Top 10 Reasons Why Immigrants Get Visas Denied

Posted in Grounds of Inadmissibility, Immigrant Visas, Lawful Permanent Residence, Removal (Deportation) Proceedings, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , on September 14, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

We thought it would be fascinating and instructive to analyze and compile a list of why people were denied their visa applications in trying to immigrate to the U.S. An immigrant with one of these reasons potentially lurking in the background could try to gauge their chances of success to some extent using this list.

Only 2008 statistics are included in the list. Also, it only includes people who tried to apply for immigrant visas last year, that is, to immigrate permanently to the U.S. In legalese, these reasons for denial are known as “grounds of inadmissibility” or “inadmissible grounds.” These grounds come into play at the last step of the immigration process: at the consulate interview in the immigrant’s home country, or at the USCIS office interview here in the U.S. before the immigrant receives permanent residence (green card). This is after all the years of waiting for the visa priority date to be current, after all the facts of the relationship have been proved to be true between the petitioner and beneficiary, after all the forms appear to have been correct….but then these grounds appear suddenly like thieves in the night to derail the immigrant visa application.

For each inadmissible ground, along with our comments, the list includes the total number of people denied last year, as well as the percentage who were denied. In other words, out of the total number of applicants faced with a certain ground of inadmissibility, such as for example, criminal convictions, some percentage of applicants was ultimately approved for their visas because they managed to receive some type of waiver.

The list is ranked by the total number of applicants denied, from the smallest to the largest. So, let’s begin…

No. 10 – Crime involving moral turpitude (CIMT)

Persons denied: 994 Denial rate: 83%

The bad CIMT. In immigration work, we lawyers hate to hear this acronym mentioned because it means the client’s case will be a hard case! A crime, such as DUI (driving under the influence) will not involve moral turpitude because it does not involve “baseness” or a “bad heart,” which is a rough definition of “moral turpitude.” But DUI with death or injury involved may involve moral turpitude, depending on the local DUI law involved and if there was at least recklessness on the part of the driver in causing the death or injury. Of course, it goes without saying that more serious crimes such as fraud, theft, rape, murder, and so forth are CIMTs. A conviction for a CIMT in an applicant’s past will make them inadmissible to the U.S. although a waiver is possible. However, the 83% denial rate shows that the waiver will be quite difficult to get.

No. 9 – Smugglers

Persons denied: 1,018 Denial rate: 92%

Just to be clear, this refers to alien smuggling, not contraband. And yes, there is a waiver available if the alien being smuggled was someone in the immigrant’s immediate family. The term “smuggling” makes it seem as though the immigrant committed a very serious act, but actually, it includes acts such as “encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” So, it’s not only hiding another person in the trunk of a car that can make you guilty of alien smuggling! Regardless, the 92% denial rate shows that U.S. immigration authorities strongly frown upon this.

No. 8 – Ordered removed upon arrival

Persons denied: 1,208 Denial rate: 84%

When a person arrives in the U.S. and is seeking admission at the airport or at the border, but because of certain ineligibilities is placed into removal proceedings and then ordered removed, they will be barred from being readmitted to the U.S. for 5 years. Yet last year there were more than 1,400 immigrants under this bar who tried to immigrate back to the U.S. sooner than 5 years, and as can be seen, 84% were denied. The 16% who overcame this bar presumably sought and received permission ahead of time from U.S. immigration authorities, while in their home countries, to apply for a visa before the 5-year period had expired. This group includes those who were ordered removed multiple times upon arrival (20-year bar) and those who were aggravated felons at the time of the removal upon arrival at U.S. shores (permanent bar).

No. 7 – Public charge

Persons denied: 1,664 Denial rate: 24%

A public charge is someone who cannot support themselves in the U.S. but must resort to the government to support them. Such a person cannot immigrate to the U.S. As can be seen, however, this reason for denial is the easiest to overcome with more than 3 out of 4 immigrants able to correct the problem when they were told by the consulate that there was a problem. In reality, the immigrant’s petitioner had to sign the Affidavit of Support form ahead of time to agree they would pledge their income and assets to support the immigrant. Even if the income is not enough, a joint sponsor’s income can be used to help out. Thus, it is quite easy to overcome the ground of being a public charge and for the immigrant visa to be approved as a result.

No. 6 – Drug abuser or addict

Persons denied: 2,457 Denial rate: 100%

Some things are just self-evident. The 100% denial rate for this is not a surprise. What is surprising is how many people actually tried to apply even though they were drug abusers or addicts.

No. 5 – Unlawfully present after previous immigration violations

Persons denied: 4,267 Denial rate: 100%

This category is an extremely harsh category to be caught under. It consists of immigrants who had been unlawfully present in prior times in the U.S. for a total period of more than 1 year, or who were ordered removed or deported, but then entered or tried to enter the U.S. illegally. At their consulate visa interview, when this negative immigration history is discovered, such a person cannot be admitted to the U.S. It’s a lifetime bar! However, the person could wait 10 years outside the U.S. then apply to immigration authorities for permission to reapply for admission to the U.S.

The 100% denial in this category, however, probably means that all or most of the applicants faced with this bar did not wait the required 10 years to apply for the permission above, and so simply could not be approved no matter what.

