Monthly Archives: July 2021

Non-immigrant Visas, R-1 visa

Premium Processing

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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

 

Citizenship, Green Cards, Of Interest

Adoption options for Immigration—an overview

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One of the big issues in immigration law is adoption.  Everyone has heard of international adoptions—Americans going abroad and bringing home orphans from around the world.  That route, however, is much harder now.   There are two other adoption options that can be used for immigration purposes, but they are much more limited and are generally unavailable to most Americans.   Finally, there are people who do adoptions that will not work under immigration law.

The orphan adoption route that most people are aware of is governed by the Hauge Convention.   The Hague Convention was adopted to bring certain standards to the international adoption practice.   The momentum behind the Hague Convention came from a number of sources.  There was money in the adoption business and this led to fraud and child trafficking, including people buying children and then selling to orphanages so they could be adopted as orphans.  In the typical bureaucratic way of doing things, it was felt that if there was a lot more paperwork, there would be less fraud.   Then there was anti-western sentiment that was developing and various countries didn’t want to be known as a place where children were at risk and didn’t like the idea that America was adopting their children.   The Hague Convention was designed to appease the suspicion of these countries, but, even so, many countries have limited or stopped the adoption of orphans.   Finally, over the past several decades there has been an increase in the idea that children must be protected against parents — and this also contributed to the Hague Convention —- with the idea that if the paperwork is increased, somehow children will be protected from bad parents.  The result is that under the Hague Convention adoption has become difficult and less common, and, perhaps children are protected more from possibly bad adoptive parents, but they certainly are adopted less and instead remain in difficult and dangerous situations in their homelands with little hope of adoption.

There are still some countries which are not party to the Hague Convention where orphan adoptions can proceed outside of the restrictions of the Hague Convention.  However, many of these have also stopped adoptions — theoretically to protect the children, but I think that often the adoptions have been stopped for political purposes.  In my opinion, there has been a real war against children around the world, and restricting adoptions is one way that war manifests itself.

As mentioned above, there are two other options for immigration through adoption.    One is if a child from a non-Hague country is in the US and is adopted here.   That child may be able to obtain citizenship two years after the adoption.

The other option is an adoption done abroad by an American or someone who lives in the other country.  After two years the child can obtain United States citizenship.

Finally, I referenced adoptions that will not work for immigration purposes.   If the adoption does not fit one of the above-listed options, then the adoption will not work for immigration purposes.

One last thing to also know about adoptions.   If they are effective for US immigration purposes, and the adoptive parents are US citizens, the child does not need to immigrate.  They can, sort of, directly apply for US citizenship.   If the child is coming to the US or is already in the US, they need to go through the immigration process, but, instead of a green card, they automatically become US citizens.   If they are outside of the US and will be living with their parents, the parents can apply directly for citizenship without going through the immigration process at all.

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 a Visa, Green Cards

The Immigration Options for Relatives of a Green Card Holder

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Last week I wrote about the immigration options for relatives of a US Citizen.   There are two main types of relative:  Immediate relatives and preference categories.   A U.S. citizen can apply for his or her parents, spouse and unmarried children under 21 years old.  These are called immediate relatives.   Immediate relatives do not have a waiting list — they can come as soon as the processing on their visas is completed.

The other relatives of a U.S. citizen that can come are brothers and sisters and sons and daughters who are over 21 years old.  There are called “preference visa categories.”  There are different categories of visas for these classes of relatives and different wait times — the shortest of which is six years for most unmarried sons and daughters of U.S. citizens.

A Green Card holder, otherwise known as a Lawful Permanent Resident (LPR), has more limited options.   He can only bring over his spouse and his unmarried children.   These are divided into two classes.  The first class consists of a LPR’s spouse and/or unmarried children under 21.   There is currently no waiting list for these relatives, but that changes.   I have seen it be longer than a five year wait.   The other category is unmarried children over 21.  Currently there is a six-year wait for most of these children, but there is a ten-year wait for Filipinos and a 22-year wait for Mexicans.   If the LPR obtains his citizenship while he is waiting, the people convert into the applicable relative of a US citizen category and the new wait times, which are usually shorter, will apply.  If the corresponding category for relatives of U.S. citizens is longer, the visa applicant can elect to stay in the LPR-related class.   For example, right now, it is quicker for an unmarried son or daughter of an LPR to come to the U.S. than it is for an unmarried son or daughter of a U.S. citizen.   In that case, it would be better for the visa applicant to keep in the LPR visa processing category.

Almost always, these preference relatives will come through what is called “consular processing.”.  In other words, you will need to file a visa petition for them and they will need to wait outside the U.S. — usually for years, while the visa is processed and then while everything sits and waits for the waiting list to finally become current.  They are not allowed to just stay in the U.S. and wait, and often, they will not even be allowed in the U.S. on a tourist visa because they have an immigrant petition pending.  Sometimes, a person might qualify for some type of employment visa, and, as a result, be in the U.S. when their spot on the waiting list becomes current.  In that case, they can apply for Adjustment of Status and obtain their green card here in the U.S.

