Month: January 2016

Supreme Court to Hear Challenge to Obama Immigration Actions

The Supreme Court said Tuesday that it would consider a legal challenge to President Obama’s overhaul of the nation’s immigration rules. The court, which has twice rejected challenges to Mr. Obama’s health care law, will now determine the fate of one of his most far-reaching executive actions.

Fourteen months ago, Mr. Obama ordered the creation of a program intended to allow as many as five million illegal immigrants who are the parents of citizens or of lawful permanent residents to apply for a program sparing them from deportation and providing them work permits. The program was called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.

The president has said the program was the result of years of frustration with Republicans in Congress who had repeatedly refused to support bipartisan Senate legislation to update immigration laws. In an Oval Office address just before Thanksgiving in 2014, Mr. Obama excoriated Republicans for refusing to cooperate and told millions of illegal immigrants, “You can come out of the shadows.”

But the president’s promise has gone unfulfilled. A coalition of 26 states, led by the attorney general in Texas, a Republican, quickly filed a lawsuit accusing the president of ignoring federal procedures for changing rules and of abusing the power of his office by sidestepping Congress.

By ADAM LIPTAK and MICHAEL D. SHEAR The New York Times.

Survivor Benefits under INA §204(l): A Conversation with USCIS

On October 28, 2010, Congress enacted two measures designed to provide:

  1. broader self-petitioning rights for all widow(er)s of American citizens and their children; and
  2. expanded survivors’ rights for other immigrants, set forth in Immigration and Nationality Act (INA) §204(l).

USCIS issued guidance on INA §204(1) (PDF, 16 pages, 102 KB) in December 2010, but very little additional public information is available.

On July 27, 2011, the Citizenship and Immigration Services Ombudsman’s Office (Ombudsman’s Office) hosted a public teleconference regarding Survivor Benefits under INA §204(l). Senior Advisor Margaret (Peggy) Gleason interviewed two USCIS officials, Office of Policy and Strategy, Family and Immigrant Victims Protection Division, Adjudications Officer Erica Simpson, and Michael Sheridan from the Office of Chief Counsel. This teleconference focused specifically on INA §204(l). The elimination of the two-year widow penalty was not covered in this teleconference.

Ms. Gleason provided a brief overview of section 204(l), as summarized below.

In the past, only widows and widowers of U.S. citizens could continue to seek immigration status despite the death of their petitioning spouse. INA §204(l) expands eligibility for immigration survivor benefits to other categories of relatives, as well as to T and U non-immigrants, I-730 asylum derivatives, and derivative beneficiaries in employment and family-based preferences.

Individuals seeking immigration survivor benefits under section 204(l) must have resided in the U.S. at the time of the qualifying relative’s death; continue to reside in the United States at the time the immigration survivor benefits application is filed; and comply with all other residence and physical presence requirements applicable to those requesting Lawful Permanent Resident status. In certain circumstances, a survivor who would otherwise qualify under section 240(l), but for residing outside of the U.S. at the time of the qualifying relative’s death, might be allowed to request “humanitarian reinstatement” under 8 C.F.R. § 205.1(a)(3)(i)(C)(2) if he/she was the beneficiary of a petition approved prior to the death of the qualifying relative. While those seeking immigration survivor benefits under section 204(l) are still required to provide an Affidavit of Support (I-864), one may be obtained from a substitute sponsor.

Questions and Answers

How does an individual apply for reinstatement under section 204(l) if their petition was already approved prior to the death of their qualifying relative?

Ms. Simpson recommended that individuals with an approved petition should seek reinstatement by writing a letter to the USCIS office that adjudicated the petition, not where the petition was filed. The letter should specify the applicant is seeking 204(l) reinstatement. If an applicant already filed for adjustment of status, a request for reinstatement should be sent to the same office. Ms.Simpson suggested that the applicant should also provide documentary evidence as proof of eligibility. No specific documents are required, but decisions will be based on preponderance of evidence standard.

What are the differences between reinstatement under INA §204(l) and humanitarian reinstatement?

