S. citizen spouse even before USCIS approves the Form I-130 immigrant petition. But whether U.S. Consulates process K-3 visas faster than immigrant visas is uncertain and varies across Consulates.

2. Provides immigration benefits to foreign national spouse’s children in many cases

Unmarried children of the foreign national spouse who are under age 21 can be listed in the Form I-129F (K-3 visa) petition.  No separate I-129F petition is required. Upon approval of the petition, eligible children may receive a K-4 visa that allows them to travel to the U.S. with their parent (K-3 visa holder).

The child is not eligible for an immigrant visa if he was over age 18 on the date his foreign national parent married the U.S. citizen stepparent. The U.S. citizen may file an I-130 immigrant petition for a stepchild only if the marriage occurred before the child’s 18th birthday. But the child is still eligible for a K-4 visa as long as he is not yet 21 at the time of the marriage and visa issuance.

3.  Requires lower filing fees

K-3 and K-4 visa applicants must file the Form DS-160, Online Nonimmigrant Visa Application, and pay a single processing fee (currently $265). Meanwhile, immigrant visa applications based on an approved immigrant petition require a higher processing fee (currently $325), plus a fee for domestic reviews of the Form I-864, Affidavit of Support (currently $120).

There is also no filing fee for the Form I-129F petition for K-3 status based on an immigrant petition filed by the same U.S. citizen.

4. Sets a lower financial threshold

K-3 and K-4 visa applicants must provide evidence showing they will not become a public charge in the United States. This includes financial documents showing they can support themselves or the U.S. citizen can provide support.  They may opt to submit the U.S. citizen spouse’s Form I-134, Affidavit of Support, or the U.S. Consulate may instruct them to do so.

The financial threshold is lower for K-3 and K-4 visa applicants, compared to immigrant visa applicants, who must present a Form I-864, Affidavit of Support, from the U.S. citizen petitioner.

In general, minimum income requirements are set at 100% of the federal poverty guidelines in the Form I-134 for K-visa applicants, but increase to 125% of the federal poverty guidelines in the Form I-864 for immigrant visa applicants. K-3 and K-4 visa holders may live in the U.S. with the U.S. citizen petitioner  while working toward meeting the income income requirement for adjustment of status.

5.  Allows travel overseas

The K-3/K-4 visa is a multiple entry visa that is valid for two years. Unlike the K-1 fiance visa, it may be used to travel overseas and re-enter the U.S.

Foreign nationals with a valid K-3/K-4 visa do not need to travel with Advance Parole even after they file for adjustment of status.

6. Leads to employment authorization

After arriving in the U.S., K-3 and K-4 visa holders may  file a Form I-765, Application for Employment Authorization, with USCIS, and apply for a Social Security Number. The foreign national is authorized to work with a valid work card and unexpired K-3/K-4 status.

The K-3/K-4 visa holder may also apply for a work card based on a pending Form I-485, application to adjust to permanent resident status, even if their non-immigrant status expires.

CONS

1. K-3 visa petition is administratively closed if USCIS approves Form I-130 immigrant petition first (or around the same time)

The K-3 visa is a backup option in the event of long delays in the Form I-130 immigrant visa process.

If USCIS approves the I-130 before the I-129F, it will transfer that approved petition to the U.S. Consulate through the National Visa Center (NVC). In that event, it will ignore the I-129F.

If USCIS approves both the I-130 and I-129F and sends both approved petitions to the U.S. Consulate through the NVC, the I-129F will be administratively closed. In that event, the K-3 visa is no longer an option.  The foreign national spouse and eligible children must then complete the entire immigrant visa application process overseas.

USCIS does not refund the I-129F processing fee in either event.

2.  Provides immigration benefits to foreign national spouse’s children only if certain strict requirements are met

After arriving in the U.S., K-4 visa holders may apply for adjustment of status as long as they are under 21 and  the U.S. citizen petitioner filed a separate Form I-130 immigrant petition for them.

