Category Archives: The Legal Immigrant – Immigration Blog

Biden Administration Proposes Immigration Bill to U.S. Congress: The U.S. Citizenship Act of 2021

On January 20th (day 1 of the Biden Administration), the White House announced it is sending a bill to Congress to reform major parts of the U.S. immigration system.

It includes an earned roadmap for certain undocumented immigrants, Dreamers, TPS holders, and immigrant farmworkers to apply for green cards and, eventually, U.S. citizenship. 

Other proposed changes include reducing the backlog in family-based and employment-based immigration; recapturing unused visas; allowing intended immigrants with approved family petitions to join relatives in the U.S. on a temporary basis while they wait for green cards to become available;  and eliminating the 3/10-year unlawful presence bars to re-entry. 

The bill authorizes additional funding to deploy new screening technology at U.S. ports of entry and to address the root causes of migration in the Central American region.

As of the date of this blog post, the bill has not been formally introduced in either the House or the Senate. It will NOT become law unless passed by Congress and signed by the President. 

To hear more about the proposed bill, click HERE for Episode 6 on The Legal Immigrant podcast. And if you want to encourage others to listen to the show, please post a 5-star rating and positive review on Apple Podcasts or other app!

Resource cited:

See also:

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Form I-129F Approval + K-1 Visa Grant = A True Success Story

A U.S. Consulate issued the K-1 fiancée visa to our client, after it denied her requests for an F-1 student visa renewal. The switch allowed the applicant to avoid the INA 214(b) requirement to establish nonimmigrant intent. The setbacks were overcome with careful documentation to support the Form I-129F, Petition for Alien Fiancé(e), and thorough preparation for the K-1 visa process.

The applicant first consulted me after the U.S. Consulate used INA 214(b) to twice deny her requests for the student visa renewal. She had assumed USCIS’ approval of her application for F-1 reinstatement — after she fell out of status for three years — would automatically lead to the visa issuance.

After one more failed attempt to get the student visa, we agreed to switch to the K-1 visa based on her recent engagement to her U.S. citizen fiancé.

I advised the applicant and her U.S. citizen fiancé on the Form I-129F petition, including the documentary evidence to submit to get an approval. It took four months for USCIS to approve the petition, which is the first step in the K-1 visa process.

Within a month, we received notice from the National Visa Center to proceed with the next step of filing the Form DS-160, K-1 visa application. After receiving all the forms and documents, the U.S. Consulate scheduled her for a visa interview in April 2020.

Unfortunately, due to COVID-19 restrictions that began in March 2020, the Consulate cancelled the interview. At the time, our client was also traveling in Europe and got stuck there for several months.  The K-1 visa interview was eventually rescheduled in December 2020. Our client was also able to return to her home country in time for the visa interview.

I counseled her on submitting the DS-160 visa application, the police certificates, the medical exam report, and the Form I-134, Affidavit of Support.

I confirmed that her prior F-1 visa refusals would not be a problem. She had fallen out of F-1 status for three years, starting in 2015. She departed the U.S. to visit her family abroad, after USCIS approved her Form I-539 application for F-1 reinstatement. USCIS agreed her failure to maintain status was due to circumstances beyond her control.

Her being out of status for three years did not make her inadmissible for 10 years under INA 212(a)(9)(B). No USCIS or Immigration Judge had officially found that she violated her F-1 status, before she filed her Form I-539 application. Under the policy that existed at the time, she did not accrue unlawful presence toward the 3/10 year unlawful presence bar. She also had no other inadmissibility grounds, such as a criminal record or fraud/misrepresentation to obtain a U.S. immigration benefit.

The U.S. citizen petitioner was unemployed and did not meet the income requirement to sponsor her. But her uncle agreed to submit a Form I-134 as a joint sponsor.

I also advised the client on what to expect at the visa interview, including questions on her U.S. visa history, biographic data, and her relationship with her US citizen fiancé.

Despite the obstacles in her case, she was finally issued the K-1 visa in January 2021. She has 6 months to enter the United States on the K-1 visa before it expires.

Upon arrival in the United States on the K-1 visa, she will have 90 days to marry the U.S. citizen petitioner. Following the marriage, she may file a Form I-485 application for permanent residence. If the marriage occurs outside the 90-day timeframe, she may still file for the green card, but the U.S. citizen must file a Form I-130 petition with the Form I-485 application.

When she submits the I-485 application, she may include a request for a work permit and travel authorization. The K-1 visa is for a single entry to the U.S. and does not provide work authorization. While her green card application is pending, USCIS may process her work card and travel document.

If the marriage occurs and the I-485 application is approved, as expected, our client will become a permanent resident of the United States. If the marriage is at least 2 years old at the time of the I-485 approval, she will get a 10-year green card without conditions. Otherwise, she will get a conditional residence card valid for 2 years. She will then need to file a Form I-751 petition to remove conditions and maintain her green card status.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

For more details, listen to Episode 5 on The Legal Immigrant podcast.

