Friday, January 18, 2013

Green Card Holders Wanting to Sponsor Spouse Need to Watch Out for Abandonment Issues of their Own

Obtaining a green card is a dream come true for many immigrants and the last thing any green card holder would want is to loss his or her permanent resident status. Many people apply to become citizens through naturalization as soon as they are eligible to avoid the possibility of ever being stripped of their residency and having to worry about how long they’ve been outside of the US while a permanent resident. 

A green card holder may lose permanent residency if they commit a certain criminal act or acts after becoming a green card holder, lied to obtain their green card, or have taken certain actions that show CIS or CBP that they no longer want their green card. These acts of abandonment can include if the green card holder:

1) Moves to another country intending to live there permanently

2) Remains outside of the United States for more than 1 year without obtaining a reentry permit or returning resident visa. However, in determining whether a green card holder’s status has been abandoned, any length of absence from the United States may be considered, even if less than 1 year (and . . . a re-entry permit is only one factor CBP looks at in determining whether you’ve abandoned your status – it doesn’t guarantee you’ll be let back in);

3) Remains outside of the United States for more than 2 years after issuance of a reentry permit without obtaining a returning resident visa. Remember, though, in determining whether a green card holder’s status has been abandoned any length of absence from the United States may be considered, even if less than 1 year;

4) Fails to file income tax returns while living outside of the United States for any period';

5) Declares his or herself a “nonimmigrant” for purposes of U.S. tax returns (to avoid paying US taxes);
Customs and Border Patrol (CBP) will look at the totality of the circumstances when a permanent resident is leaving or entering the U.S. They will inquire into how long they have stayed outside the country, for what purpose, and will weigh the green card holder’s answers against the elements listed above as well as any documentation you have proving that you still have significant family ties in the US, a life here (such as bank accounts that are actively used, property, work obligations, etc.)

Green Card Holders Wanting to Sponsor a Spouse
A green card holder may sponsor his or her foreign spouse in obtaining some type of legal status to enter the U.S. The motivation for such sponsorship is apparent, green card holders want to be with their spouses and build lives together in the U.S. However, the risk for abandonment arises frequently in these situations due to the fact that the green card holder spouse all too often leave the U.S. to be abroad with their spouses during the processing of the sponsorship application.
This can come up easily for newlyweds, especially if immigration bars or the lengthy waiting periods on the visa bulletin for some countries mean that that the immigrant spouse can’t come to the US for 8-10 years. The permanent resident spouse wants to be with their spouse and lives with them abroad – but this could bring down the whole application if CBP sees how long the green card holder has been out – the catch 22 (it’s a real marriage so you want to stay with your spouse, but you can’t stay out long without jeopardizing your own green card).
For example, a permanent resident woman married to a Mexican man may find it convenient and almost irresistible to cross into Mexico to wait with her spouse to obtain status. As stated in the first element above, moving to another country permanently is grounds for abandoning a green card. Here, let us assume that the green card holder spouse spent more time in Mexico than in the U.S. in order to be with her husband. With those facts, for all intents and purposes she would be living in Mexico and making a life there. This goes against a very important policy consideration that the U.S. government has in allowing for permanent residence in the first place: the U.S. wants immigrants to live, work, pay taxes, and make their lives in the U.S. Thus, even though the hypothetical green card holder woman might have a legitimate reason to want to be in Mexico to wait for her Mexican husband to obtain status, this is not a sufficient reason for the U.S. government. She would still be at risk for abandoning her green card, thus negating the sponsorship application altogether. 

There may be alternatives to just waiting out the green card eligibility in the foreign country. Perhaps the immigrant has a college degree or job offer in the US? Trying for a long-term non-immigrant visa (which would have the benefit of the immigrant being able to visit their spouse in the US) may be possible. Consult an attorney regarding your options.

Friday, January 11, 2013

Special Immigrant Juvenile Status May Be Faster Route to Green Card for Kids Instead of Adoption

 In 1990, the U.S. Congress established Special Immigrant Juvenile status (SIJS). SIJS is designed for non-U.S. citizen children who do not have permanent residence and have been abused, neglected or abandoned by one or both parents and need a green card. It is an alternative to an otherwise, potentially lengthy and sometimes, impossible, adoption process.

For a child to obtain SIJS, a U.S. state juvenile court or State court (such as a probate court that awards guardianship) must:
  1. Make the child dependent on the court (or place the child under the legal custody of a state agency or other individual appointed by the state or individual appointed by the state); and
  2. Declare that the child cannot be reunited with one or both of his or her parents due to abuse, abandonment or neglect; and
  3. Find that it is not in the best interests of the child to be returned to his country of citizenship.
SIJS allows a child to apply for a green card while remaining in the United States, despite how the child entered (even if entered illegally) and is a much faster process than traditional adoption in most circumstances. Adoption can take much longer if the home country must first approve of the adoption or if the adoption is subject to the Hague Convention. In determining if guardianship should be granted or the child is a dependent of the state, the court will weigh the totality of the circumstances in determining the child’s s a care and custody, but CIS has the final say in determining SIJs eligibility and a potential green card for the child.
From a timing standpoint, the SIJS application with USCIS can be filled concurrently with the green card application, granting the child a work permit (a way to a state ID and social security card) within 3 months on average while the case is pending with CIS. 
Immigration based on adoption would take much longer and in some cases would require the adopting U.S. citizen(s) to travel to the foreign country and stay there for some time and finalize an adoption abroad. There is also a physical custody requirement of two years with the adopting parents to formalize the adoption for immigration purposes. Another difficult issue has been when to permit the biological mother of a child born out of wedlock to release her child for foreign adoption without the consent of the biological father, if the mother cannot provide proper care. This is difficult because the father could be out of the child’s life or worse, be unwilling to consent.

