Did You know? — Sibling immigration wait

It is a long wait if you are a US citizen and you want to bring your brothers and sisters to the U.S.   For siblings located in most countries around the world, it is a 14 year wait.   For siblings in India, it is a 16 year wait.  For siblings in the Philippines, it is a 19 year wait.   For siblings in Mexico, it is a 23 year wait.   The reason it is such a long wait is that siblings have the lowest priority among family-based immigrants.  we have so many current US citizens from India, the Philippines and Mexico that there are very many people who have petitioned for their brothers and sisters to come to the US.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Applying for Citizenship – Maintaining Residence for Naturalization Purposes

Last week I wrote about the residence requirements for citizenship.  If you will recall, there is a required five year period of residence for most applicants for citizenship, but for people who are married to and living with a U.S. citizen spouse, they only need three years of residence.

I also wrote that if you leave the US for more than six months straight, you may have to restart the three or five year count.   Whether or not you have to restart the count will depend on if you can convince the USCIS that it was still a temporary trip and that you had continued to maintain your residence in the U.S.  If you leave the US for a year or more straight, they will make you restart your three year or five-year count — regardless of whether or not you feel that you had continued to maintain your residence in the US.

Today I want to address that potential break if you are out of the US for more than six months but less than a year.   If you stay out for more than six months straight, the USCIS will presume that you broke your residence for Naturalization purposes.  This does not mean that you will lose your green card — it just means that you need to restart your three or five-year residence period.

However, as I stated above, you have the opportunity to convince the USCIS that your six-month to less than one year trip did not break your residence.   The main goal here is to demonstrate that it was your intent to maintain your residence here in the U.S.   Here are some types of evidence that you might use in this regard.   If you did not intend to stay out that long, proof of that would be helpful, including proof of why you unexpectedly needed to stay out that long.   Proof that you kept your job in the US while you were out.   Proof that you didn’t have someone living in your house while you were gone — to show that you had a home that you could have returned to at any time.   Proof that your immediate family members stayed home in your home in the U.S.   And, finally, proof that you did not accept foreign employment while you were abroad.   Some other items would be proof that you kept up with your mortgage payments and property taxes, and that you filed your US taxes as a resident.

You will be able to provide this proof at your citizenship interview.  However, I would suggest providing as much of this evidence as you can when you apply.

Remember also, that if you are filing under section 319b as the spouse of a U.S. citizen who is a full-time m-ssionary overseas, you do not need to establish any period of residence in the U.S., so this whole discussion does not apply to you.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Applying for Citizenship – Residence Requirements for Citizenship

As most of you know, there are residence requirements that you have to satisfy before you can apply for citizenship in the U.S.   For most people, this is five years.   That means that you need to be a resident of the U.S. for the five years immediately preceding the date that you apply for U.S. citizenship.  The USCIS will actually allow you to file your citizenship application 90 days before you complete the five years

This five year period needs to be after you have received your green card.  This is residence, not physical presence.   You only need to be actually in the United States for one-half of the five years, but you need to live here the entire time.   In other words, you could take frequent visits outside the US, but as  long as you maintain your residence in the U.S. for the five straight years immediately preceding the date that you apply for citizenship, you have met this requirement.

Please note that this is “residence”.  In other words, if you get your green card and then go and live outside the US and return to the US frequently enough to obtain the required 2½ years of physical presence, that will not work.  If they conclude that you were actually living outside the US and only visiting here, that will not count as five years of residence.  In addition, they could take your green card — stating that you weren’t a resident here — and green cards are only for residents.

If you leave the US for more than six months straight, you may have to restart the five year count.   Whether or not you have to restart the count will depend on if you can convince the USCIS that it was still a temporary trip and that you had continued to maintain your residence in the U.S.  If you leave the US for a year or more straight, they will make you restart your five-year count — regardless of whether or not you feel that you had continued to maintain your residence in the US.