No. 4 – Misrepresentation

Persons denied: 4,765 Denial rate: 79%

This is the “When you lie, you fry” category. These were immigrants who had their visas denied due to being caught committing fraud or misrepresenting (lying) some fact in order to obtain the visa or even any previous visa or admission document. The relatively high denial rate shows that U.S. immigration authorities do not have a high tolerance for immigrants not being truthful on their applications. Still, 21% of them ended up overcoming this due to a waiver being available. The waiver is to show extreme hardship to a spouse, child or parent who is a U.S. citizen or legal permanent resident and thus, is quite similar to the waiver used for the very common 10-year bar, which is the next category.

No. 3 – Unlawfully present 365 days or more

Persons denied: 13,977 Denial rate: 46%

As can be observed, the total number of immigrants denied last year under this No. 3 category was almost 14,000 people, compared to only 4,765 denied under the previous category (misrepresentation). So, we have a huge jump going only from No. 4 to No. 3. This category is very common because, as we discussed it in detail in our other article, “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?”, so many immigrants have formerly accumulated unlawful or illegal presence in the U.S. of 365 days or more, that when they leave to try to apply for their permanent visa at the U.S. consulate in their country, they are confronted with the 10-year bar. And, as was shown in that article, this bar does have an extreme hardship waiver available for it, which surprisingly, had only a 46% denial rate last year, or more than half approval rate!

However, a lower percentage rate of denial does not necessarily mean that this waiver is easy to get. Obviously the statistics used to construct this list does not, and indeed, cannot tell us how many people who knew ahead of time they would be denied and did not bother to apply. For example, someone with a weak case might have obtained legal advice ahead of time from their immigration lawyer that applying for a visa would be a waste of time even if there is a waiver available in the law. Thus, it may be that for certain waivers such as this one, there were more applicants with stronger cases to begin with anyway, thus biasing the rate of success more toward approval. To obtain approval of this waiver, the immigrant has to leave behind their family in the U.S. and travel back to their home country and apply at the U.S. consulate. If the waiver is denied, which is almost half the time, they are stuck in their country unable to return to their family. Thus, we believe in looking at the statistics that probably only people who felt more confidently ahead of time that they have a strong hardship case would take this risk.

No. 2 – Labor certification

Persons denied: 17,561 Denial rate: 97%

A less well-known way of immigrating to the U.S. is through an employer petition. A U.S. employer can petition for an immigrant worker to take a permanent job position in the U.S. In order to qualify, however, the employer must file a labor certification application with the U.S. Department of Labor to certify that there are no willing, able, and qualified U.S. workers for the job position. Only if this labor certification is certified will the immigrant worker be approved a visa to immigrate. However, at the consulate interview, there are many reasons why the worker may be denied a visa, such as when the consulate officer believes the worker does not truly intend to work for the employer, or fraud in obtaining the labor certification, etc. This ground of denial is almost impossible to overcome as seen in the almost 100% rate of denial.

Finally, we come to the TOP REASON FOR VISA DENIAL, which is…:

No.1 – Application does not comply with provisions of law or regulations!

Persons denied: 87,843 Denial rate: 34.1%

Amazingly, for something that is #1, it is not a fancy reason to deny a visa! The Department of State does not break out in fine details what these consisted of, but they have to do with reasons such as the applicant not being eligible for the visa being sought, filing requirements not met, lack of required evidence, missing forms, missing information, etc. Pretty mundane reasons actually. That said, this category seems to also be a catch-all category containing reasons for denial that do not fit neatly into any of the main categories laid out in the Immigration and Nationality Act (INA).

This reason for denial (legally, section 221(g) of the INA) is relatively easy to overcome. This is understandable if the denial has to do with deficient application forms or missing evidence since those can be easily fixed by the applicant. A HUGE number of applicants were told initially they were in this category last year, more than 257,000, which easily dwarfs all the other nine categories combined. The lesson here is, make sure you are eligible for the visa ahead of time and your applications and documents in tip-top shape! Hiring a good immigration lawyer is obviously a good start toward this end.

So, those are the top 10 reasons for denial in terms of number. In terms of percentage, the ranking goes like this from the most difficult to overcome to the easiest:

1. Unlawfully present after previous immigration violations – 100% denial
2. Drug abuser or addict – 100%
3. Labor certification – 97%
4. Smugglers – 92%
5. Ordered removed upon arrival – 84%
6. Crime involving moral turpitude (CIMT) – 83%
7. Misrepresentation – 79%
8. Unlawfully present 365 days or more (10-year bar) – 46%
9. Application does not comply with provisions of law or regulations – 34.1%
10. Public charge – 24%

We hope you will never face any of these reasons for denial in your quest to immigrate to the U.S.!

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

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I-130 Approval Is Not Green Card!

Posted in Lawful Permanent Residence with tags , , , , , on August 30, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

The I-130 Petition for Alien Relative is probably the most common immigration form filed by people in the U.S. immigration system. A lot of people contact us right after the I-130 petition has just been approved. They’ve been waiting for years and happy. They want to know what they can do to claim their green cards right there and then!

