On December 15, 2009, the “Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009”, or “CIR ASAP” for short, and was introduced in Congress.  Highlights of the bill include an “earned legalization” program for those undocumented immigrants who were physically present in the United States as of December 15, 2009.  Those individuals could apply for conditional residence and, after six years, apply for green cards.  Special rules for youths are built in that would allow them a faster track to green cards and citizenship.

To reduce the visa backlogs, CIR ASAP would recapture unused visa numbers from past years and remove caps for spouses and minor children of U.S. citizens, Lawful Permanent Residents, and certain highly skilled workers.  Additionally, a new employment-eligibility-verification system with harsh penalties for hiring unauthorized workers would be put in place.

CIR ASAP would provide relief to millions of individuals and families negatively affected by current immigration regulations.  President Obama has indicated that he would like to see immigration legislation in 2010, but first on the priority list appears to be financial regulatory reform and clean energy legislation.  Interested citizens should take the opportunity to let their House and Senate representatives know how they feel about the bill.  Stay tuned for further developments!

In response to the unimaginable devastation that occurred as a result of the January 12, 2010 earthquake in Haiti, the U.S. government has announced that it will grant Temporary Protected Status (TPS) to qualified Haitian nationals.  This means that to qualify you do not have to be in a current lawful immigration status to be eligible to enroll into TPS.  While TPS is a temporary benefit that does not lead to lawful permanent resident status by itself , TPS status can be very helpful to those individuals who qualify.  TPS enrollment allows beneficiaries to remain in the U.S. for a temporary duration without the fear of deportation.  Once enrolled, beneficiaries can obtain legal authorization to work which also qualifies the TPS beneficiary to apply for a social security number and, in most States, drivers licenses. (8 U.S.C. § 1254(a)).

Eligibility requires that an individual prove that he or she is:

• A national of Haiti, or a person without nationality who last habitually resided in Haiti
• Have continuously resided in the U.S. since January 12, 2010.
• Have been continuously physically present in the U.S. since the date of the Federal Register Notice publication, and
• Meet certain immigrant admissibility requirements, and other TPS eligibility requirements (See INA § 244(c), 8 U.S.C. § 1254a and 8 C.F.R. §§ 144.2-244.4.)
• Satisfactorily complete all TPS application procedures as described in the Federal Register notice announcing Haitian TPS, the TPS application instructions, and regulations at 8 C.F.R. §§ 244.6 – 244.9.

Another good reason to enroll into TPS is that once enrolled, the government often extends the temporary status beyond the 18 month announcement, so long as participants remain eligible and re-register.  This VERY common occurrence allows a TPS beneficiary to re-register for additional periods beyond the anticipated 18 months, especially when the country has experienced such extensive calamity as has Haiti.  For example, many current TPS beneficiaries from countries like El Salvador and Honduras have been re-registering their TPS status for decades so long as they continue to meet eligibility requirements, timely re-enroll during subsequent re-registration periods, and remain admissible in the meantime.

The most important thing that a TPS hopeful can do is not to procrastinate correctly filing for TPS within the initial registration period! It is also important to stay abreast of future government bulletins that often circulate near the end of the specified TPS period.

To ensure the best and fastest opportunity to properly enroll into TPS you should contact a qualified immigration attorney who is experienced with TPS cases.

In some unfortunate cases the U.S. citizen spouse dies before being able to file documentation to legalize their alien spouse.  For many years, aliens in this situation were in a sad form of legal limbo.  Recently, the U.S. Citizenship and Immigration Services (USCIS) issued long awaited guidance regarding the means by which the surviving spouse of a U.S. citizen may obtain immigration benefits through “deferred action”.  Deferred action is a term for the exercise of prosecutorial discretion where the government indicates that it will not pursue removal actions against a particular alien for a particular period of time while granting certain benefits in the meantime.  It is not intended to be permanent, rather it is a temporary solution to an issue that is the subject of ongoing legislative and judicial efforts to resolve.  Each grant under the government’s program is good for two years.

Individuals who qualify for deferred action are the spouses of deceased U.S. citizens who died before the second anniversary of their marriage.  The surviving spouse qualifies for the temporary program if he or she was married to, and not legally separated from, the U.S. citizen spouse at the time of the spouses’ death; did not remarry; and is currently residing in the United States.

A surviving spouse qualifies for deferred action regardless of whether the U.S. citizen filed a Form I-130 petition for him or her.  He or she may ask to have qualifying children included in the deferred action request.  To be considered a “qualifying child” of a surviving spouse, the child must be younger than twenty-one or otherwise a “child” when the deferred action request is submitted; must currently reside in the United States; and must be unmarried.