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 a Visa, Green Cards

An overview of the Immigration Process for other Relatives of a U.S. citizen if they are outside the U.S

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A U.S. citizen can apply for his or her parents, spouse and unmarried children under 21 years old.  These are called immediate relatives.   Immediate relatives do not have a waiting list — they can come as soon as the processing on their visas is completed.  However, there are other relatives who can come as well.   But these other relatives usually have a waiting list for visas.

The other relatives that can come are brothers and sisters and sons and daughters who are over 21 years old.  There are called “preference visa categories.”  There are different categories of visas for these classes of relatives and different wait times.   The wait times, currently, for unmarried sons and daughters of U.S. citizens is about six years for most visa applicants.   For unmarried sons and daughters from the Philippines there is a nine year wait.   For unmarried sons and daughters from Mexico there is a 23 year wait.  The reason for the extended wait is that there are a lot of Mexicans and Filipinos already in the U.S. and so there have been a lot of visa petitions filed by them for their sons and daughters.

The next visa category is for married sons and daughters.  Their wait times are 12 years for most applicants, 19 years for Filipinos and 24 years for Mexicans.  The final category are brothers and sisters of U.S. citizens.  The main waiting list is 14 years long, with a 19 year wait for Filipinos and a 22 year wait for Mexicans.

There is one benefit that goes with these “preference visa categories”.    A U.S. citizen who files for an immediate relative (parent, spouse of child under 21) can only file for that relative.   In other words, if your parents still have small children at home with them, they cannot bring them.  If your child has a baby, she can’t bring the baby with her.  If your parent remarried after you turned 18, you cannot file for the step-parent, and your parent cannot bring his/her spouse.  So, in short, immediate relatives can come more quickly, but if they are unwilling to leave their child or spouse, they cannot come at all.

However, an immigrant who is coming on a preference petition can bring his or her spouse or children under 21.   Even if they were unmarried or have no children when you first petition for them, if they get married and have children during the time they are waiting, they can bring them with them.  They can even bring a child who is born after the immigrant interview.

Almost always, these preference relatives will come through what is called “consular processing.”.  In other words, you will need to file a visa petition for them and they will need to wait outside the U.S. — usually for many years, while the visa is processed and then while everything sits and waits for the waiting list to finally become current.  They are not allowed to just stay in the U.S. and wait, and often, they will not even be allowed in the U.S. on a tourist visa because they have an immigrant petition pending.  Sometimes, a person might qualify for some type of employment visa, and, as a result, be in the U.S. when their spot on the waiting list becomes current.  In that case, they can apply for Adjustment of Status and obtain their green card here in the U.S.

As your children’s lives change, they can go from category to category.    An unmarried son can get married and change from the unmarried son or daughter category (six year wait) to the married category (twelve year wait) and then get divorced and go back to the unmarried category.  Of course, a brother or sister will remain your brother or sister.

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

 

 

Citizenship

Applying for Citizenship before becoming a Permanent Resident

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Did you know that in certain limited circumstances, you may be able to apply for U.S. citizenship before you become a permanent resident?   Normally, before you can apply for citizenship, you need to be a US permanent resident (green card) for three to five years (three if you are married to a US citizen and five if not).   However, as many of you know, there is a special provision for people who are married to US citizens who are full-time m-ssionaries outside the US.   In cases like this, the spouse of the US citizen is allowed to apply for US citizenship without any required residence in the US.

Normally, I tell people who qualify for this that it means that they can apply for US citizenship the day that they enter the US and receive US Lawful Permanent Resident status.    They do not need to wait any longer before applying.

However, if their time is tight and they need US citizenship as soon as possible, there is another option.   If you qualify to file for US citizenship as the spouse of a US citizen who is a full-time m-ssionary, then you might be able to file for citizenship even before you land in the US with your immigrant visa.   You need to file first for the immigrant visa and then you file for citizenship while you are waiting.  It might also be possible if you are currently in the US to file for citizenship while you are waiting for approval of your adjustment of status application.  I have helped one client file for citizenship before they entered the US.   I have never done it with someone applying for adjustment of status but it might be possible.

However, before you jump at this, you need to know the caveats.  The first is that you need to qualify for this m-ssionary-based citizenship process.  There are a number of requirements for this process.  The most important is that within 45 days after becoming a US citizen, both spouses need to leave the US for a year-long commitment as m-ssionaries overseas.  The second caveat is that it is somewhat risky.   You may wind up getting someone at the USCIS who doesn’t realize that this is possible and deny you (meaning that you lose the money you spent) — I know of no “official” rule saying that this can be done — it just has been something that they allowed — and they probably still do, but I can’t guarantee it.  The other problem is the fingerprints.   It used to be easy — you just got fingerprints on a fingerprint card and submitted them with the application.   However, it is more difficult to get fingerprints anymore.  There are very few places overseas which will do fingerprints that the USCIS will accept — usually only USCIS offices overseas and they have been closing and consolidating.  Finally, I have never done this for an Adjustment of Status.  I think it might work and it is easier to get fingerprinted for the USCIS in the States.  I think this would work, but you would need to want it enough to be the guinea pig!

If you think this might interest you, feel free to contact me for further information.

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