Stephen, this one's for you.
Marriage to a US citizen does not protect a LPR (lawful permanent resident) from losing his/her permanent residency if the LPR and their US citizen spouse decide to live outside of the U.S.
Typically when an LPR expects to be out of the US for longer than 6 months for a temporary stay abroad but has no intent to relinquish their US residence, the LPR can apply for a "re-entry permit." However, CIS takes the position that even with a valid re-entry permit, absences of 1 year or more constitute "abandonment" of permanent residency. However, residency may be abandoned even if less than one year where person lives and works abroad.
It's best to wait on that job offer abroad if you can until you can become a US citizen. Once the LPR becomes a US citizen (usually in as little as 4 years after LPR grant given current processing times), the former LPR can live outside of the US as long as s/he desires without having to worry about being allowed to re-enter.
One other issue I noticed in your posting, Stephen. If you become a LPR based on employment, if you immediately leave the company and go work abroad, you also bring into question whether you ever had a bona fide job offer since you "left" the company right after you got your green card. This could be very difficult to explain to a new officer at the airport when trying to re-enter the US.
Monday, February 26, 2007
Thursday, January 04, 2007
Grandfathering under 245(i): Avoiding leaving the US to obtain a green card
Under INA 245(i), if a family or employment-based immigrant visa or labor certification was filed for an immigrant before the cut off date of April 30, 2001 and the immigrant was physically present or living in the US (legal or not legal), the immigrant will usually not have to leave the U.S. to process and pick up a green card abroad at a U.S. consulate. Many times, an immigrant's US citizen spouse filed after this cut off date for the immigrant who entered the US illegally and the immigrant is forced to leave the US to consular process the green card. The problem is that once an immigrant departs (leaves) the US, s/he could face a 10 or 3 year bar or permanent bar to re-entering the US for being in the US illegally. So, many times, departing the US just because the immigrant seems eligible for a green card could be a very risky move.
But many times an immigrant can avoid leaving the US if the immigrant's mother or father was sponsored under 245(i) for an immigrant visa (i.e., by their sister or brother or former spouse if married at that time), the immigrant was under 21 when their mother or father's visa petition was filed, and the petition was "approvable when filed" (either shown by an approval notice or if pending, underlying proof of qualification for the visa status).
For example, if Juan was 19 years old in April 2001 and his mom's (who is also illegally in the US) brother - Juan's uncle, sponsored Juan's mother for an immigrant visa based on the brother/sister relationship by April 30, 2001, Juan would be able to use that old filing to "grandfather" under the expired provision of 245(i), assuming he hasn't left the US, to file a new case based on marriage to a US citizen and will be able to get his green card in the US without having to leave to consular process even though Juan entered the US illegally.
Important: Figuring out if you qualify for 245(i) grandfathering can be complicated. Always consult an attorney to determine if this option is available to you and never leave the US after a period of illegal presence until you consult with at least one competent immigration attorney so you know your options and any potential consequences of your departure.
But many times an immigrant can avoid leaving the US if the immigrant's mother or father was sponsored under 245(i) for an immigrant visa (i.e., by their sister or brother or former spouse if married at that time), the immigrant was under 21 when their mother or father's visa petition was filed, and the petition was "approvable when filed" (either shown by an approval notice or if pending, underlying proof of qualification for the visa status).
For example, if Juan was 19 years old in April 2001 and his mom's (who is also illegally in the US) brother - Juan's uncle, sponsored Juan's mother for an immigrant visa based on the brother/sister relationship by April 30, 2001, Juan would be able to use that old filing to "grandfather" under the expired provision of 245(i), assuming he hasn't left the US, to file a new case based on marriage to a US citizen and will be able to get his green card in the US without having to leave to consular process even though Juan entered the US illegally.
Important: Figuring out if you qualify for 245(i) grandfathering can be complicated. Always consult an attorney to determine if this option is available to you and never leave the US after a period of illegal presence until you consult with at least one competent immigration attorney so you know your options and any potential consequences of your departure.
Tuesday, November 14, 2006
Entry on a Fiance Visa but Marry Someone Else
Under the Immigration and Nationality Act (INA), a fiance visa holder has 90 days upon entry with a fiance visa to marry the US citizen petitioner before the visa expires. That 90 day period often serves as a test period for couples who have been physically separated, sometimes for months, and have only been corresponding via email and instant messenger, or the phone to keep contact with each other. When reality sets in and the couple realizes that they really don't want to get married after living together a while or just one or both has changed their mind, the fiance visa holder has usually has only one immigration option - to return to their home country.
