New Details Come out on Deferred Action for Students

CIS held a call today to confirm developments on the latest deferred action process for Students who qualify for President Obama's new policy direction. The Immigration Policy Center noted some important points of the call:

• A new form will be available on August 15. All DACA requests will require payment of the standard $85 biometric fee, but no additional fee will be charged. Persons who wish to receive work authorization must pay, with limited exemptions, the current employment authorization document fee of $365.

• Information provided on the form will be kept confidential, including information relating to applicants’ family members or legal guardians, meaning it will not be used for immigration enforcement proceedings, unless the applicant meets current USCIS criteria for referral to Immigration and Customs Enforcement or issuance of a Notice to Appear (NTA) in immigration court.

• DHS will deem “significant” any misdemeanor, regardless of the sentence imposed, involving burglary, domestic violence, sexual abuse or exploitation, unlawful possession of firearms, driving under the influence, or drug distribution or trafficking. In addition, DHS will deem significant any other misdemeanor for which an applicant was sentenced to more than 90 days in jail, not including suspended sentences and time held pursuant to immigration detention.  Minor traffic offenses and convictions for immigration-related offenses classified as felonies or misdemeanors by state laws (e.g. Arizona SB 1070) will not be considered

My two cents . . . Remember, CIS is still not taking applications for this so don't send anything in now. Remember to consult a competent immigration lawyer about the pros and cons of exposing yourself to CIS just for a two year work permit before you decide to file anything. There may be other options that can lead to permanent residency that are more viable or suitable to you. Currently, deferred action only stays removal so is most likely to benefit those in removal proceedings who may qualify and deferred action does not lead to a green card. Deferred Action status and its application and associated programs can end/be lifted at any time by an incoming President. Please be careful and watch out for scammers!  

The Pros, Cons, and Future of the New Proposed Provisional Waiver Program for I-601 Waivers - YouTube

Check out my newest video: The Pros, Cons, and Future of the New Proposed Provisional Waiver Program for I-601 Waivers - YouTube:  I balance the pros and cons with the new proposed program, what is it, who is covered, what it doesn't do and the risks and potential benefits of relying on it. Feel free to comment on Youtube or this blog with any follow up questions about this new proposed policy. I know there is a lot of confusion around the Internet and amongst those who call me for consultations about this.

The Board of Immigration Appeals Refuses to Agree with CIS Decisions Denying Green Cards to Gay Partners who were Legally Married in their States, Despite the Federal Defense of Marriage Act

In June 2012, in four separate cases of CIS decisions in states where gay marriage was considered legal under state law, the BIA ordered the USCIS to complete full fact-finding to determine whether the marriages are legally valid and whether the spouse would qualify for a green card under the Immigration & Nationality Act if the Defense of Marriage Act did not exist.  In one case, the ruling re-opened removal proceedings for the spouse of a gay American who had an outstanding deportation order.  The Board of Immigration Appeals has never before re-opened removal proceedings or remanded green card petitions back to USCIS after denials based solely on DOMA Section 3. Currently, the Defense of Marriage Act serves as CIS's basis for refusing to grant green cards to gay spouses of US citizens because DOMA defines marriage as between heterosexuals only for purposes of federal benefits. DOMA has not been overturned by the US Supreme Court to date. 

The BIA's recent movement on this issue is a great sign but it's still not clear yet if future cases based on case marriage will succeed while DOMA is still valid law.

New immigration policy announced today for Dreamers

A major change in immigration policy was announced by the Obama Admnistration today. The DREAM Act that has been stuck in committee in Congress for years is similar to the new deferred action policy announced today. This is a temporary stay from deportation for certain children under the age of 30 who are in the US illegally.

Deferred action is a temporary "status" that protects someone from being placed in removal. Deferred action under the new policy would allow for a work permit (EAD). Details are sketchy as of today but we know for sure that the following is required to qualify:

• Been in the US for the past five years 
• In high school or graduated high school or have GED or honorably discharged from military 
• no major crime or multiple minor crimes be under the age of 30 

This deferred action does not give a path to permanent residency (a way for a person with deferred action to obtain a green card) or citizenship.

Deferred action will only be granted for 2 years at a time and is not guaranteed to be renewed at the end of the 2 year period. The new CIS memo addresses three areas. For individuals who have are encountered by ICE & CBP, these agencies should exercise prosecutorial discretion on whether to issue NTAs for those who would qualify for this deferred action on a case by case basis. Immigrants who are in removal proceedings but not yet subject to a final order of removal - ICE is instructed to use office of public advocate to identify those who would qualify for deferred action. More info to come. . .