When USCIS approves the I-130 petition for the spouse and forwards it to the NVC, an immigrant visa is immediately available and the K-3/K-4 visa is no longer an option.  If there is no approved I-130 petition for the children, they cannot obtain immigrant visas to accompany the  parent. So even though I-130 petitions for the children are not required to obtain K-4 visas, the U.S. citizen petitioner still needs to file the I-130 petitions so the children can become permanent residents.

K-4 visa holders will be admitted to the U.S. for 2 years or until the day before they turn 21, whichever is earlier. The K-4 status expires when the child turns 21. Unless the I-130 was filed before the child turned 21 and the Child Status Protection Act (CSPA) applies, the K-4 visa holder may not adjust to permanent resident status upon turning 21.

Bringing children to the U.S. on a K-4 visa who were already age 18 at the time of the marriage is also very risky.  To date, only the U.S. Court of Appeals for the Seventh Circuit has ruled, in Akram v. Holder, that a K-4 visa holder might still obtain permanent residence if he was already 18 when his foreign national parent and U.S. citizen stepparent married. The court ruled that immigration laws and regulations do not require K-4s to adjust status only by way of a relationship to the U.S. citizen petitioner, but also “as a result of the marriage” of the parents.

Currently, the USCIS website states that in order for a K-4 to become a permanent resident, the marriage between the U.S. citizen stepparent and the K-3 parent must have occurred before he turned 18.  Based on this policy, USCIS could deny adjustment of status to the K-4 if the stepchild relationship to the U.S. citizen petitioner did not occur before his 18th birthday.  The Seventh Circuit’s decision is binding only in that district, which includes Illinois, Indiana and Wisconsin, and might not be persuasive in other districts.

3. Involves extra steps and additional fees

The U.S. citizen petitioner must first file a Form I-130 immigrant petition for the foreign national spouse before filing the Form I-129F (K-3 visa) petition. Although the petitioner may include his unmarried stepchildren under 21 in the I-129F petition, he must file a separate I-130 petition for the children in order for them to apply for permanent residence. The I-130 and I-129F petitions require separate filing fees (now $420 and $340, respectively).

Upon approval of the Form I-129F petition, the K-3/K-4 visa applicant then has to file a Form DS-160, Online Nonimmigrant Visa Application, which requires another processing fee (currently $265).

After arriving in the U.S., the K-3/K-4 visa holder must then file a Form I-485, application for permanent residence and pay the processing fee (currently $1,070 for applicants age 14 to 78).

Unlike immigrant visa holders who become permanent residents once they enter the U.S., K-3 and K-4 visa holders must submit a whole separate application to adjust status after they arrive in the U.S. They also need to complete an interview with USCIS before they are granted the green cards. Normally, the adjustment of status process takes at least 6 months to be completed.

K-3 and K-4 visa holders can only adjust status based on marriage to the original U.S. citizen petitioner. If the marriage fails before they become permanent residents, they will have to leave the U.S. or  overstay their authorized period, which makes them removable from the U.S. They cannot change to another nonimmigrant status and stay in the U.S.

4. Heightened financial threshold must ultimately be met 

When they apply for permanent residence, K-3 and K-4 visa holders must submit a Form I-864, Affidavit of Support, from the U.S. citizen petitioner.  If the 125% of the federal poverty guideline minimum income requirement is not met, the petitioner must normally get a joint sponsor and/or show evidence of assets that can be converted into cash in one year.

In addition, some U.S. Consulates require K-3/K-4 visa applicants to show they meet this heightened financial threshold because it must ultimately be met when they apply for their green card.

5. Visa must be valid for travel overseas

The K-3/ K-4 visa expires after two years. The visas must be valid to gain re-entry into the U.S. following travel overseas.

The K-3/K-4 nonimmigrant status may be extended by showing strong intent to eventually adjust to permanent residence. The Form I-539, application for an extension should be submitted to USCIS at least 120 days prior to the expiration of the authorized stay.