RESOURCES: 

From K-1 Fiancé(e) Visa to Green Card

K-1 fiancé(e) visas aren’t just for mail-order brides (but still carry strict requirements)

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa? – VIDEO

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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The Legal Immigrant Podcast: Episode 4 – Section 204(l) for Surviving Relatives

If the petitioner or principal beneficiary in an immigrant petition dies, may USCIS still approve the case? May the surviving beneficiaries still immigrate to the United States? In some cases, section 204(l) relief is the way.

Section 204(l) of the Immigration & Nationality Act allows certain beneficiaries (and derivative beneficiaries) to continue with an Immigrant Visa request or Adjustment to Permanent Residence application even after the Form I-130 petitioner (or principal beneficiary) has died.

Unlike the survivor benefits for widow(er)s of U.S. citizens, and unlike humanitarian reinstatement for principal beneficiaries of approved petitions, section 204(l) relief protects a broader category of persons if they show they resided in the United States at the time of the death, and they continue to reside in the United States.

Section 204(l) provides benefits not only when the U.S. citizen or permanent resident petitioner dies, but also, in some cases, when the principal beneficiary or principal applicant dies. It allows eligible derivative beneficiaries to continue with the green card process even if the principal beneficiary dies. Derivative beneficiaries are applicants who cannot be directly petitioned for, but may join the principal beneficiary of the petition based on a spousal or parent-minor child relationship.

In episode 4 of The Legal Immigrant podcast, I discuss who may be eligible for 204(l) benefits, the residence and admissibility requirements, the discretionary factors, and how to apply for the relief.

For more information, see:

Section 204(l) Allows Certain Surviving Relatives to Become Permanent Residents Even When Petitioner or Principal Beneficiary Has Died


Section 201(b)(2)(A)(i) Allows Certain Widows or Widowers of U.S. Citizens to Become Permanent Residents Even When the Citizen Has Died

Humanitarian Reinstatement Allows Certain Principal Beneficiaries to Become Permanent Residents Even When Petitioner Has Died

If you like the show, please go to Apple Podcasts, log into your ITunes account, and leave a 5-star rating and positive review. Or share and rate on another app. This extra step will help grow the show and help others find the information they need! 

Many thanks,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

The Legal Immigrant PODCAST is Now Up!

The month of January signals new beginnings and fresh starts. In December 2020 – with the new year approaching – I finally took steps to launch The Legal Immigrant podcast.

Through success stories and Q&As, the show will cover U.S. immigration problems that we help our clients solve.

Episodes 1 and 2 are now up. The podcast is available HERE  on the show’s website. Or find it on podcast apps like Apple Podcasts, SpotifyPlayer FM, and Listen Notes or via RSS feed.

At the start of 2020, I had tentative plans to launch a podcast. As a solo immigration lawyer and a productivity coach, I was conflicted on whether to start one or two podcasts. Over time, this project moved to the backburner while COVID-19, civil unrest, school closures, the November Elections, and other changes were at front and center.

Although the U.S. and other parts of the world are still not back to pre-COVID-19 “normal,” we can still attend to the essentials. We have a unique opportunity to build resilience, show grace to others, and learn new ways to maintain human connection.

Besides launching The Legal Immigrant podcast, I started another podcast, The Incrementalist. This productivity show will discuss how to make big changes or finish a big project in small steps, with the Incrementalist approach.

There’s a content strategy to release new episodes over the coming weeks. It will take systems – not goals – to keep the shows going. Stay tuned!

In the meantime, check out the first two episodes of The Legal Immigrant. If you find the podcast helpful, please share it with others. And subscribe so you don’t miss new episodes. 

And if you’d like to check out my other podcast, The Incrementalist, click HERE for the show’s website.

Your downloads, shares and subscriptions will help to grow the shows. In return, I will aim to provide valuable content and build connection with listeners through podcasting.

Thank you for your support and audience.

All the best in 2021,

Dyan Williams

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Removal of INA 212(a)(6)(C)(i) Bar + H-4 Visa Grant = A True Success Story

A U.S. Consulate granted the H-4 spouse visa to our client, after agreeing to remove the INA 212(a)(6)(C)(i) charge against her. This permanent bar was made 10 years earlier, when she applied for an Immigrant Visa sponsored by her prior U.S. citizen spouse.

A 212(d)(3) nonimmigrant waiver is the more common fix, but does not get rid of the bar. In this case, I advised the applicant to file a motion to reconsider and rescind the inadmissibility charge, instead of ask for a 212(d)(3) waiver with the visa. The facts and law did not support the Consulate’s finding that she used fraud or willfully misrepresented material facts to obtain a U.S. immigration benefit.

Problem: INA 212(a)(6)(C)(i) Charge is a Permanent Bar

In the CR1 Immigrant Visa refusal, the U.S. Consulate found that my client had willfully misrepresented a material fact in her prior request for a K-3 nonimmigrant visa. The K-3 allows the spouse of a U.S. citizen to enter the U.S. with temporary status and then apply for a green card through Form I-485 adjustment.