Harry's Law Highlights Abuse Against Men - A Very Real Occurrence

I applaud Hollywood for giving fair treatment to the very sensitive issue of male rape by a female in a recent episode of Harry's Law on NBC.  The show began with one of the characters actually questioning if it's possible to rape your partner in marriage, which shows society's bias towards assuming all sex is consensual or expected to happen since one is married so there is no such thing as marital rape. Whether rape happens in marriage or in a dating relationship, or by a stranger, rape is rape. It's a power struggle having nothing to do with sexual desire. Rape is about exerting control over another human being.

The second issue raised was whether it was even possible for a woman to rape a man. In this episode, the male character claimed he was raped because he was given a roofie type drug or Viagra with side effects that dropped his inhibitions and he was forced into something he did not want to do (and was mortified and humiliated to tell his wife).

Rape and male abuse by women is a very real occurrence but much less talked about because most men are too embarrassed to come forward. In the immigration context, this embarrassment is amplified by fear that they will lose their green card or status in the US if they come forward, under threat of retaliation from their wife. 

In the many cases I represent and the many men I speak to consultations in abusive marriages, the conduct of their wives in these marriages not only include rape, but humiliation in sexual relations and forced sexual performance under severe conditions. This is all done under the threat of deportation or even physical harm, if not by the woman sitting on top of the man's chest beating him - then by threat of her brother, father, or uncle beating her husband up if he does not comply with her demands or do what she wants. In addition, many of these men fail to report the conduct of their wives because of the societal stigma of reporting abuse, especially when they live in a culture from countries such as India and Thailand where the man is expected to be the dominant and head of the family.

It is also often extremely difficult to remarry after an arranged marriage has fallen apart, let alone if allegations of abuse were the reason for the split.

• Divorce, itself, brings shame in many cultures on the entire family and dissolving the marriage because of an abusive wife creates the stigma that the man is not a real man or capable of handing his private affairs and controlling his wife's actions. 

• A man can be in literal physical danger from his wife's family if he returns to his home country - for bringing shame or hurting the wife's reputation by reporting the abuse or telling anyone, making the threat of deportation that the wife uses to control him in the relationship -  that more scary and real for the immigrant husband, who often stays in an abusive relationship to avoid the cultural and physical dangers he would face back home.

Abuse against men can be physical, financial, and/or psychological/emotional.    The hardest part of my consultations is helping men recognize that they don't have to live with the abuse. Many have never been married before and expect that all marriages are full of arguments, physical violence, yelling tirades, mood swings, and isolation from friends and family - because they know no other reality than what they're living with their wife now.

Abused men can be manipulated in ways that aren't typically used against women such as:

• being blackmailed into providing for the wife's family financially or 
• being forced into unpaid labor for the wife's family all under threat of being deported for noncompliance. 
• Many times, men are stalked at work and harassed all day over the phone and in person by their wives and their wives' family members that they lose productive jobs or are forced to quit because they can't maintain their concentration. 
• Abusive wives are also known to steal vital birth certificates, immigration documents including green cards, passports, and social security cards, of their spouses, as well as money and their husband's credit cards to mandate obedience to their demands. 

Many times, abuse happens to very well-educated men who are  caught in situations they did not expect with a woman who turned into a different person after they married. They feel trapped and helpless to change their circumstances, with their abusive spouse dangling their immigration status over their heads.

Scary new House Bill Could Rip VAWA Protections for Immigrants Apart

This is a summary of a new urgent Alert from the National Immigration Project about a  new US House of Representatives bill to be voted on likely by May 8, 2012 that would  re-victimize survivors of domestic violence and other crimes by forcing victims to be interviewed by local immigration offices not specially trained in victim issues; allowing abusers to participate in the self-petition process; and repealing U-visa crime victims’ path to adjust status.

EFFECTS OF THE BILL

HR 4970 is a GOP VAWA bill that has been introduced on the House side. The bill contains numerous provisions that actually would roll back protections in current law for battered immigrants. 

The bill would have a number of disastrous effects on survivors, among them:

·         make it more difficult and risky for abused aliens to self-petition for immigration relief (Section 801);
·         require that abused aliens seeking U visas report the abuse within 60 days of its occurrence,
·         require that the statute of limitations has not lapsed on the crime embodied in the abuse, and
·         require that the crime embodied in the abuse is actively under investigation or prosecution (Section 802);
·         require the Government Accountability Office (GAO) to issue a report on possible fraud in petitions and self-petitions by abused aliens for U and T visas  (Section 805);
·         repeal the provision in current law that makes it possible for "U" visa recipients to adjust to LPR status (Section 806);
·         provide exceptions to confidentiality promised to trafficking victims in order to permit information sharing "for national security purpose[s]" (Section 811);
·         require DHS to consider statements made by the abuser in cases where an abused alien is seeking (Section 812);
·         and a requirement that the GAO issue a report to Congress on the effectiveness of Section 802 (Section 813).