K-3/K-4 visa holders must maintain their nonimmigrant status in the U.S. to avoid accumulating unlawful presence that could bar them from re-entering the U.S. following a trip overseas. An overstay of 180 days to less than 1 year triggers a 3-year bar upon departure from the U.S. The bar is 10 years if the overstay is 1 year or more. A waiver for the unlawful presence bar is generally available, but is difficult to get.

K-3/K-4 extensions are granted in two-year intervals. If the initial visa has expired, the foreign national must obtain a new visa based on the extension to be re-admitted to the U.S., after traveling abroad.

Otherwise, the K-3/K-4 visa holder must file for adjustment of status and obtain Advance Parole to re-enter the U.S. if they depart the country. Another option is to wait abroad for the I-130 approval and then apply for an immigrant visa to re-enter the U.S.

6. Does not automatically provide employment authorization

K-3/K-4 visa holders need to file their Form I-765 and receive their Employment Authorization Document (EAD)/work card to obtain employment in the U.S. They might also need to present the EAD to obtain a Social Security Number. The Social Security Administration might not accept the K-3 or K-4 visa as proof of authorization to work.

K-3 and K-4 visa holders are not authorized to work until USCIS approves the Form I-765. Most employers will not hire them until they have the EAD as proof of authorization to work. USCIS takes approximately 90 days to process the EAD.

Furthermore, the EAD expires when the K-3/K-4 status expires. The adjustment of status applications must be pending for the foreign national spouse and child to qualify for a new EAD.

Conclusion

The K-3 to green card process has pros and cons. Although it provides many benefits — such as allowing the foreign national to enter the U.S. and live with the U.S. citizen spouse before the immigrant visa process is completed — it carries risks.

Consult  an experienced immigration attorney to help you determine whether the advantages outweigh the drawbacks in your specific case.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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I-601A, Provisional Unlawful Presence Waiver: Expansion Possible

Posted on May 30, 2015 | Comments Off on I-601A, Provisional Unlawful Presence Waiver: Expansion Possible

luggage 5-31-15Back in November 2014, the Obama Administration proposed an expansion of the Form I-601A, Provisional Unlawful Presence Waiver, to a larger pool of immigrant visa applicants.

If USCIS issues new regulations for this proposed change to take effect, the sons and daughters of U.S. citizens (regardless of their age) and spouses and children of lawful permanent residents will be able to apply for the Provisional Unlawful Presence Waiver (assuming they meet the other requirements).

What is the Provisional Unlawful Presence Waiver?

Unless they qualify for 245(i) benefits, persons who entered the U.S. illegally may not apply for adjustment to lawful permanent resident status, but must travel abroad to a U.S. Consulate to apply for an immigrant visa.

Persons who accumulate more than 180 days to less than one year of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 3 years. Persons who accumulate one year or more of unlawful presence after age 18 and after April 1, 1997, and then leave the U.S., are barred from re-entering the U.S. for 10 years. This is commonly known as the 3/10 year bar.

To re-enter the U.S. on an immigrant visa before the 3/10 year bar expires, applicants must receive a waiver of inadmissibility for their unlawful presence.

On March 4, 2013, USCIS introduced the  Form I-601A, Application for Provisional Unlawful Presence Waiver to allow certain immigrant visa applicants to obtain a waiver of inadmissibility for their unlawful presence before they depart the United States. The provisional waiver provides several advantages, but has many limitations.

Previously, such applicants could only file the Form I-601, Application for Waiver of Grounds of Inadmissibility, after they departed the U.S. and attended their visa interview at the U.S. Consulate abroad.

Like I-601 applicants, I-601A applicants must show their absence from the U.S. will cause extreme hardship to their qualifying relative, i.e. a U.S. citizen or permanent resident spouse or parent. (NOTE: U.S. citizen or permanent resident children are not qualifying relatives.)