Sorry, we have to tell them. The I-130 approval is a necessary first step for immigrants but does not necessarily entitle them to a green card right away, except for “immediate relatives.” The purpose of the I-130 petition is simply to classify the immigrant as a close relative of the person filing the form to put them into one of the recognized categories of U.S. immigration law. So, when U.S. Citizenship & Immigration Services (USCIS) approves the I-130, it is simply saying in effect: “OK, we find this immigrant is indeed your spouse/son/daughter/sibling as you claim.” That’s all. They’re not saying the immigrant got the green card. Not yet.

Family-Preference Categories

The five family-preference, or relative, categories are:

F1: unmarried sons and daughters 21 and over of U.S. citizens
F2A: spouses and children under 21 of legal permanent residents (green-card holders)
F2B: unmarried sons and daughters 21 and over of legal permanent residents
F3: married sons and daughters 21 and over of U.S. citizens
F4: brothers and sisters of U.S. citizens

In the above, “F” just stands for “Family.” The U.S. citizen or permanent resident filing the I-130 for his or her relative will be referred to as the “petitioner” and the relative(s) will be referred to as “beneficiary” or “beneficiaries.” From the categories listed above, yes, of course you are probably wondering, “What about spouses and children under 21 of U.S. citizens, shouldn’t they be listed somewhere?” The answer is, yes, but not in the five categories above. They are part of a separate and special category called “immediate relatives” that was mentioned. Whereas, the relatives in the categories above are in the “family-preference categories.” F1 has the highest preference and F4 has the lowest preference. Meaning there are generally more visas allocated each year to the higher preferences although every category has a limited number of visas allocated to it each year. Obviously, the F4 category is the slowest category because it has the lowest priority, i.e., the least number of visas available each year for it. Waits of 10 years or more is normal for F4.

Long Waits for I-130 Approval and for Visa Numbers

The problem is that an I-130 filed for a relative in one of these preference categories usually takes years just to be approved. Let’s call this Stage 1: from the time of filing the I-130 until its approval. For example, as of May 31, 2013 (latest data available), it’s taking about 3 1/2 years until approval for an I-130 in the F1 category at the California Service Center (CSC), and almost 1 1/2 years until approval at Vermont Service Center (VSC). For brothers and sisters (F4 category), it’s taking about 3 1/2 years until I-130 approval at CSC and almost 3 years at VSC. These are average processing times reported on the USCIS website; your own petition may be longer or faster. You’d think it’s normally not too difficult to prove that someone is your child or sibling, and you’d be correct, since usually USCIS only asks to see birth certificates (except for marriage cases because of the prevalence of fraud). Yet, they can take that long to get through Stage 1! It is thus not surprising that when they receive the I-130 approval notice from USCIS, the beneficiary and their petitioner feel such happiness that they believe the beneficiary’s green card has been approved or will be soon.

The truth is that, after getting through Stage 1, most of the times the beneficiary still has to endure another wait, sometimes very long. That wait is for a visa number to become available. Let’s call this Stage 2: from I-130 approval until a visa number is available. As mentioned, there are limited number of visas available each year in each category. It’s first-come first-served, so whoever got the I-130 filed for them first will be in line ahead of another person who was petitioned for at a later date. The date that USCIS receives the I-130 is called the “priority date.” This is the date that determines if there is a visa number in your category.

The U.S. Department of State publishes the Visa Bulletin each month which you can use to check what priority dates are current in your category. Once there, click on the link for the current month (or latest month). For example, the August 2013 Visa Bulletin, under the F1 category, shows the cut-off date of “01SEP06” for beneficiaries who are citizens of most countries (that is, not India, China, Mexico, or Philippines, who have their own columns in the Visa Bulletin table — Mexico and Philippines are notoriously slow since there is so much demand for visa numbers from those two countries). This means that currently as of mid-August 2013, only I-130 petitions filed for unmarried sons and daughters 21 and over of U.S. citizens before Sept. 1, 2006 have visa numbers available for most countries.

Example: As an example of the Stage 2 wait for visa number after the I-130 has been approved, let’s say you’re a U.S. citizen petitioning now for your unmarried daughter over 21 (F1 category) from Mexico, so the priority date is in August 2013. Currently, for the August 2013 Visa Bulletin, visa numbers are available in the F1 category for those Mexicans with I-130s filed on or before Sept. 1, 1993 (almost 20 years ago). So, even after the I-130 has been approved, which could take 3 1/2 years for F1 as seen above at California Service Center, your daughter still has to wait for about another 16 years before a visa number is available for her to immigrate. Or, let’s say you’re a U.S. citizen petitioning for your brother now from the Philippines. Looking at the same Bulletin, visa numbers are currently available in the F4 category for those Filipinos with I-130s filed on or before Jan. 8, 1990 (more than 23 years ago!). So, even after the I-130 has been approved, which could take about 3 years for F4 at CSC, your brother still has to wait about 20 more years for a visa number, or to get through Stage 2.

Looking up the Visa Bulletin can only give an estimate as to when a visa number will become available. It is impossible to give a precise answer as to how fast each category will move in the future, especially if your priority date is several years behind. For some months, the visa numbers can move very fast, but then they will slow down, barely moving at all. All one can say is, for example, right now, the August 2013 Visa Bulletin shows that in the F3 category (married sons and daughters of U.S. citizens), the priority cut-off date is 08DEC02″ for most countries, which means only those F3 petitions filed prior to Dec. 8, 2002 have visa numbers, for beneficiaries of most countries. If your priority date is in 2007, for example, then it may take five years, more or less, until there is a visa number available for you.