What you Can Do Now

Contact your House representatives (Call their office!!) to oppose HR 4970 (Cantor-Adams VAWA bill) 

House Switchboard:  (202) 225-3121 

Find Your Representative by Entering Your Zip Code: http://www.house.gov/representatives/find/#altcontact

When you call, ask if they are aware how the bill would harm, not help, immigrant survivors. Express your dismay that HR 4970 fails to recognize how public safety and quality of life are enhanced by increased reporting and extending protection to ALL victims, including immigrant crime victims.  Tell them that you are horrified that the bill would also re-victimize survivors of domestic violence and other crimes by forcing victims to be interviewed by local immigration offices not specially trained in victim issues; allowing abusers to participate in the self-petition process; and repealing U-visa crime victims’ path to adjust status.

Most importantly, please forward this request to anyone you know who can vote and is opposed to such abusive, restrictive immigration laws and supports survivors of domestic violence- your friends, family, faith-based organizations, domestic violence/sexual assault counselors, public health organizations, and especially your LAW ENFORCEMENT CONTACTS—it is imperative that their voices and perspectives are heard NOW.

www.nationalimmigrationproject.org
NIPNLG 1971-2011 - 40 years of working together for immigrant rights!

Unlawful Presence as a Child Can Come Back to Haunt You

USCIS's May 2009 Unlawful Presence Memo clarified how children can be affected by the permanent bar as adults for actions taken when they were under the age of 18. What's scary is that many immigrants are getting stuck abroad after their immigrant visa is denied at their consulate interview who had no idea about this change in policy.

A recurring problem I see in the waiver context is that many couples still resort to hiring notarios and document preparers for their I-130s (immigrant visa petitions) who do not know the law and fail to advise the couple of the risk that if the immigrant travels abroad, s/he may not be able to come back, sometimes for 10 years, sometimes longer depending on their past immigration history. I often receive calls from outside the US from an angry and frustrated US citizen who tells me that his wife was denied a visa and given the permanent bar and the notary they used never warned them. Now, they're stuck and have to consider seriously moving to Mexico. For years, Ciudad Juarez consulate applied the permanent bar against immigrants who had unlawful presence in their past and accrued under the age of 18. The CIS memo formalized this policy, falling in line with Ciudad Juarez's Department of State Consulate view, but now on a worldwide scale. Travel got even riskier. Yet, to this day, I still get the calls about immigrants stuck abroad because no one ever told them about the risks of travel.

One of the biggest, repeat problems I see now are with adults who entered the US illegally under the age of 18 who are now having problems applying for immigrant visas based on a family member or spouse's sponsorship now because of their illegal entry when s/he was a minor.  The understanding that a child could not have understood the consequences of their actions (illegally entering the US or overstaying) under the age of 18 has not been accepted by CIS in the unlawful presence context as is now formalized in its May 2009 memo.

The most notable problem is CIS's policy on the permanent bar.

Although CIS does not count unlawful presence (illegal stay in the US) against minors who have triggered the 10 year bar or the 3 year bar (unlawful presence doesn't start to add up until the child reaches 18), unlawful presence before the age of 18 does count against children for purposes of the permanent bar. 

If a child illegally re-enters the US after April 1, 1997 after being in the US previously for a year or more under the age of 18 after April 1, 1997, the child will have violated the "permanent bar."

The permanent bar does not allow for a waiver of the unlawful presence and the applicant must reside outside of the US for 10 years before reapplying for lawful entry. It doesn't matter if the child, now an adult, has an approved immigrant visa filed for him or her and waiting at the consulate abroad based on sponsorship by a US citizen spouse or parent or LPR spouse. The immigrant must reside outside of the US for ten years.

Note that the permanent bar is a different type of bar than the 10 year unlawful presence bar which would apply if an immigrant entered the US (illegally or legally and overstayed) and stayed for 1 year or more without lawful status and then departed the US. This waiver is waivable and if the waiver is approved, the immigrant can return to the US before the 10 year period. In contrast, the permanent bar provides no waiver and is triggered by that 1 year or more of unlawful presence or deportation followed by an illegal entry. If an immigrant had just departed the US and not re-entered, a waiver could be available. That's what so scary about the permanent bar, and now the fact that it is applying to apply against Adults based on their actions as child.