Another benefit of SIJS is that the court can retain jurisdiction over the child even past the age of 18 whereas if a couple adopts a child for immigration purposes, the adoption must be legally final by the age of 16. For SIJS to be successful, it is advisable to work with both a probate or juvenile court attorney and an immigration attorney who can work together on the case.

Wednesday, January 02, 2013

The Good & the Bad of the New Provisional Waiver Program Rule for Unlawful Presence Waivers

The Federal Register will publish a final rule tomorrow announcing CIS's new regulation regarding the provisional waiver program. Since January 2012, many US citizens and their family members have been waiting for this to happen. Although the process is not expected to be available for applying for waivers until March 2013, this is a big step towards its implementation. Although this is a positive step, many of the changes immigration attorneys such as myself hoped would be in the final rule, have been left out.

In my review of the rule (and this is not legal advice that you should rely on! always consult a lawyer about your particular case) . . .

The negatives:

  • No appeal of waiver denials. Options: Sua sponte appeal (CIS appeals it of its own volition - yeah, right - not likely), Refile the case, or proceed to your Immigrant Visa interview abroad and once the determination that you need a waiver is made by the consular officer, have your relative file the case with the Lockbox as all waiver filings are now done for those abroad.
  • No concurrent filings of the I-212 and I-130. You have to wait until the I-130 is approved before a waiver case can be filed under this program. If you also require an I-212 due to a prior removal order, you cannot use the provisional waiver process and must file the waiver from abroad after the consulate officer makes a determination that you are eligible for the waiver. You file the I-212 at this point, too, and must wait abroad until both are approved and the consulate allows you to return.
  • Active removal cases: If you are currently in removal proceedings, this must be administratively closed or case taken off of the calendar before you are eligible to file under the provisional waiver program.
  • Only applies to hardship to US citizen parents or spouses. You cannot argue hardship to a permanent resident (LPR) spouse or parent even if your underlying I-130 is based on marriage to a US citizen (but have a weak hardship argument to the US citizen).
  • Filing for a provisional waiver does not guarantee you from being picked up, detained, or deported. It does not provide any type of legal status, temporary work permit, or right to stay in the US.
  • No notices of intent to deny are issued in cases when CIS is going to make a determination that you have another ground of inadmissability (i.e., misrepresentation) besides unlawful presence and are ineligible for the provisional waiver process. You basically get no warning except for an RFE (request for further evidence) which CIS expects to issue mostly on cases lacking evidence of extreme hardship.
  • Those awaiting rescheduled or scheduled Immigrant Visa interviews at consulates abroad who have delayed are waiting for the provisional waiver process are not eligible to file a provisional waiver. If NVC already set up your interview appointment, you are not eligible to file for the provisional waiver and must wait for the consular officer to make the determination that you are eligible for a waiver and you must remain outside of the US until the waiver is approved and the consulate allows you to return. The only way around this if you are still in the US and have delayed your interview is if you have a new Immigrant Visa case filed and are seeking to file the provisional waiver based on that new case.
  • Only unlawful presence can be waived through the provisional waiver process. If you also have to file a misrepresentation, smuggling, or criminal waiver, you cannot file a provisional waiver.

The good news:

  • There is no limit on how many times you can file for a waiver under the provisional program. Realistically, though, a refile needs to have different or more persuasive arguments to avoid a different result and the refile, itself, does not guarantee that you won't be deported during that time as the filing does not guarantee any kind of legal status.
  • A denial of a waiver case will not necessarily result in the issuance of a Notice to Appear (NTA), the charging document that lands you in removal proceedings, unless you are a person that falls within ICE's enforcement priorities who ICE would not grant prosecutorial discretion.
  • DACA (Deferred action for childhood arrival) cases are eligible who are in removal proceedings or ICE has granted prosecutorial discretion to as long as you can convince ICE to administrative closure of your case.

It's important to remember that this program does not change how difficult it can be to establish extreme hardship and in no way lessens the standard of proof required. It does not change the law, itself, only the filing procedure. It would be extremely dangerous to your future to approach this process without mounds of proof and strong arguments, exposing yourself to immigration without a strong case.  Always, always consult with a competent attorney before going forward with any immigration case, especially one that outs you to ICE and CIS, to determine what options are best for you.