Note: Sometimes, USCIS takes so long to approve the I-130 due to whatever glitches or problems in the particular case that Stage 1 becomes much longer than it should, so that once the I-130 is approved, the Stage 2 wait for a visa number can be relatively short. In even rarer cases, on the date that a visa number becomes available for the beneficiary’s particular priority date, the I-130 is not even approved yet! That is, Stage 2 and Stage 1 are effectively reversed. In that case, the beneficiary still has to wait until the I-130 is finally approved before they could proceed to Stage 3.

Note: Sorry, but we cannot answer for free questions of the type, “I’m in so-and-so category, with I-130 petition filed on so-and-so date. How long do you think I have to wait?” This blog article was originally written to show people how to use the Visa Bulletin to look the information up themselves and to estimate how long the wait might be in their own cases. Hundreds of people have asked this question on the blog or emailed us when they can do this themselves. It is quite easy to do. As mentioned, using the Visa Bulletin will give you only an estimate of the wait. No one can predict precisely how quickly visa numbers will move in the next few years. Not even USCIS or us lawyers can tell you for sure.

No Benefits While Waiting for Visa Numbers to Be Available: During the wait until a visa number is available, or in Stage 2, the fact that a beneficiary has an I-130 filed for them does not mean that they get any immigration benefit because of that I-130. The same thing during Stage 1. If the person is here in the U.S. in unlawful status, they must take care not to be picked up by USCIS and put into removal (deportation) proceedings.

Also, people ask us this all the time but with only an approved I-130, the person does not get a temporary work permit if a visa number is not yet available. Neither will they get a driver’s license since the DMV will not issue a license unless the person has work authorization in the U.S. or proof of legal status. In other words, if you’re here illegally or you’re out-of-status on your visa, the I-130 by itself does not do anything to make you legal. This is just a false hope. It’s amazing how many of our clients were duped by notarios, non-lawyers, and even bad lawyers who told them otherwise about what the I-130 could do for them.

For example, some immigrants are under the mistaken impression (or given bad advice) that despite the long waits for visa numbers above, as soon as they have an I-130 filed for them and received by USCIS, or receive news of the I-130’s approval, that they can start filing for their green card or to be legal at that moment. There is no such thing. Be careful: filing such application or paperwork too early will, at best, leads to rejection of the application and loss of filing fees, and at worst, may result in removal proceedings if the immigrant is out-of-status or illegal in this country. Unless the immigrant is an immediate relative, there is no shortcut or going around Stage 2 before the next step for the green card can be taken.

What Happens Once Visa Numbers Are Available

However, after the wait when the priority date is finally “current,” meaning that a visa number is finally available, the beneficiary at that point can proceed to the final Stage 3: actually applying for permanent residence or green card status. This stage has three different possibilities:

a. If the beneficiary came to the U.S. originally with a visa or was inspected, is still in status and does not have serious grounds of inadmissibility, he or she can file for adjustment of status in this country, similar to the “easy” boyfriend or girlfriend scenario described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”

b. If the beneficiary came illegally or has been out-of-status (and not an immediate relative), then he or she must go back to the home country and apply at the U.S. consulate, with the 3- or 10-year bar being an obstacle (except for those out-of-status/illegal for 180 days or less), a difficult situation just like the boyfriend or girlfriend that was described in “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” There is also a category of those who came illegally or who have been out-of-status who can apply for adjustment of status here (and not have to apply in their home country), if they have had certain old petitions filed for them in the past.

c. On the other hand, if the beneficiary is outside the U.S., they will file the immigrant visa package with the U.S. consulate in their country, submit police background and medical checks, among other documents, and then be interviewed at the consulate to receive the immigrant visa (unless if they had spent more than 180 days illegally/out-of-status in the U.S. on a prior stay). With the immigrant visa in hand, they can be admitted to the U.S. as a legal permanent resident.

A very important benefit for these family-preference categories is that the spouse and children under 21 of the main beneficiary are also entitled to immigrate at the same time, and in the same order of priority as him or her when a visa number is available.

Good to Be Immediate Relatives

The exception or shortcut to all the long waiting described above is the category of “immediate relatives” mentioned. This is composed of three subcategories: (1) spouses of U.S. citizens, (2) children under 21 of U.S. citizens, and (3) parents of U.S. citizens when the citizen is at least 21. There are always visa numbers available for these people in unlimited numbers. So, they are highly preferred, or favored, in the U.S. immigration system, much more preferred than those in the five “family-preference categories” above. For an immediate relative, on the date the I-130 is filed, they can skip Stages 1 and 2 and go directly to Stage 3 if they qualify for adjustment of status in the U.S. to green card. If they’re outside the U.S., only Stage 1 (filing of I-130 until approval) has to be waited for, Stage 2 would be zero.

One major advantage for an immediate relative is that both the I-130 petition and the adjustment application are allowed to be filed concurrently, i.e., filed at the same time. Compare that with immigrants in the family-preference categories who must first wait for an I-130 to be approved (go through Stage 1), which could take years as described above, then wait for Stage 2 to complete, and finally proceed to Stage 3 for the adjustment application to green card.

