Thursday, August 25, 2011

245(i) Grandfathering Getting Tougher

245(i ) is an ever changing area of court interpretation. The Board of Immigration Appeals decided in Matter of Legaspi that an immigrant spouse cannot always grandfather under 245(i) and independently qualify for a green card if s/he is married to another immigrant who does have 245(i) grandfathering protection. 245(i) allows immigrants who entered the US illegally and who were sponsored for an immigration benefit (IV or labor cert) by a relative or employer by the cut off date of April 30, 2001 to obtain their green card in the US despite the illegal entry. The general rule, without 245(i), is that an immigrant must enter legally to obtain a green card in the US. If the immigrant cannot prove legal entry, the immigrant would have to travel to the consulate abroad to interview for their green card. But 245(i) saves the immigrant from having to travel abroad, if you can prove you qualify. An immigrant is "grandfathered" under 245(i) if they were a beneficiary of a petition filed by that date or were the spouse or child of an immigrant who was the direct beneficiary of that petition filed by April 30, 2001.

The BIA in Legaspi drew the line for grandfathering and made it all that more confusing. Try to follow this one. In Legaspi, the immigrant's wife was the child listed in a petition filed for her father by his father (her grandfather). The immigrant wife's father was the main beneficiary of the petition filed by April 30, 2011. Yes, the immigrant's wife is grandfathered under the father's petition. But, since the immigrant's wife did not have a petition directly filed to benefit her by that cut off date, he could not use her grandfathering status (as the child of a 245(i) beneficiary) to qualify himself as a grandfathered alien because he married her and skip consular processing, the ten year bar, and who knows what else.

As you can read, 245(i) can be very fact specific and complicated. Even 10 years later, it's still being used to qualify family for green cards.

Tuesday, August 16, 2011

Unlawful Presence & Criminal Waiver Process Changing Worldwide

CIS recently announced in June 2011 that worldwide changes to the inadmissability waiver process are underway. One of the biggest changes affects how long these cases take to be decided. Applicants for waivers can send in their waiver directly to the CIS office assigned to the foreign consulate. Prior to this, Applicants were required to send the waiver packet to the consulate (Department of State) which would then forward the waiver packet to the CIS office. This could take many months, especially for cases in Latin and South American countries where consulates have been notoriously slow. An applicant still has to receive notification from the consulate at the Immigrant Visa interview that they are eligible to file a waiver before the CIS office assigned will accept the waiver submission.

Another important change coming is that US CIS has plans to create one lockbox in the US for the direct filings of all inadmissability waivers, so no waivers have to be decided by overseas offices. This could also save applicants a lot of time and we hope, should streamline the process and make overall decisions more consistent.

Saturday, August 13, 2011

The In-Laws & Conditional Residency

Choosing whether to file a joint petition or a waiver to remove the condition on residency often comes down to what you can prove. I speak to many immigrants who have evidence of abuse or that they married for love (not immigration purposes) in the form of affidavits of relatives. Often times, relatives are the only witnesses. However, I usually never use the testimony or affidavits of the US citizen spouse's relatives. I understand that many times, the US citizen's family act helpful and claim to be upset with the US spouse's treatment of the immigrant or the US citizen spouse's immaturity. But when it comes down to it, they are the spouse's blood relations and their loyalty will always be there. Especially since in multiple types of waivers, the immigrant must show that the marriage fell apart because of the other spouse's fault; getting family to turn publicly on paper on their relative is unlikely. Exposing the US citizen's family to the type of waiver case an immigrant is filing with immigration by involving them runs a huge risk of the other spouse finding out what the immigrant is doing. This could lead to the other spouse retaliating by trying to contact immigration and make the immigrant's case even more difficult to prove. In my opinion, this is not worth the risk in 99% of all cases. There are other ways to document cases. Be careful.