Ms. Simpson noted that humanitarian reinstatement and reinstatement under 204(l) are two different applications. Reinstatement under 204(l) is statutorily provided for qualifying applicants through a written request accompanied by documentary evidence such as a death certificate, evidence of continuous residence in the U.S., and evidence of a relationship with the qualifying relative. Humanitarian reinstatement is discretionary and available to applicants with an approved petition seeking to reinstate the petition on humanitarian grounds, regardless of proof of U.S. residence. In addition to a written request, an application for humanitarian reinstatement requires evidence supporting the humanitarian reasons for the request, and supporting discretionary factors.

When a survivor’s petition is reinstated, does it retain the priority date of the original I-130 petition?

An applicant’s reinstated petition will retain the original priority date. INA §204(l) requires USCIS to proceed with the applications as if relative hasn’t died. Additionally, Mr. Sheridan shared that an applicant may file their I-485, petition to adjust status and a request for reinstatement under INA §204(l) for the underlying petition at the same time, so long as the priority date is current. There are variations in approval notices since there is no standard form for reinstatement under section 204(l). However, Ms. Simpson said that petition type will be stated on the notice as will the approval date.

May an applicant seek section 204(l) reinstatement and simultaneously file Form I-485, Application to Register Permanent Residence or Adjust Status?

Ms. Simpson shared that an applicant may simultaneously file Form I-485, Application to Register Permanent Residence or Adjust Statusand a request for reinstatement under section 204(l), so long as the priority date is current.

Does the Child Status Protection Act (CSPA) impact those eligible for reinstatement under section 204(l)? Specifically, does the one year in which applicants need to apply for permanent residence run from the date when the visa first became available, or from the date that the petition was reinstated?

Ms. Sheridan explained that an individual covered by CSPA before their qualifying relative’s death will still be eligible for protection. An applicant who was unable to file for permanent residence because of the death of a qualifying relative will have one year from the date of petition reinstatement to satisfy the one year requirement during which they must seek to acquire permanent residence.

Must applicants seeking survivor benefits file an I-864, Affidavit of Support?

A Form I-864, Affidavit of Support is required for certain applicants for permanent residence under 8 C.F.R. § 213a., and anyone who is subject to those requirements must provide an Affidavit of Support from a substitute sponsor if the qualifying relative dies. This is true even if the relative dies after submitting an Affidavit of Support. Ms. Simpson explained that individuals with 40 quarters of qualifying employment are exempt from the Affidavit of Support requirement and thus do not need to file an Affidavit of Support from a substitute sponsor. No new requirements are created by 204(l) in this regard.

Callers also had the opportunity to ask Ms. Simpson and Mr. Sheridan questions, many of which are included below.

May an applicant file section 204(l) reinstatement and humanitarian reinstatement together? What if humanitarian reinstatement was already denied, may an applicant still seek reinstatement under section 204(l)?

Mr. Sheridan stated that USCIS may consider both types of reinstatement simultaneously. Mr. Sheridan explained that denials of requests for reinstatements are not appealable. However, an applicant may seek reinstatement under section 204(l) after humanitarian reinstatement was denied, if the applicant is now eligible to do so based upon the expanded eligibility criteria in section 204(l).

If an application for adjustment is pending, and the applicant is in removal proceedings, does an Immigration Judge have jurisdiction to reinstate a petition based upon section 204(l)?

Immigration Judges do not have jurisdiction over visa petitions or their reinstatement. However, Immigration Judges are free to grant adjustment when a visa petition is approved and visa number in available.

Is there a difference between seeking reinstatement for a pending petition versus an approved petition?

Mr. Sheridan explained that pending and approved petitions are treated differently because USCIS has regulations that provide for revocation of an approved petition upon death of a petitioner. Approved petitions must apply for section 204(l) reinstatement to continue seeking permanent residence.

Does death of the petitioning relative constitute “extreme hardship” for waivers of inadmissibility for survivor applicants?

Mr. Sheridan explained that a survivor applicant may seek a waiver for any grounds of inadmissibility. USCIS provides guidance on page 11 of their memo (PDF, 16 pages, 102 KB); “[a]s with any other waiver application that is covered by section 204(l), the fact that the citizen petitioner has died will be noted in the decision and deemed to be the functional equivalent of a finding of extreme hardship.” While these determinations are subject to discretion, Mr. Sheridan noted that no actual hardship to the qualifying relative needs to be shown if that individual has died.

http://www.dhs.gov/telecon-recap-survivor-benefits-under-ina-§204l-conversation-uscis

How to Bring my Fiancé to the United States?