So, to sum it up, if you are someone interested in immigrating to the U.S. and you are not an immediate relative, having a U.S. citizen or legal resident relative file the I-130 for you, despite the long wait for visa numbers, is still good future planning because it reserves your place in the line. We can assist you with filing the I-130 since approval can sometimes be difficult.

Copyright © 2009-2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

Can I Be Deported When I’m Not Even There in Court?

Posted in Removal (Deportation) Proceedings with tags , on August 25, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Dear GuruImmigration,

after my 130 and 485 was denied, i left the usa. that was last year. unfortunately, last week, my parents told me that i have received a ”notice to appear.” at their usa mailind address. I read online that I would be deported ”in absentia” by the Immigration Judge. what should i do please?

Answer:

Deported in absentia (now called “removal in absentia”) means that, yes, you indeed can be deported in your absence if you were present in the US and you fail to show up in Immigration Court for proceedings after being properly notified.  In your case, however, you cannot be ordered deported if you have already left the country.  An attorney would need to appear in court for you at the hearing set on the Notice to Appear, with proof of your non-presence in US, and move to dismiss.  It’s important that you do that, or else the government will assume that you’re still here and continue the deportation proceedings against you leading to an order of deportation in absentia.  That order of deportation (or removal) will be on your records for at least 10 years and will prevent you from being eligible to re-apply for any type of visa back to the US for that long.

If the Immigration Court is in Southern California, contact our office and we can represent you.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

Boyfriend got DUI hit-and-run and now deported

Posted in Removal (Deportation) Proceedings with tags , , on August 20, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Today we have a very interesting question from a young woman that illustrates that sometimes, loved ones and close friends are very concerned for the immigrant and want to help, but unfortunately are prevented from doing anything under the law.

By the way, these questions are unedited without fixes as to spelling or grammatical errors.

——

Dear GuruImmigration,

My boyfriend (we lived together but weren’t married) got a DUI, hit and run he was in jail
and got sent to Mexico on early January but not deported and he had a court date for early April. When he was trying to cross the border to come back in March 19 he was caught by the border patrol and they deported him for 5 years. He got send to Mexico when we had just had our first baby he was a week old. is there anything i can do? Can I apply to get him a legal residence card? I’m a legal resident. if i can howmuch would it cost? would i need to go get married?
THANK YOU for all your help

Answer:

Probably nothing can be done for years. First, boyfriends and girlfriends cannot do anything for each other. So, you would have to get married to him first. Second, lawyers who answer need to tell you upfront that with only a green card (i.e, you’re a legal permanent resident, not a US citizen), even if the deportation could be waived for your husband (when he becomes your husband), and you apply for him today as the spouse of a legal resident, he is stuck in Mexico until a visa number is available for a spouse of a legal resident. And when will that be? Well, currently they’re running about 4 years behind for Mexicans in that category. SeeWhat to Look for When Your Green-Card Holder Helps You Immigrate.”

If you apply for citizenship (at least 5 years after obtaining green card), then the wait won’t be 4 years. But, the waiver of deportation will be pretty difficult to get approved, especially since he has repeated illegal entries to the US AND he has a DUI hit-and-run on his records, which is very bad.

Few cases are impossible, but this is a pretty difficult case. Cases like this can sometimes be successful, but it will cost you a LOT of money in attorney’s fees because so many resources have to be thrown at it. And, frankly, in this economy, a lot of people are not willing to spend that money.

Best.

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

Student visa holder married green card holder, what can she do?

Posted in Lawful Permanent Residence, Nonimmigrant Visas with tags , , , , , on August 18, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

[The following paid consultation question is taken from the Guru’s past client files.]

Dear GuruImmigration,

My sister is a F1–name removed–currently maintaining status. She married a Green Card Holder (DV) in April 2009. They have not filed any petition yet as she wanted to continue studies as a F-1. They have been living together.

She is going to graduate in May 2010. Now she wants to file family petition and remain in the US with her husband.

(1) Do we file I-130, I-485, I-765, I-131 together at the same time?

(2) Can she remain in the US until there is a decision on her I-130 OR will she have to continue going to school?

Answer:

The husband is a legal permanent resident (LPR or green-card holder) and can only file an I-130 for your sister. The I-485 application to adjust status to permanent residence CANNOT and must not be filed together with the I-130 or it will be rejected because the husband only has a green card and not a U.S. citizen yet. The I-485 can ONLY be filed once a visa number is available for your sister as the wife of an LPR. That’s because the immigrant who marries an LPR has to proceed one step or stage at a time, and the first step that must be taken is filing the I-130 and wait until it is approved by U.S. Citizenship & Immigration Services (USCIS).

The I-130 is approved relatively fast but it does not grant your sister the right to file the I-485 until a visa number is available in her appropriate category of relatives. As the wife of an LPR, she is in the F2A category of relatives, which is running about 4 years behind in visa numbers, more or less. She’ll have to maintain lawful status in this country (continuing going to school, change to H-1B, E-1 visa, or whatever other nonimmigrant visa she qualifies for independently), while waiting in the 4 years or else she will jeopardize her chance of filing an I-485 in the future due to being out-of-status. Not until there is a visa number available for the F2A category will the I-485 finally allowed to be filed. And as stated, no visa numbers are available for a few years in that category if an I-130 is filed today. To understand this issue read the article “I-130 Approval Is Not Green Card!” as a whole, with particular attention to what we have called the “Stage 1” and “Stage 2” waits in that article.