Work authorization is available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity.  Travel authorization is also available to surviving spouses and qualified children granted deferred action.

A competent immigration attorney can assist you in pursuing your efforts to obtain deferred action.

There is an exception to the two-year meeting requirement in instances where both parties cannot meet because of either extreme hardship or due to a long established custom.  8 C.F.R. §214.2(k)(2).

USCIS is granted wide latitude in determining whether to waive the meeting requirement.  Unfortunately, the Immigration and Nationality Act does not offer any concrete guidance regarding when such a waiver is appropriate.  For instance the regulation does not even hint to what constitutes “extreme hardship” or “strict and long-established customs”.  In fact, the only way to know what USCIS is thinking regarding this waiver are the number of appellate decisions that come down, which shed some light on the area.

Extreme Hardship

In determining whether couples meet the extreme harship standard, USCIS approaches each case independently of any others and considers the totality of the petitioner’s circumstances.  In particular, the Service will consider whether 1. meeting the alien fiance is not within the petitioner power to control or change, and 2. whether the problem prohibiting the meeting is likely to last for a considerable time or that the duration cannot be determined with any degree of certainty. 

Many individuals consider themselves good candidates for the extreme hardship waiver of the meeting requirement because of financial problems or because of safety concerns regarding the alien fiance’s home country.  It should be noted that in almost every case, financial constraints alone fail to rise to the level of extreme hardship necessary to qualify for the waiver.  Moreover, claims for the petitioner’s safety in traveling abroad rarely rise to the level of hardship because of the theoretical possibility that the couple could meet in another country besides the alien fiance’s. 

Those most successful in the extreme hardship department are those who can point to a medical condition that prevents the meeting.  In such cases a great deal of individualized detail must be submitted to not only show that the petitioner has a medical condition that prohibits the meeting, but also that the medical condition prohibits the petitioner from traveling.  It has been suggested that a petitioner may qualify for the waiver by succesfully showing with great detail that the petitioner is not able to leave the U.S. due to a medical condition suffered by a member of his or her family.  In such a case, evidence indicating the length of time that the family member has suffered from poor health, the type of care the family member will likely require, and the type of medical care the petitioner provides to that member would be needed. 

Strict and Long-Established Customs

Petitioner’s also may qualify for a waiver of the meeting requirement when they can show that compliance would violate strict and long-established customs held in the beneficiary’s foreign culture or social practice.  Arranged marriages can qualify for K-1 visas, however unless the couple can provide sufficient evidence that the culture absolutely prohibits the two individuals from meeting before marriage the waiver will be almost certainly be denied.  For instance a great number of waivers have been denied in cases where ecclesiastical leaders have held open the slightest of possibilities that a couple might be permitted to meet, even when under the most limited and restricted circumstances. 

The bottom line is that USCIS is very stingy in granting this waiver.  So much so that unless the couple is willing to accept the possibility of significant delays in their case, I generally advise couples to make their best efforts to meet one another within two years of filing for the K-1visa despite great difficulty and sacrifice.   Due to the great difficulties in obtaining this waiver I strongly recommend that those who believe they qualify consult with a competent immigration attorney prior to filing.

Individuals who have been granted lawful permanent residency through his or her spouse, and within two years of entering the marriage, are usually deemed to be “conditional” permanent residents.   Under the law, conditional permanent residents must follow a comprehensive procedure to have his or her conditional status removed.  Conditional residents who do not comply with the requirements at the end of the two-year period will normally receive a letter shortly after the two-year period indicating that their residency status has automatically been “terminated” by the Immigration Service.  Removal proceedings before an Immigration Judge usually begins thereafter.

Should the alien resident and spouse remain married near the end of the two year period, a jointly signed petition with supporting documents should be filed within ninety days of the second anniversary of the grant of conditional status.  Sometimes both spouses will also be required to appear at a personal interview with the immigration service before conditions are removed.   

Conditional residents should NOT attempt to remove conditions by way of the I-90 application to renew or replace a permanent resident card.  I was retained this week by a client who had been incorrectly advised by a non-attorney immigration consultant to file an I-90 application when the client was instead supposed to file an I-751, with supporting documents.  They came to see me after their I-90 application had been rightly denied by USCIS.  The new client’s wasted time, filing fee of $370 to USCIS, and money spent for the bad advice will unfortunately not be returned to them.  Don’t make the same mistake.   