It is so important to always consult a competent immigration attorney before leaving the US or filing any documentation with USCIS and not rely on document preparers for legal advice. Doing so could be an incredibly costly and tragic mistake, leading to years of unnecessary separation from loved ones.

Unlawful Presence Update: Provisional Waiver Draft Regulations Released

In the past two weeks, DHS has finally put the pedal to the medal in releasing much anticipated draft regulations on the proposed provisional waiver program. If it gets enacted, the provisional waiver program would allow those with approved Immigrant Visas who have a US citizen spouse or parent who would suffer extreme hardship if the immigrant was not allowed to come back to the US in the next 3 or 10 years (depending on which bar was triggered), to apply for their waivers in the US before ever departing to their consular interview abroad. This would save bucket loads of time waiting abroad for a decision by the CIS office attached to the consulate, which could take more than 6 months in many locations and even more in Mexico. The provisional waiver process would allow the immigrant to wait in the US while the waiver is being decided and then once it's approved, then travel to the consulate interview. This would result in only a few weeks at most of a separation from their loved ones in the US.

Well, there are a few catches. The new draft regulations make clear that:

(1) There are no do-overs. If your case is not approved through the provisional waiver program the first time, you don't get a second shot at it. You would have to travel abroad, as under current procedure, and file for a waiver abroad and await the decision.

(2) There are no appeals to denials and no motions to reopen. Only CIS can issue an MTR on its own to reopen a case, which is not likely.

(3) As expected, permanent resident spouses and parents may not be used as qualifying relatives for purposes of the provisional waiver process; if your relative is one of these, you will have to go through the standard waiver processing that currently exists abroad;

(4) If you have an adjustment of status case pending, you can't apply under the provisional waiver program.

(5) A Big Problem -  If you have already paid your NVC fees and NVC has booked your consulate interview (but you haven't left the US yet because you were waiting for the PW program), you cannot stop now and postpone your interview in hopes to be able to use this process. If you have a consulate interview that has been scheduled, even if you postponed or missed it, you won't be able to file under the provisional waiver program.

The draft regulations are open for comment for 60 days before they become final and any changes are incorporated.  Let me know your thoughts or any concerns you read about in the regs and we'll try to get your voice heard.

Understanding Limits to the Fiance Visa

The fiancé visa, k-1, may be a tempting option to immigrate a girlfriend to the US as it seems to be the most straight forward and legal way to test out a relationship without committing to a marriage immigrant visa process and longer processing times. There are recurring problems with k-1s that many forget:

The k-1 only allots 3 month visa, not a green card. If you change your mind and don't want to marry, the k-1 visa holder can't change status to another visa, cannot extend their stay, and cannot adjust status (apply for a green card based on a different sponsoring spouse or based on a different family member or employer). Even if the k-1 later marries another US citizen, the k-1 will have to travel abroad to interview at the consulate abroad. This can many times lead to the ten year bar and the extensive waiver process because of unlawful presence.

The k-1 may be a little faster than an immigrant visa based on marriage but the downside is that the K-1 does not allow the immigrant fiance to enter the US with a green card. Marrying and going through the immigrant visa route and consular processing based on that and not the fiance visa route, would allow the immigrant to come into the US with a green card already, not a temporary visa. The trade off is the longer processing time, usually as little as an additional 3-4 month wait. If the fiance entered on a k-1, the immigrant fiance would have to go through adjustment of status process once they marry in the US to obtain their green card, which costs more in filing fees and takes longer for the immigrant to receive a green card and requires the couple to interview for the case.  There are pros and cons to filing as married or as engaged. Timing, money, and immigration history can have a major play in the right decision for your case. 

Prosecutorial Discretion Update: ICE Los Angeles

Prosecutorial Discretion is a remedy applied to sympathetic cases where certain aggravating factors (such as serious crimes, repeated violations of immigration law) are not present in cases pending before the immigration removal judges. Prosecutorial discretion (PD), if granted, could end in the closure or termination of removal proceedings against an immigrant who may not have any other relief available.  I've been watching ICE closely to see if prosecutorial discretion is actually becoming a realistic option and is actually being granted.