So, in essence, marrying an LPR is less “advantageous” than marrying a U.S. citizen, because an immigrant who marries a citizen can file an I-130 together with the adjustment of status (the I-485) and work permit and all that quickly since there is no wait for a visa number. This is obviously the scenario described in our article “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?” However, if one is in love with an LPR, then that’s who one is in love with!

Also, many immigrants continually make the mistake of thinking that as soon as their LPR spouses file the I-130 for them, that they can stay in this country regardless if their nonimmigrant visa (the student visa in this case) is out-of-status. No! The I-130, even if it is approved, does NOT grant any right to a person to be in this country or to get a work permit or a driver’s license whatsoever. A person who is out-of-status on their nonimmigrant visa is subjected to removal (deportation) proceedings at any time. Whether they will actually be served papers to go to court for those proceedings is another story due to lack of resources on the part of Immigration & Customs Enforcement. But understand if a person is out-of-status, this could happen any time. Jan. 19, 2010 update: For example, see the comment of another reader whose brother overstayed a tourist visa for two years and thought he could continue to stay here until one day the police or immigration agents came to his house to put him into deportation.

The way to get out of this quandary is if the husband files for citizenship and gets approved in the meantime. That will reduce your sister’s wait and make things easier. Of course, saying that the husband could file for citizenship does not mean that it’s a done deal. He will have to wait until he’s been an LPR for 5 years, then go through the actual process of applying, and then he may or may not get approved, depending on his behavior and records since he became an LPR.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us: paidconsult@guruimmigration.com.

 

 

Nonimmigrant Visas and Why Maintaining Status in the U.S. Is Important

Posted in Adjustment of Status, Change of Status, Extension of Status, Lawful Permanent Residence, Nonimmigrant Visas with tags , , , , , , on August 14, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

Many people ask us what is a Nonimmigrant Visa? Isn’t everybody an immigrant to the United States? Well, no. Even though the media and everyday language tend to refer to everyone who comes to the U.S. as an “immigrant,” commonsense would dictate that that is not always the case. There are people who simply want to come here to visit for a while, or for another purpose such as going to school or work for a company for a period of time. For those people, the only way they can come to the U.S. legally is to be approved for a nonimmigrant visa at the U.S. consulate in their homeland.

These types of visas are always issued so that the person is allowed to stay for only a limited length of time in the U.S., never permanently. The period could be as short as a few months to as long as a few years, depending upon the purpose the person has in coming to the U.S. The problem is when people treat their nonimmigrant visa as a permanent visa. They begin to feel they can just stay here indefinitely. We actually get this quite often with clients who consult with us. Most of them of course know ahead of time they’re allowed to stay here for a limited length of time, yet many call us after their stay has expired because they assumed that an immigration lawyer would make everything alright. Well, usually we can help, but sometimes we cannot. After a person has overstayed, it is usually difficult to fix the problem or would be very costly to the client to fix, short of the client going back to their country.

Consequences of Overstaying Visa

What are the consequences of overstaying one’s nonimmigrant visa? First of all, you will not be allowed to extend status (get more time on your stay here), but must leave the U.S. and reapply for a new entry. Secondly, you’re not allowed to change status while in the U.S. to another nonimmigrant visa. Say you came here with a tourist visa to visit friends at an American college, but then decided you like the school so much you want to go there, too. You can apply to change status to a student visa if you do so before the end of your tourist stay (which on a tourist visa is usually 6 months). However, if you wait until after your stay has expired, you won’t be allowed to change status but must go back to your country and apply for a new student visa.

Or, say you’re here on a student visa pursuing a bachelor’s degree at an American university. Now, you’re graduating and have received a job offer at a U.S. high-tech company. You would need to obtain an H-1B visa in order to be allowed to work at your job. You can apply for change of status to H-1B if you do it prior to the end of the time allowed you as a student (usually 60 days after graduation or end of optional-practical-training work permit), but not after.

Another consequence of overstaying a nonimmigrant visa, which is very undesirable and can be disastrous, is the inability to adjust your status to permanent residence (not to be confused with “change of status” discussed above), as described below.

The worst consequence of overstaying is that an overstayer is subjected to removal (deportation) at any time. Whether they will actually be served papers to go to court for removal proceedings is another story (due to lack of resources on the part of Immigration & Customs Enforcement). But understand if a person is out-of-status, this could happen any time. Jan. 19, 2010 update: For example, see the comment of another reader whose brother overstayed a tourist visa for two years and thought he could continue to stay here, until one day the police or immigration agents came to his house to put him into deportation.

Extension & Change of Status

Extension of status or change of status (to another nonimmigrant visa type) while still in the U.S., when allowed, is obviously highly desirable since the person does not have to leave and reapply for a new entry or apply for the new type of visa at the U.S. consulate in that person’s country. He or she would apply with U.S. Citizenship & Immigration Services (USCIS) here and await a decision while remaining in the U.S. This obviously saves time, money, and hassle.