According to the Consulate, she had falsely claimed to be married to the U.S. citizen petitioner when she really was not. It reasoned that her Hindu marriage — at the time she applied for the K-3 visa — was not legally valid because their marital ceremony did not include the statutorily recognized rituals, Saptapadi and/or Agni Pheras.

The couple chose to leave out these rituals for personal reasons. They received a marriage certificate from the government authorities based on the ceremony that was performed. They did not expect the U.S. Consulate to question the validity of the marriage due to the missing ceremonial rituals.

At the K-3 visa interview, the consular officer instructed the applicant to complete a new marital ceremony with all the necessary Hindu marriage rituals. It issued a visa refusal notice stating the petition was invalid and would be returned to USCIS for revocation.

After following the Consulate’s instructions, the U.S. citizen filed a second I-130 petition to restart the process. The beneficiary later applied for the Immigrant Visa with the understanding that the new marriage met the Consulate’s requirements.

Instead of granting the CR1 visa, the U.S. Consulate denied it under INA 212(a)(6)(C)(i). The Consulate found the applicant had lied about her marital status in the K-3 visa request because she did not have a legal marriage to the petitioner at the time. She next filed a Form I-601, Application for Waiver of Inadmissibility with USCIS, as instructed by the Consulate.

A year later, the I-601 waiver request was denied. USCIS found there was insufficient evidence of extreme hardship to the U.S. citizen petitioner if the applicant did not immigrate to the United States. The separation led the marriage to fall apart and end in divorce.

Several years later, the applicant entered into a legal, bona fide marriage to an H-1B visa holder. The couple then contacted me for help in getting the H-4 visa at the U.S. Consulate.

I confirmed that section 212(a)(6)(C)(i) is a lifetime inadmissibility bar. The H-4 visa could be granted only if the U.S. Consulate agreed to remove the bar or the U.S. Customs & Border Protection (CBP), Admissibility Review Office (ARO) issued a 212(d)(3) waiver with the Consulate’s recommendation.

Solution: Motion to Reconsider and Rescind Inadmissibility Bar in H-4 Visa Request

With my guidance, the couple decided to ask the U.S. Consulate to remove the section 212(a)(6)(C)(i) charge and grant the H-4 visa, without requiring the 212(d)(3) waiver.

To support the Motion to Reconsider, I counseled the H-1B spouse and the H-4 applicant on the written testimonies and documentary evidence to present to the U.S. Consulate. I also prepared a legal memorandum explaining why the section 212(a)(6)(C)(i) bar did not apply to this case.

At the visa interview, the applicant was questioned about the prior marriage that led to the inadmissibility bar. To show the consular officer that the bar was made in error, she presented the Motion to Reconsider, including my legal memorandum and her affidavit. The Consulate accepted her documents and placed the case in 221(g) administrative processing.

After receiving my follow-up inquiry, the Consulate scheduled the applicant for a second interview. This was three months after her first interview. She answered more questions on her marriage to the H-1B visa holder. She also submitted more evidence related to the marriage in response to a second 221(g) notice.

Six months after the first interview, the Consulate issued a notice stating the applicant was eligible for a waiver of inadmissibility. I then followed up with the Consulate requesting again they review the Motion to Reconsider and lift the section 212(a)(6)(C)(i) bar.

After several more months of administrative processing and follow-up inquiries, the Consulate issued a notice stating a new waiver was in process because the prior waiver had expired.

At that point, I filed a request with the Visa Office, U.S. Department of State, asking it to counsel the U.S. Consulate to reconsider the inadmissibility charge, instead of require a 212(d)(3) waiver. The Visa Office contacted the Consulate and began to investigate my inquiry.

Outcome: Removal of Misrepresentation Bar and H-4 Visa Grant

A year after the applicant had attended her first H-4 visa interview, the U.S. Consulate agreed to remove the section 212(a)(6)(C)(i) bar. The Visa Office sent me an email stating the Consulate would contact the applicant with further instructions on her H-4 visa request.

Despite the long wait, my client was happy to have the bar lifted and to receive her H-4 visa without needing a 212(d)(3) waiver. The visa was marked with a “clearance received” annotation. Because her spouse was already in the United States in H-1B status, she was excepted from Presidential Proclamation 10052, which placed COVID-19 travel restrictions on nonimmigrant visa applicants.

With the removal of the 212(a)(6)(C)(i) charge, my client will not a need a 212(d)(3) waiver to extend her H-4 status or to get a new nonimmigrant visa. She also will not require a Form I-601/INA 212(i) waiver to immigrate to the U.S. with her husband, who may apply for permanent residence through his U.S. employer.

The H-4 applicant, her H-1B spouse and I communicated by emails and telephone calls. I had one in-person meeting with the H-1B spouse for the initial consultation. With effective collaboration, we convinced the U.S. Consulate to remove the (6)(C)(i) bar — which was made a decade ago — and grant the H-4 visa. This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Intro & Outro Music by: Sebastian Brian Mehr