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

Green Cards

Waivers for the Joint Petition to Remove the Conditions on your Conditional Residence

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As I stated last week, in order to file a Petition to Remove the Conditions on your Conditional Residence, you must have both the husband and wife sign it and it must be filed within the 90-day period before your two-year Green Card expires.   If you cannot file within that time period, you need a waiver.   If you file late, you need to show that you had good cause to file late — forgetting to file is not “good cause”.  You do NOT want to file late — it is difficult to establish good cause.

If you are divorced you can request a waiver of the requirement for joint filing by showing that you are divorced and it was not your fault.  It is not too difficult to establish this reason for a waiver unless you really were to blame.   They generally do not call in your ex-spouse to testify against you, but they could if they thought that you were lying.  If you are divorced, as stated above, you will need to be sure to provide plenty of evidence that your intention when you got married was to have a genuine life together.

If you are not divorced, but your spouse will not cooperate with you and refuses to sign the petition, then you need to request a wavier claiming that you will suffer exceptional hardship if you are forced to leave the U.S.   This is a difficult situation.  It is not easy to establish that you will suffer exceptional hardship.   But, unfortunately, this is the only option for a person who is going through marital difficulty but wants to try to reconcile and does not want a divorce.   This rule actually punishes people who do not want a divorce because getting a divorce makes it easier to get a wavier than if you stay married.

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

Green Cards

How to Remove the Conditions on your Conditional Residence

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Last week I discussed Conditional Residence.   It is just a Green Card, but with a twist — it is only valid for two years.   Then in order to extend it you need to remove the Conditions.  To do this, you need to file a special petition with the USCIS requesting them to approve the removal of the conditions.    This petition must be filed in the 90-day period immediately before your 2-year Conditional Residence card expires.   The petition must be filed jointly — both husband and wife must sign it.

Most people think that the purpose of this petition is to prove that you still have a relationship.   That is not actually correct.   It doesn’t matter if you still have a relationship at the two-year mark.   You could be divorced.  You could be separated.   That doesn’t really matter as to the point of the two-year petition.   The point of the two-year petition is to establish that when you got married two or three years ago, you meant it at that time.   However, if you are separated or divorced, the USCIS will most likely look at your evidence very closely to see if possibly the marriage was not entered into in good faith.

When you file this petition, you include whatever relationship evidence you can.   Joint bank or credit card accounts, jointly-filed tax returns, joint leases or deeds, joint utility bills, joint car titles, insurance policies covering both of your, social media postings, and pictures.  As I said, the purpose is not to show that you are still together.  The USCIS’ logic is that if you really meant to live together when you got married, you would have combined your life in the period after the wedding — relationally and emotionally, but also financially.  As I tell my clients — “money talks”.   What you do with your money shows your priorities in life.  The USCIS figures that a person who trusts his spouse with his bank account and his credit card account, must really be committed to that person.

If the petition is filed within that 90-day window, the USCIS will issue a receipt notice that extends the validity of your expiring green card for 18 months to give them time to process this petition.   They do not give a lot of priority to this petition because you already have your green card and are already here living and working in the US.   The extended validity receipt notice allows you to continue living and working here for another 18 months so they figure that they have a lot of time to finish processing the petition.

They are not completely correct in that it is no hassle for you to wait for your approval.   It is true that legally, having your expired green card and the Receipt Notice extending your green card is the same thing as having a currently valid green card, but try telling that to a person who is looking at your expired two-year green card and wondering whether or not they can trust this green piece of paper saying that your expired two-year green card is still valid.   I have never heard of someone actually getting denied entrance to an airplane or employment or something, but I have heard people tell me that they have had people hesitating to accept this document, wondering if it really is valid.

One other aspect where this delay is a problem.   You can apply for citizenship once you have completed 2 years and 9 months after first getting your green card.  It is not unusual for you to still be waiting for your Petition to Remove the Conditions on your 2-year green card to be approved.  Technically, you can apply for citizenship while you are still waiting for the ten-year green card to be approved.  However, I have run into problems with USCIS officers who delay things because they don’t like it that you filed before you actually got your ten year green card.

Finally, eventually, the new green card will come.  It will come valid for ten years.   At the end of those ten years you will need to file for a new green card if you have received your citizenship.   However, the green card extension application is relatively easy compared to the earlier applications and petitions.