Sometimes a person overstayed their nonimmigrant visa through no fault of their own. In those unusual situations, the immigration law does have a provision to excuse the overstay and the person can still apply for change of status. However, it is not always easy to prove that it was no fault of one’s own. The assistance of an experienced immigration lawyer is usually necessary in those cases.

Of course, a person who overstayed their visa can leave the U.S. and reapply for the new visa at the U.S. consulate in their country. However, at the visa interview, their overstay will be discovered and the visa probably denied. Or, if they try to come back to the U.S. on the original visa, usually the overstay will be discovered by the immigration officer at the airport, and that visa will be canceled and the person denied entry. Ouch!

By the way, the length of validity, or when the nonimmigrant visa expires, as printed on the visa itself, has nothing to do with the actual length of stay permitted by the immigration officer when a person arrives in the U.S. For example, many B-1/B-2 tourist visas have a 10-year expiration printed on them. That is simply the length of time the same visa can be used to apply for entry at the airport. The tourist will not be allowed, as some people mistakenly believe, to visit and stay in the U.S. for ten years! The immigration officer will give him or her 6 months in most cases because that’s the maximum length of initial stay on a tourist visa (it can be extended by another 6 months maximum while still in the U.S.). The officer will give the tourist a little slip called the I-94 with the red-ink expiration date that’s stapled to a page inside the passport and stamped with the final day of stay. Some nonimmigrant visas, such as the F-1 student visa, will receive the I-94 with the “D/S” notation, meaning that they are allowed to stay for the “duration of status,” or until the end of their educational program or other activities.

A nonimmigrant visa is like a contract or agreement. If you break the promise of complying with the terms of the agreement (by overstaying), you are penalized under the agreement. Instead of contractual damages, however, you are penalized by not being allowed to extend or change status or to return quickly to the U.S.

Serious Consequence of Overstaying: No Adjustment of Status to Green Card

Many nonimmigrant visa holders eventually are petitioned for a green card by a close family member who is a U.S. citizen or legal permanent resident (LPR), or petitioned by a U.S. company for a green card while they’re in the U.S. The problem: unless they are being petitioned for as an immediate relative, overstaying by even one day will result in not being able to adjust to green-card status in the U.S., and they must go back to their own country for U.S. consulate processing. Most people, when they have a choice, would rather go through adjustment of status here rather than do consulate processing as it is obviously less costly and less time-consuming.

However, there is quite a large population of nonimmigrant visa holders who have overstayed by more than 180 days in the U.S. The problem is, even if they have an approved I-130 family petition and not classified as an immediate relative, as soon as they set foot outside the U.S. to go back to their homeland to apply (if they want a green card – there is no other way), the 3- or 10-year bar will kick in. As a result, they will not be approved by the consulate for the final visa to return to the U.S. for 3 or 10 years, unless they qualify for the extreme hardship waiver, which is not easy to get. This is a very risky situation. Only those non-immediate relatives who have I-130 petitions with priority dates (filed dates) on or before April 30, 2001 will be spared this return journey to their country and can adjust their status here.

Good News for Overstayers

The good news is that, as we described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, by marrying a U.S. citizen in a bona fide marriage, even an overstayer can remain here and adjust their status to green card. Indeed, being a spouse of a U.S. citizen is one type of immediate relatives mentioned above. Perhaps because that option is so readily available, many people don’t take being out-of-status on their nonimmigrant visas too seriously since they know in the back of their minds they could always marry a citizen in the future.

Of course, a true and bona fide boyfriend or girlfriend may not be available at a given time because one is not in love! If that’s the case, such a person may continue to live in the U.S. out-of-status, which is not easy at all since he or she won’t be able to obtain a work permit or social security number legally. A person here on an expired work visa, such as an H-1B, might have had a social security number issued previously when he or she was working in legal status, but once they become out-of-status, although the SSN might still exist the person cannot legally obtain work authorization. Thus, people who have been out-of-status for a long time eventually get tired of living “underground” like this and call us for help on a marriage case. At that time, we are of course happy to help and explain the options available, especially the potential risk of having a marriage that does not appear real. But for the most part, people are sincere and have a genuine citizen spouse willing to help them and the process to get the green card is smooth.

Copyright © 2009-2012 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?

Posted in Adjustment of Status, Immigrant Visas, Lawful Permanent Residence, Unlawful Presence Bar (3- or 10-yr bar) with tags , , , , , , on August 7, 2009 by GuruImmigration

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Note: The Law Offices of Larry L. Doan in Los Angeles, CA, provides the following blog article and other information on this site, including our responses to comments, for the purpose of legal information only; it is NOT legal advice nor does it create an attorney-client relationship.

In a previous post, “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”, we promised that we would discuss the hard, maybe extremely hard, marriage cases. Well, those are the ones in which the applicant came to this country illegally, the vast majority of times by crossing the border without inspection. There is a huge number of these folks living in the U.S., especially people from Mexico, El Salvador, Guatemala, and sometimes mainland China. That’s not a surprise since the U.S. southern border was and still is to some extent relatively easy to cross without inspection.