If, for the past three years, you have been married to and living with a US. Citizen while having Green Card, you can file at the three-year mark rather than at the five year mark.  You can file 90 days early, and all the other discussion about maintaining residence during the five year residence period applies to the three year residence period as well

For both the three-year and five-year residence periods, you also need to reside in the state where you file.   You need to start your residence in that state three months before you file for citizenship.

For certain m-ssionaries, if you are a m-ssionary for a U.S. based m-ssions organization or ch-rch, you may be able to satisfy the three or five year residence period even though you are living outside of the US the entire time.    If you are a permanent resident whose U.S. citizen spouse is a full-time m-ssionary for a U.S. based m-ssions organization or ch-rch and who is serving outside the U.S., you may be able to file for U.S. citizenship without any period of residence in the U.S. There are special rules for these situations — more complicated than I can address in this article.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Applying For Citizenship – Good Moral Character

One of the major requirements for applying for U.S. citizenship is that the applicant is a person of good moral character.   Although, in one way, this is a very broad standard, yet there are some guidelines.   The USCIS does not do a moral examination or inquiry.   What they do is ask a specific list of questions, and if the applicant answers “yes” to any of these questions, he is precluded from receiving citizenship for three to five years, depending on the length of his required residence period.   They want you to complete your required residence period (five years for most people; three years for most spouses of US citizens) and maintain good moral character throughout that time period.

The questions that they ask are listed on the Naturalization Application. In general, they relate to criminal activity, polygamy, drug trafficking, being a drunkard, failing to support your legal dependents, prostitution and immigration violations.   There are some other considerations as well.   If you committed the crime before the time period and were still on probation during the required residence period, that would prevent you being found of good moral character.   If you got lots of speeding or parking tickets — so many that it shows a disregard for the law, that might prevent you from being found of good moral character.  Sometimes some other moral issue comes up, and if it is so blatant that it really shocks the person interviewing you, he could conclude that that action or actions that you did could qualify as a failure to have a good moral character.

If any of these problematic actions apply to you, and it happened during the required residence period, then you cannot get citizenship at this time.   You would then need to wait until you have a full residence period of time free of these moral character issues, and then you can apply again.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Applying For Citizenship — An Overview

What are the requirements for obtaining citizenship?

In almost all cases, you need to have a green card before you can become a U.S. citizen.   If you are a U.S. citizen living abroad, and you have a child who is born abroad who is not a U.S. citizen, that child can become a U.S. citizen without first obtaining a green card.

In most cases, you need to have your green card before you can apply for citizenship.   However, if you are the spouse of a U.S. m-ssionary serving overseas, you may be able to apply for citizenship while your green card application is still being processed.  This may also be available to people in the military and spouses of people who are serving overseas in the military or on behalf of the U.S. government.

In most cases, you need to be at least 18 years old in order to apply for citizenship for yourself.   Being 18 doesn’t seem to be a requirement if you have been serving in the military for one year (but it is unlikely that anyone would be able to start serving in the military young enough to serve a year and still get citizenship before turning 18).

In most cases you need to be residing in the U.S. and have your green card for five years.  If you are married to a U.S. citizen, you may be able to apply in three years.  If you are in the military or are married to a person who is in the military or is employed by the US government or is a m-ssionary, and who is serving overseas, you may be able to get your citizenship without any time of residence in the U.S.

In most cases, you need to be physically present in the U.S. at least half of your required residence period.  If you are absent from the US for more than six months straight, they may require you to start counting your three or five years again.    If you are absent from the US. For more than one year straight, you will need to start counting your three or five years again.

In most cases, if you have a required residence period, you also need to be resident in your local USCIS district for three months before you file.    If you move just before you are ready to file, you will need to wait three more months before you can file.

Almost everyone will need to pass the Citizenship Exam. They test you on your ability to read, write, speak and understand English.   And then they test you on your knowledge of US history, government and the Constitution.   These tests are not difficult.   The Civics test (history, etc) is not hard as long as you study.   They provide you with a list of all the questions that they will ask.   The English test is very simple, and they provide you with a list of the types of words that they will use.   However, you do need to be able to have a basic understanding of English, because the interview will be in English and you can’t bring an interpreter.