I often hear from couples who have met and married but do not realize that the immigrant spouse entered on a fiance visa, while engaged to another person, before meeting their current spouse. If that situation occurs, the immigrant has to consular process, and is ineligible for adjustment of status (the green card application process in the U.S.). The immigrant spouse is only allowed to apply for a green card in the U.S. without having to leave the U.S. and visit a consulate abroad if the immigrant marries the same person he or she was engaged to and who sponsored the immigrant originally for a fiance visa.
The problem that's created by this situation is mainly how difficult it could be for the immigrant to be able to re-enter the U.S. legally with another visa even if s/he is now married to a U.S. citizen (not the fiance visa petitioner). Usually, immigrant spouses come to me after many months of unlawful presence, not knowing the consequences of staying in the U.S. beyond the 90 days granted on the fiance visa entry. Many immigrant spouses face the three and ten year re-entry bars to admission and will have to apply for a waiver of the bar but only by showing that their new US citizen spouse will suffer "extreme hardship" if the immigrant spouse is not allowed to re-enter the U.S. So, many times, it's what we would call a "catch 22". The only way to obtain legal status and a green card (permanent residency) is to leave the U.S. to interview for it at a consulate abroad but the very act of leaving the U.S. may trigger one of the unlawful presence bars.
It's very important to document a case of extreme hardship if you can before the immigrant leaves the U.S., if a waiver is going to be attempted. In many circumstances, the risk of not being able to re-enter the U.S. far outweighs the potential benefit of a green card and many spouses wait to file until more time and hardship has developed, despite their unlawful presence in the U.S.
I often hear from couples who have met and married but do not realize that the immigrant spouse entered on a fiance visa, while engaged to another person, before meeting their current spouse. If that situation occurs, the immigrant has to consular process, and is ineligible for adjustment of status (the green card application process in the U.S.). The immigrant spouse is only allowed to apply for a green card in the U.S. without having to leave the U.S. and visit a consulate abroad if the immigrant marries the same person he or she was engaged to and who sponsored the immigrant originally for a fiance visa.
The problem that's created by this situation is mainly how difficult it could be for the immigrant to be able to re-enter the U.S. legally with another visa even if s/he is now married to a U.S. citizen (not the fiance visa petitioner). Usually, immigrant spouses come to me after many months of unlawful presence, not knowing the consequences of staying in the U.S. beyond the 90 days granted on the fiance visa entry. Many immigrant spouses face the three and ten year re-entry bars to admission and will have to apply for a waiver of the bar but only by showing that their new US citizen spouse will suffer "extreme hardship" if the immigrant spouse is not allowed to re-enter the U.S. So, many times, it's what we would call a "catch 22". The only way to obtain legal status and a green card (permanent residency) is to leave the U.S. to interview for it at a consulate abroad but the very act of leaving the U.S. may trigger one of the unlawful presence bars.
It's very important to document a case of extreme hardship if you can before the immigrant leaves the U.S., if a waiver is going to be attempted. In many circumstances, the risk of not being able to re-enter the U.S. far outweighs the potential benefit of a green card and many spouses wait to file until more time and hardship has developed, despite their unlawful presence in the U.S.
Thursday, October 19, 2006
Couple Still Together but Green Card Expired
Section 216 of the Immigration and Nationality Act creates a system where immigrants who have attained their conditional permanent residency are granted a green card for two years. Within 90 days of the two-year anniversary of the initial grant of conditional status, i.e. a green card, the immigrant and the immigrant's spouse must file with CIS a joint petition to remove the conditions on residency along with documents to prove that the marriage was not entered into for the purpose of evading the immigration laws in the United States. If the service approves the joint petition, it lifts the condition on the immigrant's residency status and the immigrant will receive a permanent green card valid for 10 years.
If a couple fails to file within this 90-day period, then CIS will terminate conditional residency status and will issue a notice to appear, a charging document that says that the immigrant has been referred to an immigration judge for removal proceedings.