Next week I want to look at waivers and processes that you need to take if you are unable to file within that 90 day window before your two-year green card expires or if you are divorced.

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

 

Adjustment of Status, Applying for a Visa, Fiance Visa, Green Cards, Of Interest

What is Conditional Residence and Who Gets It?

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Marriage fraud is a major problem in US immigration.  There is no shortage of people who are willing to pay someone to pretend to be a spouse so that the first person can obtain US resident status.  There are significant penalties for marriage fraud — ranging from denial of all benefits under immigration law, fines and jail time.  However, unfortunately, people do it regularly.

I see cases in the court records about people who were determined by the USCIS to have committed marriage fraud.  I have had potential clients come to me whom I had to turn away because there is no legal way to help them; they paid someone to marry them in the past and now they are legitimately married and cannot legally file for a green card.  I have had people come to me who have been accused by the USCIS of faking marriage in order to get a green card.

Concerned about this issue, many years ago Congress created “conditional residence”.   Conditional residence is really regular lawful permanent residence, but it is only valid for two years.  Every person who is immigrating as a spouse receives conditional residence if they get their green card less than two years after the date of their marriage.  If they get their green card on or after the second anniversary of their marriage, they get regular lawful permanent residence and get a green card which is valid for ten years.  But if they get their green card in those first two years, they only get a two year card.

I keep saying “get their green card”.   Technically, the deciding date is when they enter the US on an immigrant visa or when they get approved for adjustment of status.  It is that date which determines whether or not their lawful permanent residence is conditional.   At the consulate, after the interview, an immigrant only gets an immigrant visa.   He doesn’t get residence status until he enters the US with the immigrant visa.   An immigrant going through adjustment of status here in the US obtains permanent resident status when the application is approved — which could be with or without an interview.  In either case, the green card (regular or conditional) then comes in the mail.

If a person gets a conditional green card, in the 90 days before the card expires, he has to file a special petition with the USCIS requesting them to approve the removal of the conditions.    To make it simple, I tell people that they are filing for their ten-year card.  But in actuality, they are requesting the removal of the conditions on their permanent residence.   The ten year card is issued as a result of the removal of the conditions.

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

Expedited Citizenship for M-ssionaries

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Don’t forget that there are special citizenship provisions for spouses of US m-ssionaries.  It is much easier than many people realize.   It can be obtained with no required residence in the US.  You will need to get a green card first, but then, if you satisfy the requirements, you can immediately apply for citizenship.   This allows you to enter the US at any time with peace of mind.  Please let me know if you have any questions.

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

Adjustment of Status, Applying for a Visa, Green Cards, Public Charge- Financial Requirements

The Affidavit of Support – Should you sign an Affidavit of Support?

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If you will recall, we have been talking about the Affidavit of Support that is required whenever a person immigrates based on his relationship to a U.S. citizen or lawful permanent resident.    A sponsor (discussed several weeks ago) needs to establish that he can keep the immigrant off welfare.  As stated earlier in this series, this is a very serious and long-reaching commitment which could last years.  Should you sign such a commitment?

It really is a personal question for each person.   When I am asked, I tell the inquirer that it is a serious commitment and could open them to serious liability.   However, I also tell them that each of my clients have always been able to find someone who is willing to sign.   The immigrant cannot come unless someone will sign for them.

The bottom line comes down to two or three questions.  The first is, how important is it to them that the person comes?  It is not a good idea to open yourself up to liability in regard to something that is not important to you.   The second question is how much do you trust the character of the immigrant?   Do you believe that the immigrant is going to come here and do their best to stay off welfare?   I know of cases—none of them my clients—where an immigrant came here and used the sponsor and the affidavit of support as a way of living here and getting free money.   You need to be confident that the immigrant is worthy of your trust.  Finally, there are such things as medical emergencies that could possibly result in the sponsor being responsible.   Are you willing to take that risk if the immigrant can’t get insurance?  What if you know the immigrant is in poor health and will need medical treatment?    I know of no cases where a sponsor was made responsible for medical treatment, but it is possible.   You need to assess your potential liability and your willingness to possibly be held liable.