In all cases, you need to establish that you agree with the oath of citizenship — regarding allegiance to the US and Constitution, and regarding willingness to serve in the military (unless you have a r-ligious objection).  You also need to establish that you have Good Moral Character.   There are a number of specific items which, if they apply to you, will result in a finding of lack of Good Moral Character.   However, they will look at your whole history.    I have heard of Good Moral Character being denied to a person who had a lot of unpaid traffic tickets.

I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Understanding the difference between a visa and status in the US — Part 2

Last week, I started this two-part series discussing the differences between Visas and Status.  Visas are just a document that indicates that someone at an Embassy or Consulate has reviewed your visa application and believes that you are qualified to enter the U.S. and that for the validity period of the visa, you are allowed to come to the US and request permission to enter the US in that status.

At the border, you will be examined by a customs inspector — an officer of U.S. Customs and Border Protection (CBP).  The officer, if he agrees that you meet the qualifications to enter the US in the requested category, will grant you status.  Status is permission to stay the US in the requested visa category.  That grant of status will also decide how long you may stay here in that visa category.

That grant of status is what is important.  He can give you one day of status, or he can give you two or three years or more.  Your status can end before the expiration date of your visa, but it can also extend past the date of your visa.  But, because of the great authority given to these border inspectors, their determination will almost always be the last word.

Several employment visas are governed by USCIS petition approval notices.  The R – r-ligious worker visa and the H – temporary professional worker visas, for example, cannot be issued for a period extending past the validity already approved by the USCIS.   But when you enter the US, the border guard will frequently feel free to completely disregard what is written in the approval notice, and go ahead and issue what he wants to.  As I stated above, thus frequently goes past the validity period of the visa and the petition.

It is my understanding that, officially, the USCIS does not like this situation.  It is their position that, if the border officer gives you extended time past the expiration of the petition approval, then you should go back and ask the CBP officer to “correct” it.   In general, if you do that, the CBP officer will refuse to do it, taking the position that he had the authority to do what he said.  And to be honest, I have never seen a USCIS officer give anyone a hard time for being past the end of his “petition-approved” status if he also had a currently valid I-94 from the CBP officer showing current status.

 I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Understanding the Difference Between a Visa and Status in the US — Part 1

I have people tell me all the time that their visa expires in six months, when what they really mean is that their stay here in the US expires in six months.   Likewise, I have had people say that they can stay here ten years because they have a ten-year tourist visa.  What is a visa?   And what does it have to do with how long you can stay in the US.

I will try to explain.   Like everything else in immigration law, it is a complicated concept.   A visa has nothing to do with how long you can stay in the US.   A visa is simply advanced permission to come to the border and ask if you can come in.   The idea behind a visa is that you have gone to an Embassy and they have said “We have reviewed this person, and, in our opinion, he is qualified to enter the US, and so we are giving him advanced permission to request permission to enter the US in the requested category.”  If they give you a 45-day visa, you have 45 days to come and request permission to enter the US in that category.   If they give you a 90-day visa, you have 90 days to come and request permission to enter the US in that category.   If they give you a ten-year visa, you have ten years to come and request permission to enter the US in that category.

In addition, they will give you either a one-entry visa or a multiple-entry visa.   A one-entry visa is just that — you are allowed to use it to enter the US only one time, and it must, of course, be within the validity period of that visa.    A multiple entry visa can be used for an unlimited number of entries during the validity period of the visa.

It is also important to remember that a visa is in no way a guarantee that you will be able to enter the US.   A visa only means that the Consulate talked to you and reviewed your documents and determined, to their satisfaction, that you are qualified to enter the US under the requested category.   It is not a determination that you are qualified and should be admitted.

When you come to the border, the border guard will make his own determination.   He has complete authority to decide that, regardless of the Consulate’s approval, he does not think that you are qualified to enter.   He will understand that the visa means that the Consulate reviewed your case, but he has complete discretion to ask his own questions and require his own evidence, and to decide that he does not agree; to decide that he thinks you do not qualify to enter under that visa.