If the immigrant fails to file a joint petition or even an application for waiver of a joint petition after the expiration of the conditional residency status, the immigrant's filing can still be accepted late if the immigrant can show "good cause" for the late filing. "Good cause" is not defined by law and is up to the discretion of the CIS officer whether or not there is cause for allowing a late filing. Therefore, it is always advisable that a very strong reason that is well documented is made to request the late filing beyond the 90-day period. The later the filing usually the more difficult the case will be to have its allowed to be filed. As opposed to a filing that is made during the 90-day period, a filing made days and weeks or even years after the expiration of conditional status will have to have with it a large volume of sufficient evidence to show that there is absolutely no question as to the bona fide nature of the marriage.
If the petition is never filed or even if filed late, the immigrant will begin to accrue unlawful presence. However if CIS accepts a late filed petition, the unlawful presence terminates and the conditional resident status will retroactively become authorized.
If a couple fails to file within this 90-day period, then CIS will terminate conditional residency status and will issue a notice to appear, a charging document that says that the immigrant has been referred to an immigration judge for removal proceedings.
If the immigrant fails to file a joint petition or even an application for waiver of a joint petition after the expiration of the conditional residency status, the immigrant's filing can still be accepted late if the immigrant can show "good cause" for the late filing. "Good cause" is not defined by law and is up to the discretion of the CIS officer whether or not there is cause for allowing a late filing. Therefore, it is always advisable that a very strong reason that is well documented is made to request the late filing beyond the 90-day period. The later the filing usually the more difficult the case will be to have its allowed to be filed. As opposed to a filing that is made during the 90-day period, a filing made days and weeks or even years after the expiration of conditional status will have to have with it a large volume of sufficient evidence to show that there is absolutely no question as to the bona fide nature of the marriage.
If the petition is never filed or even if filed late, the immigrant will begin to accrue unlawful presence. However if CIS accepts a late filed petition, the unlawful presence terminates and the conditional resident status will retroactively become authorized.
VAWA green card cases & illegal entries
The National Network to End Violence Against Immigrant Women and the National Immigration Project are considering litigation to challenge the unlawful denial of VAWA (abuse-based immigration green card) applications for applicants who are present without being admitted or paroled (Entered illegally).
The problem lies in two contradictory sections of the law. Pursuant to INA § 245(a), VAWA self-petitioners are eligible to adjust regardless of their manner of entry (so, even someone who entered illegally is still able to receive a green card despite kind of entry). Some CIS (U.S. Citizenship & Immigration Services) district offices have denied VAWA green card applications for people inadmissible under INA § 212(a)(6)(A)(i), who entered illegally, unless the entry was connected to the abuse.
While lawyers in the Network work on the lawsuit, in the meantime to win these cases, it's important to take note that there is no definition of "connected to" the abuse. This can mean, for example, that a batterer convinced the immigrant victim that it was "ok" to leave and re-enter the country, threatened the immigrant victim or her children emotionally, financially, or physically in such a way that caused her to re-enter illegally so she could return right away to the U.S. It could also be construed as emotional manipulating the immigrant victim as part of the cycle of control and violence by convincing her to re-enter the U.S. (knowing the only way she could was unlawfully), pretending that he would never hurt her again and that their marriage would be peaceful again, only to harm her again when she returned.
The problem lies in two contradictory sections of the law. Pursuant to INA § 245(a), VAWA self-petitioners are eligible to adjust regardless of their manner of entry (so, even someone who entered illegally is still able to receive a green card despite kind of entry). Some CIS (U.S. Citizenship & Immigration Services) district offices have denied VAWA green card applications for people inadmissible under INA § 212(a)(6)(A)(i), who entered illegally, unless the entry was connected to the abuse.
While lawyers in the Network work on the lawsuit, in the meantime to win these cases, it's important to take note that there is no definition of "connected to" the abuse. This can mean, for example, that a batterer convinced the immigrant victim that it was "ok" to leave and re-enter the country, threatened the immigrant victim or her children emotionally, financially, or physically in such a way that caused her to re-enter illegally so she could return right away to the U.S. It could also be construed as emotional manipulating the immigrant victim as part of the cycle of control and violence by convincing her to re-enter the U.S. (knowing the only way she could was unlawfully), pretending that he would never hurt her again and that their marriage would be peaceful again, only to harm her again when she returned.
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