In short, it is a difficult decision.   You need to be confident that you have thought it through carefully, that bringing this immigrant here is important to you and that you are willing to take the risks involved.

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

 

Adjustment of Status, Applying for a Visa, Green Cards, Public Charge- Financial Requirements

The Affidavit of Support – The Required Intent to be a Sponsor

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If you will recall, we have been talking about the Affidavit of Support that is required whenever a person immigrates based on his relationship to a U.S. citizen or lawful permanent resident.    A sponsor (discussed several weeks ago) needs to establish that he can keep the immigrant off welfare.  It used to be that all you needed to do to satisfy this requirement was provide an Affidavit of Support.   By signing the Affidavit of Support, the sponsor or joint sponsor was guaranteeing that he would fulfill the requirements of being a sponsor.

However, that all changed under President Trump.  Under his new regulations there are no clear rules — the Department of State (at the embassies and consulates) and the USCIS are supposed to look at the big picture and decide if they believe the immigrant will not go on welfare.   As part of this process, they look at the relationship between the sponsor and the immigrant to see if the sponsor is likely to keep his promises.

How do they do that?   They look at a number of factors.  Chief among them are how close is the relationship between the sponsor and the immigrant, can the sponsor really afford to help the immigrant and will it cause too much hardship to the sponsor to help the immigrant?  In a sense, these questions were always important, but they never looked too closely at them.   Now, under the new rules, they are supposed to look at these factors more carefully.

Practically, speaking these factors are not too important when the petitioner/sponsor is the spouse of the immigrant.  They most likely will assume that the petitioner wants to fulfill his duties and will sacrifice for the immigrant.  This would also be true if a parent is petitioning for a dependent child or elderly parents.   However, the further the relationship gets attenuated, the more closely immigration will look at these factors.   How likely is it that a brother will sacrifice to help keep his sibling’s family off welfare?

This question becomes more important if you are looking at a joint sponsor.   Is there a strong enough relationship to induce the joint sponsor to sacrifice in order to keep the immigrant off welfare?  If the joint sponsor is only a friend of the petitioner and is only doing it as a favor to the petitioner, that could raise questions in the mind of the reviewing officer.

Therefore, when I am submitting an affidavit of support from a petitioner, I look for a strong affidavit of support so that it is clear that the sponsor can easily support the immigrant.   If it is not a strong affidavit of support, we submit an affidavit of support from a joint-sponsor.

However, when we are looking for a joint sponsor, I look for three qualifications: 1) there is a strong relationship between the joint sponsor and either the immigrant or the petitioner, 2) the joint sponsor has income and assets significantly exceeding the required minimum and 3) the joint sponsor does not need to use the value of his home or business.   We can use the value of the home and business to provide additional support, but I think that immigration will be doubtful that a joint sponsor will sell their home or business in order to keep the immigrant off welfare.

One thing that I always do at this point — because it has been requested by immigration a number of times — is to include a letter from the joint sponsor stating why he is sponsoring and how he is committed to fulfilling the responsibilities of being a sponsor.   The main point of the letter is to show the close relationship between the joint sponsor and the immigrant and/or sponsor.   It usually talks about how often they see the immigrant and/or sponsor and why they feel so strongly about making this commitment.

How important is this now that we have a new President?   I don’t know.   The Department of State (embassies and consulates) was requesting this type of evidence after President Trump was elected and before the new rules went into effect (I felt that they were using a backdoor to apply these rules before they were rules).   Currently, since July 2020, the Department of State was forbidden by a court order to apply these new rules — but how they will follow the court’s order is unclear — especially in view of the fact that they were sort of applying the rules before they were rules.   Also, of course, will President Biden direct them to return to pre-Trump practices or will it just sort of be left to each consulate how they will adjudicate these Affidavits of Support.

Likewise, things are just as unclear with the USCIS.   President Trump introduced these new requirements and made them regulations.   There were court orders forbidding the USCIS to implement the new rules, but they have all been overturned.  So officially, President Trump’s new rules are the law at the USCIS.  However, so far, in my clients’ interviews I have seen no evidence that the USCIS is really doing anything different from what they were doing before — but I still need to prepare to satisfy the new rules because you never know when an officer might decide to be strict regarding the new rules.  Again, President Biden might officially change the rules, but that could take a while, and as of today, he has not changed these rules.

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