So far, this is what we know. In mid March 2012, Los Angeles ICE (Immigration & Customs Enforcement) Director Tim Robbins, and Acting Chief Counsel, Jason Aguilar met with local Congressmembers Judy Chu, Grace Napolitano, and Lucile Roybal-Allard and various nonprofit immigration organizations including the ACLU and American Immigration Lawyers Association (AILA) to discuss the implementation of prosecutorial discretion so far in Los Angeles.  LA has one of the largest ICE operations in the country so news here is helpful in understanding how ICE is handling these cases on a mass scale.

ICE confirmed the following new info:

• Los Angeles is currently reviewing about 50,000 cases. Los Angeles has about
• 20% of the nationwide immigration court case load.
• 22,000 cases have been reviewed.
• Los Angeles has administratively closed 200 cases.
• About 2000 cases (pending in Immigration removal hearings) have been identified for administrative closure pending background checks.
• Review of the remaining caseload is expected to finish by summer 2012. New cases will continuously be reviewed.

Even if a PD request was previously denied, ICE will still accept a new one technically. Whether a decision will change could depend on the arguments and how long ago.

The Acting Chief Counsel for the ICE attorneys in court stated that trial attorneys would mention/raise
to the Immigration Judge the potential availability of PD, which is a huge positive sign.  Whether or not this is actually happening and Immigration Judges are becoming aware of ICE's willingness to offer PD is something that remains to be seen in practice.

On the down side, still no work authorization (work permits, EADs) is available to those whose removal cases have been terminated or administratively closed due to a grant of prosecutorial discretion. LA ICE Director, Tim Robbins stated their is currently no plan to issue EADs as PD creates no "status". ICE believes the EAD issue is a CIS issue, because they do not have the authority to grant EADs. ICE will also not be granting "deferred action" to PD cases which he called a "unique" form of relief and only available for the most extreme cases.

No more foreign CIS office delays? Waivers for Unlawful Presence, Crimes & More to Be Filed at US Lockbox

In a teleconference today, US CIS announced plans to transition all usually foreign filed I-601 packages for unlawful presence, criminal, misrepresentation, and other kinds of inadmissability waivers to one central lockbox filing location in the U.S.  The practice now is to submit the waiver filing with the CIS office attached to the foreign consulate. This current process has resulted in a lot of delay and longer wait times for a final decision at certain consulates who have less CIS officers available to decide the waivers. So this is good news . . . in theory. 

Note: This new process has nothing to do with the provisional waiver process earlier proposed by CIS in January 2012. 

What this new process would do: 

Procedural change: 

Waiver applications can only be submitted to the lockbox in the US after the applicant has attended the immigrant visa interview abroad at the consulate and the consulate officer determines that the applicant is eligible to file a waiver. The waiver would be filed with the lockbox which forwards the petition to the CIS Nebraska Service Center for adjudication. CIS expects to train 26 officers on waivers to handle the expected increased workload. 

Proposed Benefits to this new process:

• Should be faster for applicants.  They also hope a new centralized place to submit the foreign filed waivers should stop great variations on processing times at different consulates; overseas offices cannot grow easily – some CIS offices abroad only have one officer to decide these case and the backlogs created are inevitable.  In contrast, service centers are huge (can pull staff from other units) and can respond quickly to increases in receipts of applications to avoid backlogs.
• Case status info will be available online through US CIS’s website once the application is filed and receipted.
• Process applies to all I-212s (Advance Permission to Reapply After Removal Packages) filed with Inadmissability Waivers as well
• E notification will be available – if you provide email address – can get receipt number emailed to you. 
• Implementation of this new policy is expected in late spring, early summer 2012.

Exceptions & Things to Think About:

• Applicants cannot apply from Havana – must file with intrasection there (only 10 cases a year)
• There could be certain situations overseas where CIS offices are available and could be faster for expedites than lockbox decisions which are expected to take no more than 6 months on average.
• Transition period for CDJ cases – between 75-79% are filed at CDJ. Now takes two months to review if instantly approvable. If not, the case referred to another office to adjudicate.  For the first six months of this new process, the applicant will have the choice to file at a lockbox or at CDJ. After this, will then all go to lockbox filings.
• As of today's teleconference, CIS is not  sure if will be transferring pending cases from consulates at the time the new procedure becomes effective or if CIS offices abroad will continue to decide those pending cases. 
• Refiles as the lockbox if the NBC denies the case will be available if the applicant chooses this route instead of appealing the denial to the CIS Administrative Appeals Office which could take over a year.

Although this a positive step in streamlining how waivers are decided, it's still frustrating because this new policy will not include those waiver applications that are determined to be necessary after an adjustment of status (green card process in the US) or for those applying for adjustment of status who know they will have to file a waiver. Those waivers will still be decided on the local level at the local field or district office. Scary, since there's no consistent training on waivers at the local level.