Then, if he does let you in, he is the one who decides how long you may stay.  It has nothing to do with the length of time that the visa is valid.

I will continue this discussion next week, focusing on the “Status” side of the discussion.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

Non-Hague Convention Adoptions

Last week I spoke about the Hague Convention Adoption Process — which is difficult, expensive and time-consuming.   There are a number of other options for adoptions which can help in the immigration process.  I will lump them together under the title: Non-Hague Convention Adoptions.

The first class of adoptions I want to cover are orphan adoptions from a country that is not a part of the Hague Convention.   I could not find a list of these countries, and I didn’t want to take the time to go through the list of all the Hague Convention countries and figure out who is missing—but I can say that Russia and Ethiopia are not on the list — but neither of them allow adoptions by U.S. citizens at this time anyway.   But, if you should find an orphan in a country that is not a Hague Convention country and which allows adoption, then you can pursue an international adoption.   Much of what has been said about the Hague Convention Adoptions would also apply to these non-Hague Convention Adoptions, but there are significant differences.  You are allowed to meet the child before adopting.   Also, the adoption would not need to go through the other country’s Hague Convention approval office (because there would be no such office).  Omitting this step alone could be a major savings of time and expense.   Like with the Hague Adoption, the petition needs to be filed before the child turns 16, but it is not necessary to meet all the Hague Convention approvals before filing the petition, so you need less preparation time before filing.

There is another option for children (orphans or otherwise) from non-Hague Convention Countries if they entered the U.S. legally.  If they can be adopted by a US citizen while they are here in the US, and then stay here for two years in the custody of the U.S. citizen, they can then file for a green card and when it is approved, they will automatically receive U.S. citizenship.  The child must be completely adopted before reaching 16 years old, and the two years and the petition for a green card must be completed before reaching 21 years old.    I did this once for a child who was from a non-Hague Convention country.   This will usually NOT work for a child from a Hague Convention country, but it might in certain unusual situations.

There is one other option that is available—and this is even available in Hague Convention countries.  However, it will only work for a US citizen who is living abroad long-term.   If you are living long-term in a foreign country, and under the laws of that foreign country you are able to adopt a child before the child turns 16, then, once you have had the child living with you in your custody for two years, you can file for citizenship (or file to bring him to the US for citizenship) as long as you file the petition before the child turns 16.   The two years of required custody can start before the adoption as long as you have court-ordered custody.  There are a couple considerations for this type of immigration by adoption.  The first is that some countries don’t allow adoption by a foreigner.  The other is that some countries will allow you to stay long-term as a visitor but will not give you resident status.   If you are not allowed to “reside” in the country, it is possible that the US will say that the child was living with you but not “residing” with you because you were not “residing” there, you were just visiting.  This type of adoption is allowed outside the Hague Convention rules because of the two-years of residence abroad — turning the adoption into a local adoption instead of a foreign adoption.

Finally, I referred to adoptions that do not work for immigration purposes.   Most adoptions over the age of 16 will not work for immigration purposes.   The adoption may be legally valid for most purposes, but it cannot not be used for immigration purposes.   There are two exceptions to this rule.  The first is if the adoption is done thorough the orphan adoption procedures outlined above.   In that case, the adoption can be after 16 if the petition was filed before age 16.  The other is if a parent is adopting two children and one is under 16 and one is between 16 and 18.  In that specific case, the older child’s adoption can be valid for immigration purposes.

The other main type of adoption that will not work for immigration purposes is if a US citizen goes abroad and adopts a child but does not live abroad with that child for two years.   That may be a legal adoption, but it will not provide any immigration benefits unless the US citizen can live abroad with the child for two years.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