What Does the Proposed Expansion Include? 

The 2013 regulations extended the Provisional Unlawful Presence Waiver only to the spouses, minor children (under age 21), and parents of U.S. citizens.

On November 20, 2014, the Secretary of Homeland Security directed USCIS to issue new regulations expanding the waiver to all statutorily eligible applicants, i.e. the spouses and children of lawful permanent residents and the adult children of U.S. citizens (assuming they meet the other criteria to obtain the waiver).

USCIS was also directed to clarify the meaning of “extreme hardship,” which is hardship that is unusual or beyond what would normally be expected. The term is not specifically defined by statute or by case law. Additional guidance on the definition could make it easier to determine what documents and information to present with the waiver application.

What Process Will USCIS Use to Expand the Provisional Unlawful Presence Waiver Program? 

Expanding the Provisional Unlawful Presence Waiver Program requires new or amended regulations. This means the agency must follow the notice-and-comment rulemaking process under the Administrative Procedures Act (APA).

Public notice is issued when a US government agency wishes to add, remove or change a rule or regulation.

On April 2, 2012 — before introducing the Form I-601A in March 2013 –  USCIS published a Notice of Proposed Rule that described the provisional unlawful presence waiver process. After gathering and reviewing public comments, the Homeland Security Department published the final rule on January 3, 2013.

The agency’s discretionary authority to waive the ground of inadmissibility for unlawful presence is based on an immigration statute passed by Congress in 1996. The new regulations did not change the law or the substance of the legal standards. Rather, they changed the process for seeking the unlawful presence waiver when the applicant is in the U.S. and is the spouse, minor child, or parent of a U.S. citizen petitioner.

USCIS Expected to Take Steps to Expand Program 

Compared to the expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the expansion of the waiver program stands a better chance of being implemented because it will arise from changes in regulation, not by changes in policy.

The Obama Administration came under fire when it attempted to roll out the expanded DACA and new DAPA by new policies related to the use of deferred action. A Texas-led coalition of 26 states filed a lawsuit challenging the implementation of these programs.  In response, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction stopping the expanded DACA and new DAPA from going into effect. The judge found that the agency should have used the notice-and-comment rulemaking process of the APA, but did not.

In contrast, USCIS was directed to issue new regulations that would expand the waiver program and clarify the factors it considers when determining whether the “extreme hardship” is met.  This means the agency must complete the rulemaking process before it can expand the program.

Although no timeline or deadline has been set, USCIS is expected to issue public notice on the proposed changes. The agency also stated that applications under the expanded program may be filed after it completes the rulemaking process and issues new regulations and guidelines.

If USCIS adopts the proposed changes, a larger pool of immigrant visa applicants will be able to apply for the Provisional Unlawful Presence Waiver before they depart the U.S. for consular processing.  Applicants will also have a better understanding of the factors USCIS considers in deciding whether they meet the extreme hardship standard.

[UPDATE: On July 29, 2016, DHS published a final rule expanding the I-601A waiver. As of August 29, 2016, the provisional waiver is available to all eligible applicants.]

The grant of a provisional waiver gives applicants some assurance they will be able to return to the United States on immigrant visas, despite being subject to the 3/10 year bar for unlawful presence.

While pre-approval of the “extreme hardship” waiver before departing the U.S. does not guarantee the applicant will receive the visa, it increases the likelihood that they will. It further reduces the uncertainty that comes with consular processing, as well as shorten the time applicants will be separated from family members living in the U.S.

* * *

If you do not qualify for the Form I-601A waiver under the existing regulations, watch out for new regulations expanding the program. Otherwise, you might qualify for the regular Form I-601 waiver, which you can request after you depart the United States and attend your immigrant visa interview at the U.S. Consulate.

Consult an experienced immigration attorney to help you determine whether you are eligible for the Provisional Unlawful Presence Waiver and what information and documents to submit with your application.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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