I'll let you know when we hear more about this new policy. 

New CIS Appeals Office Decision on Permanent Bar Helps Those Who Entered Illegally Prior to 4/1/97

We all know about the dreaded permanent bar = the law that was implemented on 4/1/97 that said anyone who was illegally present in the US for a year or more or who had been deported and then tried to illegally re-enter after either of these could not come back to the US for ten years. No waiver. Period. In recent months, CIS has wanted to retroactively apply this law to those who re-entered illegally before 4/1/1997 - before the law was in place.  If a person illegally re-entered after the effective date of the law, even if the unlawful presence was before 4/1/97, current case law in the 9th Circuit says the permanent bar applies. But this week, the CIS  Administrative Appeals Office gave immigrants a break finally on the permanent bar with an unpublished decision  from December 29, 2011 (reposted on Aila.org).

The Field Office Director of the CIS San Francisco, California office had denied the Application for
Permission to Reapply for Admission into the United States after Deportation or Removal (Form 1-
212), and the Adjustment Application filed by a man whose brother was a USC and had an approved Immigrant Visa available to him based on this relationship.

This is the factual summary from the decision:

"The applicant was a native and citizen of Guatemala who initially entered the United States without inspection on or about March 29, 1985. He was taken into custody by U.S. immigration officials on March 30, 1985, and found to be subject to deportation for having entered the United States without inspection pursuant to section 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(2). The Immigration Judge granted him voluntary departure to occur on or before October 10, 1985. However, the applicant did not leave the United States by October 10, 1985. Rather, he was deported to Guatemala at the expense of the U.S. government on October 11, 1985. And, he reentered the United States without inspection on or about November 30, 1989. Subsequently, on January 28, 2011, he filed an Application to Register Permanent Residence or Adjust Status (FOlm 1-485) as the beneficiary of a Petition for Alien Relative (Form 1-130) that was filed by his United States Citizen sibling and approved on June 30, 2005. The applicant concurrently filed Form 1-212. The applicant was found to be inadmissible (not eligible for a green card) because of 212(a)(9)(C) of the Immigration and Nationality Act - the permanent bar.

The AAO held that the San Francisco CIS Field Office incorrectly applied section 212(a)(9)(C) of
the Act as it only applies to applicants who were removed and then reentered the United
States on or after April 1, 1997. Since the applicant illegally re-entered before that date, he was eligible for his green card and was not subject to the permanent bar under section 2l2(a)(9)(C).

This is a great decision since this comes directly from CIS, itself (the AAO is the internal appeals office within the Department of Homeland Security).

Understanding the Financial Obligation to Sponsoring a Spouse for a Green Card

The Affidavit of Support is a contract with the federal government to reimburse the government for any means-tested public benefits that the immigrant receives in the 10 years after the immigrant is awarded their green card (becomes a permanent resident).  The affidavit of support must be filed with immigration for the permanent residency application to be approved.  If the green card case is not approved, the active support is not binding on whoever signed it.  A U.S. citizen spouse or Lawful Permanent Resident spouse must make a certain income minimum on  a yearly basis to sponsor the immigrant and must produce proof of ongoing employment or sufficient assets as well as have filed the last three years of tax returns and be willing to produce at least the latest tax return to immigration.

The U.S. citizen sponsor is responsible for paying back the government if the immigrant ever applies for and receives public assistance currently in the form of AFDC (cash aid), and non-emergency Medicare, among others.  Means tested public benefits do not include social security, disability, or unemployment wages earned by the immigrant. The U.S. citizen or lawful permanent resident’s obligation to reimburse the Federal governments under the affidavit of support does not end if the couple legally separates or divorces..   The U.S. citizen sponsor is still on the proverbial hook for the remainder of the ten years. The only ways to avoid this obligation are:

1.  Naturalization of the immigrant (immigrant becomes a U.S. citizen; the earliest the immigrant becomes eligible for citizenship is 3 years after permanent residency grant, if still living in marital union with their spouse);
2. The immigrant has worked or is credited with forty (40) qualifying quarters under social security laws;
3. The immigrant permanently departs the U.S.; or
4. The immigrant dies.  

If the sponsor refuses to reimburse, a federal, state, local, or private agency can seek reimbursement from or file suit against the sponsor for all means-tested benefits provided to the immigrant.    