Occasionally marriages terminate prior to the second anniversary.  In this circumstance the conditional status can usually still be removed so long as a waiver based upon a bona fide marriage is approved by the Immigration Service.  A competent immigration attorney can assist you in successfully having  the conditions on your residency  removed.

Nearly every case for a visa is ultimately decided within a U.S. Consulate abroad, sometimes referred to as a U.S. embassy.  Each Consulate processes cases differently; nevertheless, the Consulate will eventually communicate with the parties at some point.  The way it does this also varies but will be made with the information submitted to it in the I-129f and G-325A’s.  Correctly indicating addresses and contact information is critically important throughout the entire process to ensure that you receive correspondence for the Consulate the first, and usually, the only time it is sent.  The information that the Consulate will provide informs the parties as to how it intends to proceed with the case.  Such information usually requests additional forms that it will need, the location of fingerprinting to be taken, medical exams to be made, and any additional supporting documents that is needed. 

Each Consulate will usually indicate its best means of communication.  Some prefer e-mail while others prefer telephone.  Occasionally it is necessary for parties to contact the U.S. consulate for a variety of reasons. If you are unsure of how to contact the U.S. embassy with jurisdiction over your case you can normally locate the pertinent contact information on the State Department’s website at www.usembassy.gov.  Be sure that when contacting the Consulate to be prepared to provide any case numbers that you have received from the National Visa Center (NVC) or the U.S. Immigration and Citizenship Service (USCIS).  Also, don’t forget to be patient!

Problems can arise at the Consular interview that can be fatal to attempts to obtain a visa.  In filing for a k-1 fiance for instance, determinations by a Consular official that the beneficiary is seeking the visa to enter the U.S. rather than for the sole purpose of marrying in the U.S., or that the relationship is not satisfactorily established are normally catastrophic.  Consular officials carry an enormous amount of discretionary authority.  It is very difficult, if not impossible, to challenge a negative finding even if a Congressperson or the Department of State itself disagrees with the Official’s decision.  Once denied, the petitioner is normally left with the options to wait for the recommendation of denial to make its way back to the USCIS (which takes months usually) and then attempt to rebut the finding, re-file anew, or consider marrying in the foreign country in order to seek entry with the K-3 spousal visa or permanent residence via Consular processing.  In the meantime, an enormous amount of time, effort, and money has expended.  The biggest disappointment of all, of course, is even more time spent apart. You want to get it right the first time!

Enough cannot be said about the importance of having the Beneficiary properly prepared for the interview.  For instance, he or she must be aware of what has been submitted to the government by the Petitioner in addition to being fully informed about the Petitioner’s past marriages, divorces, children, criminal history etc.  He or she must be able to demonstrate a familiarity with the U.S. citizen fiancé, have evidence of regular communication, and be able to express a sole intent to marry.  If you are not inclined to hire an immigration attorney, which I highly recommend, my Simple K1 Visa Guide has an entire section dedicated entirely to help you prepare fiance’s for the Consular appointment.  Be careful!

Whether or not it seems to make sense, all alien fiancé(e)’s entering the U.S. are required to submit to a medical examination at a clinic or hospital of the Consulate’s choosing before a visa will be granted. The purpose of this requirement is to screen the alien fiancé(e) for certain medical conditions relevant to U.S. immigration law. Additional information regarding the medical exam can be found at: www.travel.state.gov/visa/immigrants/info/info_3745.html

Don’t have the visa beneficiary rush out and obtain a physical exam on his or her own. The information that you are going to attend the medical examination is always provided by the Consulate. You will be charged for the appointment as well as for any vaccinations that you may be required to obtain.

I have had clients in the past who were either pregnant or nursing that could not obtain certain vaccinations. Should this situation apply to you, be aware that the alien may be required to wait until the vaccinations can be given before he or she will be granted the visa.

Drug Testing:

Drugs that are illegal in the U.S. are tested for in the alien’s body at the medical exam. Be aware that among a number of medical problems that can render the alien beneficiary “inadmissible”, testing positive for a controlled substance can render the alien inadmissible for up to three (3) years. (I’ve seen this happen to clients). Don’t let it happen in your case!  No drugs!

I have helped many individuals obtain K1 fiancé’s Visas that also had children they wanted to bring with them.  As you may recall, children of alien fiancé’s enter the U.S. on the K2 Visa. There are several important things to be aware of when children are accompanying the alien.

The U.S. government defines a child for immigration purposes as a son or daughter who is under 21 years of age. Thus, an alien fiancé’s child can only follow the K1 fiancé as a K2 entrant so long as the said child is under the age of 21.