Hague Convention Adoptions

As I stated two weeks ago, the Hague Convention Adoption process is expensive, difficult and time-consuming.   I am not saying that you should not do it — many parents have persevered and completed the process, but you need to be prepared for difficulties, for waiting, for frustration and for the outlay of large amounts of money.  This is true for any adoption, but more so for international adoptions, and even more so if the international adoption is done through the Hague Convention — which covers most international adoptions.  In order to do a Hague International Adoption, you need to work through an accredited agency.   You will need to satisfy all the laws of your home state, the US government and the foreign government.   You will need to have a home study done.   Once you have applied for adoption and been approved, your information is sent to the desired country where they will choose a baby for you.  The child that they choose has to be an orphan or abandoned.    You normally cannot choose the child yourself unless it is a relative, or, I believe, disabled.  In fact, you are not even allowed to have met the child unless it is a relative, or, I believe, disabled.  In addition, the match needs to be approved by the child’s country which can be a long and difficult process.  Finally, once everything has been completed and approved, you file a petition to bring the child here to the US for adoption and the grant of US citizenship.   In order to complete this process, the petition has to be filed before the child turns 16.    As long as the petition is filed before the child turns 16, he will be able to immigrate, be adopted and become a US citizen.  The adoption can also be completed in the foreign country before the child comes to the US.  As you can see, the process has to start well before the child turns 16 if you will be able to complete all the preliminary steps and be able to file the petition before the child turns 16.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong

 

 

Premium Processing

The USCIS offers a Premium Processing Service for those willing to pay extra fees in regard to certain I-129 and I-140 petitions.   This Premium Processing Service is quite useful if you can afford it.  If you are filing for an R-1, the new Premium Processing fee is $1,500.  Other visa categories have higher Premium Processing fee.   If you pay the $1,590 extra filing fee, the USCIS will give you a money back guarantee to process your petition in 15 days — basically two weeks.   Within those two weeks, they will either approve it, deny it, or issue a request for further evidence.    The Request for Evidence, will, of course, delay things until you can provide the remainder of the evidence, but, once you return it to the USCIS, they will then have 15 business days to either approve or deny.   So, in that case, the three weeks turns into six weeks days (plus however long you take to gather and submit the requested additional evidence), but it is still much faster than waiting five to ten months for an approval.

Premium Processing is not available for all services provided by the USCIS.  Unfortunately, it is quite limited.  It is only available for certain I-129 and I-140 employer-filed petitions.   It will cover R-1 petitions, but only if there had previously been a successful USCIS site inspection at the location where the work will be performed.    It will not cover Religious Worker Green Card petitions (which are filed on form I-360).   Premium processing does not cover family-based immigrant petitions or any naturalization applications.

Important Note:  The fifteen-day processing fee only covers the work done by USCIS.   If you need to then apply for a visa at an Embassy, that process at the Embassy or Consulate is completely outside of the 15-day guarantee from the USCIS.

Is it worth it?  If you qualify for it, and have the money, I have generally strongly recommended getting Premium Processing.   The reason is quite simple.   The workers at USCIS are under pressure to be picky.   And, regardless of how well you document a petition, they can always find a reason to send out a time-consuming Request for Evidence.    However, the workers in the Premium Processing division are also under pressure to get these approved in fifteen days.  They don’t have time to be picky — to look for potential problems just to demonstrate that they are earning their pay.   They don’t want to send out a Request for Evidence unless it is clearly necessary, because that doubles their workload.   So the result is that if you pay the extra money for Premium Processing, you not only get a quick answer, but you usually get spared the aggravation of an unnecessary Request for Evidence.

However, lately, like everything else, Premium Processing has been becoming less reliable.   I have experienced them improperly rejecting Requests for Premium Processing of many R-1 petitions (this does not deny the petition — it is just that they refuse to do the petition in 15 days).   They will say that they do not have a successful site visit, when, in fact they have done a successful site visit.  But even when we point that out, they send back the same answer.  As far as I can tell, they are probably too busy and this is an easy way to lighten their load because we have no way to force them to admit that they are wrong.   This doesn’t mean that you shouldn’t request Premium Processing, but you should not build your plans around assuming that you will receive it.

I hope this is interesting and helpful.   Remember that this is not legal advice.  It is just a summary of certain aspects of immigration law which may or may not apply to your situation.   I encourage you to consult an attorney if you think any of this may apply to your situation.

Gunnar Armstrong