• Marital and prenuptial agreements may be a useful tool for U.S. citizen spouse sponsors to hold the immigrant responsible for any potential reimbursement scenario.  The immigrant may choose in the agreement to waive a right to alimony, property, a spouse’s savings or 401k or other affirmative benefit in exchange for the risk of the Affidavit of Support creates for the sponsor if the immigrant ever falls on hard times in the future. 
• The immigrant may also choose to set up a trust or separate account for use by the U.S. sponsoring spouse and pay into it now, while the immigrant is working and has the financial means to fund it, in exchange for the sponsoring spouse assuming the Affidavit of Support risk. Many couples do not involve agreements at all, believing the potentiality of the immigrant falling on public assistance is so remote that the risk is minimal. 

U.S. citizen or lawful permanent resident spouse petitioners can be worried about this financial obligation being used against them in family court proceedings if the marriage ever crumbles. The immigrant will not get far in introducing the Affidavit of Support as proof of the U.S. citizen spouse’s obligation to provide alimony or other means of support in a family dissolution or alimony proceeding or in settlement negotiations if the marriage later breaks down. The contract is limited to reimbursement of means tested public benefits only and cannot force a family court to order support.   Alimony and divorce agreements are the purview of State family courts, not federal immigration law.

Some Unlawful Presence Waivers to Be Decided Inside the US Before Consulate Interview

The recent announcement from USCIS of its intent to propose a new rule regarding the processing of unlawful presence waivers has sparked a lot of of questions.  This issue is all over the media this week as well and many are confused.

Some Unlawful Presence Waivers to Be Decided Inside the US Before Consulate Interview  US CIS has announced a proposal to create a new rule allowing for those who are having to consular process and are subject to the 3 or 10 year bars for unlawful presence to file their waivers with US CIS in the U.S. before attending their consulate interview. This will eliminate long separation periods, especially in Ciudad Juarez, Mexico, between filing of the waiver and a final decision on the waiver (at which point, only with an approval can the immigrant reenter the US).  Important things to know about this proposal so far:  The provision is not in effect yet. We have no idea how long the rule will take to be implemented, although this is a positive step in that direction. According to today's teleconference with USCIS, the agency plans to introduce the final rule by the end of the year and the draft rule by spring 2012. No cases can be submitted under the provisional waiver process at this time. Only applies to those married to US citizens or have US citizen parents as qualified relatives for the waiver. It does not apply to those with Lawful Permanent resident spouses or LPR parents for purposes of the qualifying relative for the waiver. It applies to those under the age of 21 who have US citizen parents - i.e., immediate relatives. An immigrant parent who is being sponsored by their USC child over the age of 21 but who has either a qualifying USC parent of their own (petitioner's grandparent) or USC wife of the parent for qualifying relative for purposes of the waiver qualifies under the provisional program. Those married to lawful permanent residents or are qualifying for the waiver through LPR parents do not qualify for this special provision. These individuals would still have to consular process first, have the consulate conclude that unlawful presence exists and then file the waiver abroad. Only applies to 3 and 10 year bar waivers. If the immigrant has any other ground of inadmissability (misrepresentation, crimes, etc.), the immigrant must process the waivers (including the unlawful presence waiver) by traveling abroad for the Immigrant Visa interview, receive a determination from the consulate and then file the waivers with the consulate. Under this proposal, if the waiver is approved in the US, the immigrant will still have to travel to the consulate abroad for their Immigrant Visa interview but there will be no need to stick around to file the waiver as it will be considered in effect the minute the immigrant departs the U.S. if it has already been approved by CIS in the U.S.  If you are already abroad and waiting to file your waiver or waiting for your waiver to be decided, currently this provision does not apply to you. What this means for those who may be impacted:  You will have weigh the pros and cons of traveling abroad under the current system or wait indefinitely in the US until this new provision is in place. There are pros to processing as usual (going to the consulate abroad to file the waiver): You have an idea of how long it could take. At the consulate, typical processing times are available so you have an idea of how long it would take for your case to be decided. There is no indication of how long the case will take to be decided once the proposal becomes effective. If some of your arguments will be weaker or unable to be documented in a year or more, it may be better to file now with the consulate while you have updated and stronger proof. You don't want to wait anymore; you want the process over with. The waiver process can be emotionally draining and clients have often put their lives on hold awaiting the outcome of whether they will be separated a long time from each other depending on the outcome of the waiver. There is no guidance on what happens if a waiver is denied in the US under the provisional program. There is great concern that all denials will receive a Notice to Appear for immigration court and applicants will be placed in removal proceedings where cases are usually much more difficult to be approved.