Moreover, in addition to the several forms outlined in the simple K1 system for accompanying children, the Consulate will want evidence that the alien fiancé has received the requisite permission to travel outside the country with his or her child. Usually this is accomplished with a notarized letter written by the child’s other parent indicating his or her consent for the child to travel with the alien fiancé.

Children over the age of 18
Another important issue to consider before filing is that there are special rules that involve the ability of the U.S. step-parent to file for the alien child to become a lawful permanent resident after entering the U.S.  Normally, the Immigration and Nationality Act requires that children of an alien fiance be under 18 years of age at the time that the step-parent relationship occurs (the marriage).  This general rule however, does not apply to children who enter with K-2 visas because the the Marriage Fraud Ammendments of 1986 made such visas available to all ”minor children” of a qualifying alien fiance. 

Because the Ammendments failed to define what a ‘minor child’ was, the Service is obliged to allow children who enter with K-2 visas to adjust status even if they are over 18 years of age when the parent and step-parent marry.  The child must also have abided by the terms of his or her entry (marriage by the parent  within 90 days) and be otherwise admissible.  Nevertheless, the child must remain under 21 years of age by the time they adjust status to permanent residency via the U.S. citizen step-parent in order to be considered an immediate relative. USCIS’s current position on the exception can be found at: http://www.uscis.gov/files/pressrelease/K2AdjustStatus031507.pdf

Note, this exception only applies to children of an alien fiance who enters with a K2 visa and not to children of an alien spouse (K3/K4). 

The I-134 is required to help assure the Government that the alien fiancé will not become a public charge (welfare recipient) in the United States after entry.  The Form I-134 is often used in cases involving nonimmigrant visa applications such as the K1.  The Petitioner is to file an I-134 for the beneficiary but if he or she would not qualify financially by demonstrating the means to maintain an annual income equal to at least 125% of the federal guidelines another can usually step in as a joint sponsor so long as the joint sponsor is a U.S. citizen, or lawful permanent resident, and meets the financial requirements.

The sponsor agrees that he or she is willing and able to receive, maintain and support the beneficiary.  That he or she is ready and willing to deposit a bond, if necessary, to guarantee that the beneficiary will not become a public charge during his or her stay in the United States, or to guarantee that the beneficiary will maintain his or her nonimmigrant status, if admitted temporarily, and will depart prior to the expiration the authorized stay in the United States.  The agreement is binding upon the sponsor or joint sponsor for three (3) years after the entry of the beneficiary.  The information and documentation provided is also made available to the Secretary of Health and Human Services and the Secretary of Agriculture, who may make it available to a public assistance agency.

Here is a recent question I received about this:

“I am intending to marry my US fiancé and we are researching the process of the visa to make sure we are prepared for everything that will be required of us. The one thing we can’t find many answers to is the requirements for adequate financial support once I am in the States. How do we prove this and what sort of documents would I be required to produce at the interview? If they do not see us as financially fit can we be sponsored by someone who is?”

The government can look at a number of different things in determining adequate financial support.  In my experience the government prefers to use annual income supported by the last three (3) federal tax returns and W-2 and or 1099’s but there are other ways as well. Here is where you can download the most current poverty guideline from our site.

Also be aware that if you do not qualify a joint sponsor can be used to meet the requirement as well.  Often, if the sponsor cannot meet the requirement with income and tax returns alone my office usually encourages the sponsor to seek a joint sponsor who can meet the requirement with annual income.
Items the government can considered for adequate financial support may include.

• Annual Income. Supported by the affiant’s most recent federal tax returns and W-2’s.
• Savings. A statement from each bank or other institution verifying the balances on hand should be obtained.
• Personal Property. This can include the affiant’s major personal property (i.e., cars, jewelry).
• Stocks and Bonds. This is the market value of stocks and bonds held by the affiant. This also can include the value of mutual and other funds in which the affiant participates. One should attach a list detailing the individual stocks and bonds as well as mutual funds with an itemization of the number of shares and current market value (i.e., 100 shares of ABC Co., currently valued at $X per share).
• Life Insurance. The total dollar amount of life insurance held on the life of the affiant can be considered.  Include document verification.
• Cash Surrender Value of Life Insurance. The government can also consider the current cash surrender value of life insurance held on the life of the affiant. Include document verification
• Real Estate. This would be the total value of real estate held by the affiant, the amount of outstanding mortgages or encumbrances, and the address of the real estate. A rider should be used to list the address of more than one property.

You can find all the help you’ll need for all of these forms in the SimpleK1 Visa Guide as well. If you have any additional questions about this, please post it as a comment below.