Love knows no countries, borders, oceans, and believe it or not, it doesn’t even know immigration law. The process to bring your sweetheart from another country to the US is called the Fiance Visa or K-1 Visa. I am discussing here in simple easy to follow steps how to apply for K-1 Visa.

  1. First What is that Fiance or K-1 Visa?

    K-1 Visa or Fiance Visa is a non immigrant Visa that allows your non-US citizen fiance to travel to the United States to marry you within 90 days of entering the country. So, right after you tie your knots and have the first kiss as a husband and wife, well have some fun first and allow the county to issue you a copy of the marriage certificate, the finace, now the spouse, have to apply for adjustment of status with USCIS to become a Legal Permanent Resident (LPR). Please make sure first that you and your fiance are free to marry though. You must have met your fiance in person in the past 2 years. If the Fiance has children they will receive K-2 Visa. Separate applications must be submitted for each K visa applicant, and each K visa applicant must pay the visa application fee.

  2. So, Who is a Fiance under the Law?

    Under the immigration law, a fiance is the beneficiary of an approved application for an Alien Fiance; Form I-129F, who has been issued a nonimmigrant K-1 visa for travel to the United States in order to marry his or her U.S. citizen fiance. The marriage has to be valid in the state where you get married.

  3. Now How to Start this Process?

    The US citizen fiance will need to file Form I-129F in the USCIS office that serves the area where he/she lives. After this application is approved, it will be sent to the National Visa Center (NVC). The NVC will send you a letter with a case number and send the application to the Embassy or Consulate where your foreigner fiance lives.

  4. Now what about Paperwork? What Kind of Documents Needed?

    The foreign-citizen fiance will need the following documents ready to take to the interview with her/him: 1) Completed Form DS-160, Online Nonimmigrant Visa Application. The foreign-citizen fiance (and any eligible children applying for K-4 visas) must: (1) complete Form DS-160 and (2) print the DS-160 confirmation page to bring to the interview. 2) A passport valid for travel to the United States and with a validity date at least six months beyond your intended period of stay in the U.S. 3) Divorce or death certificate(s) of any previous spouse(s) for both you and the U.S. citizen sponsor 4) Police certificates from your present country of residence and all countries where you have lived for six months or more since age 16 (Police certificates are also required for accompanying children age 16 or older) 5) Medical examination (vaccinations are optional) 6) Evidence of financial support (Form I-134, Affidavit of Support, may be requested) 7) Two 2×2 photographs. The Photo requirements are listed on the I-129F Form. 8) Evidence of relationship with your U.S. citizen fiance for example, photos, correspondence, phone records, emails…etc. 9) Receipt of Payment of fees. Keep in mind that the consular officer may ask for additional information, such as photographs and other proof that the relationship with your U.S. citizen fiance is genuine. Documents in foreign languages, other than the language of the country in which the application takes place, should be translated. Applicants should take to the visa interview clear, legible photocopies of civil documents and translations, such as birth and divorce certificates. Original documents and translations will be returned.

  5. How abut that Financial Support thing? Do I Need to be rich?

    The foreign-citizen fiance will need to present evidence to the consular that he/she will not become a public charge in the United States. You may present evidence that you are able to financially support yourself or that your U.S. citizen fiance is able to provide support. The Consular Officer may request that a Form I-134, Affidavit of Support be submitted by the U.S. citizen fiance. Now there is a difference between Form I-864 and Form I-134. And NO. You don’t have to be rich. The U.S. citizen fiance will need to submit Form I-864 to USCIS with the application for adjustment of status to that of legal permanent resident following the marriage. For Form I-864, you need 125 percent of the federal poverty guideline minimum income requirement and the most recent year’s tax return. Applicants presenting Form I-134 will need to show that their U.S. sponsor’s income is 100 percent of the federal poverty guideline.

  6. Great, so what Happens after my Finace has K-1 Visa Approved?

    Generally, the Consular will give the foreign citizen finace her/his passport with a K-1 Visa attached and a sealed packet containing all the documents you provided and some other documents the embassy prepared. DON’T OPEN THE SEALED PACKET. Only the DHS immigration officer should open this packed at arrival at US airport. The foreign-citizen fiance must travel to the United States within 6 months from the issuance of the K-1 Visa, and must marry the US citizen fiance within 90 days from arrival in the United States. And they Lived Happy Ever After.