What now? We expect more explanation on the new process once the rule making procedure ends for this provision which could take months before this procedure is put in place and utilized.  Currently, CIS is expecting the final rule to be in place by the end of 2012.

What is the 3 & 10 year bar?    The 1996 Illegal Immigration Reform and Responsibility Act (IIRAIRA) created three year, ten year, and permanent bars on admission to the U.S. for a variety of immigration status violations.These bars apply widely and affect immigrants who have family in the U.S., have worked and paid taxes in the U.S., and in many cases are otherwise eligible for permanent resident status. The three year bar to re-entry into the U.S.: The three year bar applies to individuals who have been unlawfully present in the United States for a continuous period of more than 180 days (6 months), but less than one year, and who voluntarily depart the U.S. The bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. The ten year bar to re-entry into the U.S.: The ten year bar applies to individuals unlawfully present in the U.S. for an aggregate period of one year or more who depart voluntarily (aggregate = CIS adds up all time in US without lawful presence, even if from different periods of time and different stays). Unlawful presence begins to accrue when the period of authorized stay expires or after an entry to the U.S. without inspection. Again, the bar is triggered by the act of departing the U.S., even if to consular process to obtain an immigrant visa. Yes, this may apply to you even if you are married to a U.S. citizen. The Waiver Option If the immigrant is married to a U.S. citizen or lawful permanent resident, or has a U.S. citizen or LPR parent, a WAIVER MAY BE AVAILABLE for 3 & 10 year bars but not for the permanent bar. To qualify for this waiver, which if approved, allows the immigrant to lawfully re-enter with the immigrant visa and not wait outside the US for 3 or 10 years, the immigrant must prove that his or her USC or LPR spouse or parent will suffer EXTREME HARDSHIP if the waiver is not approved.

The Prenuptial Agreement's Effect on a Marriage Green Card Case

A prenuptial agreement may be the deciding factor for a spouse who is hesitant about being involved with the immigration process in deciding to go through with the marriage.  There’s no guarantee that a prenuptial agreement will actually hold up later down the line in state family court as this varies with each case depending on the facts involved, given the inherently often coercive nature of the terms or the timing. For immigration purposes, though, the content as opposed to the enforceability of the agreement, is often the key issue for CIS when reviewing a marriage-based green card case.  Nothing in the statute requires a couple to volunteer the existence of a prenuptial agreement but if questioned about it by CIS officer at a green card interview, its existence must be disclosed or else the immigrant could face a misrepresentation bar to obtaining a green card and both the petitioner and immigrant could face civil and criminal charges and financial penalties for marriage fraud.

Why would a couple want to enter into a prenuptial agreement?   

• Many modern couples do so to protect assets that existed before their marriage, especially if this is a second or third marriage and they want to be able to leave those assets to a son or daughter.  

• Many couples also use prenuptial agreements so both parties feel that the marriage is being entered into for love and not financial gain and all the cards are on the table from the beginning.  

However, the very existence of a marital agreement may back-fire on the marriage-based immigration case.  

In every marriage-based immigration case, CIS is concerned with marriage fraud and will want proof that the couple married for love, not to evade immigration law.  Very much trapped in the mindset of the 1950s model of what a marriage looks like on paper, CIS officers routinely ask for proof of commingled assets including jointly held and actively used bank accounts, CDs, and stocks, housing held in joint tenancy, joint car loans and mortgages, and joint health, life, and car insurance. The modern couple that keeps their financial lives primarily separate due to retirement age, family trusts, or other needs, have a much tougher case to make.

Marital and prenuptial agreements may also muck up the waters with potentially compromising provisions to the immigrant that could appear as if there is a financial arrangement in exchange for the U.S. citizen’s compliance with the immigration process (i.e., waiver of alimony or child support in exchange for cooperation in signing the Affidavit of Support or cooperating in the joint filing to remove the condition on a conditional green card or non-interference or contact with CIS if the immigrant wants to remove the condition on their own or needs copies of financial documentation in the future for purposes of documenting the bona fides of the relationship).

When the relationship starts to deteriorate, marital and prenuptial agreements have been used by the petitioning U.S. citizen spouses as proof of the immigrant’s intent to marry only for a green card (permanent residency status) after the immigrant has signed the agreement in an effort by the US citizen spouse to maintain control throughout the immigration process and especially, the finances.  For this reason and due to the fact that these agreements are naturally suspect by immigration, they must be carefully drafted. Both parties should always consult a family lawyer and the immigrant should consult an immigration lawyer in addition before signing any kind of prenuptial agreement.