It usually comes as a shock when we tell these people that even though they are married to a U.S. citizen, they still must go back to their homeland to obtain final approval to return permanently to this country, unless they had a previous immigrant petition filed for them by April 30, 2001. However, most people simply don’t have the benefit of having a previous petition filed for them, so the green card cannot be approved while they are in the U.S. For example, Mexicans in this situation would have to travel to the U.S. Consulate in Juarez, Mexico, which is just across the border from El Paso, Texas, to be interviewed and obtain approval, a process called “consular processing.”

Just across the border from Texas? No problem, let’s book a ticket…

But wait, not so fast! The problem is, these people had been living in the U.S. illegally for many years prior to departing for their homeland. If at least a year illegally, which is common, then the immigration law imposes a harsh 10-year bar against these people from getting their cases approved if they are now in their country trying to apply to return, even if they have a U.S. citizen spouse and children waiting back in the U.S.! This is perhaps even a bigger shock to people. If more than 180 days to less than a year illegally then they face a 3-year bar from returning, which is still too long.

Note: These bars apply not only to people who came to the U.S. illegally and then leave the U.S. (to apply overseas with or without full knowledge of these bars), but also to those who have been out-of-status on their visas (came legally) and then leave the U.S. before getting a green card (the departure is the key, if no departure then no bar). Also, we get asked all the time whether a child “brought” here by his or her parent “unwillingly” is considered to come here illegally. The answer is yes, there’s no excuse! If the child crossed the border without inspection (illegally) with his or her parents or other people, the child will have the 3- or 10-year bar be an obstacle now, unless he or she leaves the U.S. by the time they turn 18 1/2 and is trying to apply from overseas.

We’ve seen many people made this journey without adequate prior information and legal advice, and now they’re stuck in their country without a way of returning to the U.S. except by entering illegally again. Juarez, Mexico, is used here as an example only. If a person came here illegally from a country much further from the U.S., the journey back to the homeland and then being stuck there because of the bar is a scary prospect! Only if they had been illegal in the U.S. for 180 days or less will there be no bar, but not too many people fall into that category. Also, time living illegally in the U.S. while under 18 does not count.

These bars were put into the law by Congress in 1996. Since then, many of us in the immigration law community have been pushing Congress to get rid of them. We may have some success with the new Obama Administration in the next four years. Meantime, the same law that added these bars does provide a way of overcoming them, and that is through what’s known as the “extreme hardship” waiver. Basically, the applicant has to prove to the immigration officer that the denial of their case (which means no visa issued to enter the U.S.) would result in extreme hardship to his or her spouse or a parent, if the spouse or parent happens to be a U.S. citizen or legal resident.

Extreme hardship is not an easy standard to meet. It is not merely the claim that you will be separated from your spouse and family in the U.S. because every one of these cases involves separation. It is something more, encompassing emotional, psychological, financial, and material hardship that the family will suffer. Documents and evidence must be submitted to demonstrate these hardships. For a realistic chance for the waiver to succeed, all the evidence should be marshaled and put together by an immigration attorney experienced in this type of matter. Otherwise, it will be too easy for the consular officer to deny the waiver.

To make it clear, the 3- and 10-year bars do not take effect if the person never leaves the U.S. However, if they remain here, they cannot become legalized under current law if they are not immediate relatives. There is no way to get their papers here! People continue to ask us if there is a way but no, there is absolutely no way to do it while remaining in the U.S., we cannot do magic if it’s not within current law. It’s the person’s choice, of course, to go or to stay. Going will lead to possible approval by the consulate overseas for permanent residence at a considerable risk, while staying will lead to the same old same old of being illegal in the U.S. and not having any papers. It’s really almost a Catch-22 situation for immigrants.

2013 update:  For certain applicants who are immediate relatives and who are already in the U.S., a new “provisional waiver” has been available since March 4, 2013, where the applicant can apply for the waiver here rather than being forced to apply only in their home country.  Thus, the Catch-22 situation is eliminated for these applicants.  However, the applicant has to have a spouse or parent who’s a US citizen or has a green card in order to qualify for this provisional waiver.

When you search the internet for information on green card through marriage, be careful of sites that discuss how the immigrant spouse can file for “adjustment of status,” “adjustment,” or “Form I-485” without even mentioning these bars. “Adjustment of status” is the process of filing for the green card here in the U.S. without having to leave. It simply is not possible if the immigrant came illegally and is now relying on a petition filed after April 30, 2001!

The only exception for the immigrant spouse who came illegally to the U.S. is if he or she had a previous immigrant petition filed for them prior to or on April 30, 2001. This could have been a family I-130 petition filed for them by a relative or former relative who was a U.S. citizen or legal resident, or even a labor certification or employment petition filed for them by an employer offering a permanent job. If that is the case, the good news is that the person does NOT have to travel to the U.S. consulate to get their green card but can adjust their status here. This is the famous 245i law that many immigrants have heard about. They would fall into the “easy” cases described in our previous article. An extra $1,000 penalty is necessary in addition to regular filing fees, but that’s a whole lot better than having to leave the U.S. and be confronted with the 3- or 10-year bar!

Update: A lot of people married to US citizens (or planning to marry) have sent us comments and questions after reading this article, who arrived in the U.S. with a visa or otherwise inspected upon entry, and are worried now that they have been out-of-status for so long. Please note that the article you just read is not applicable to you but to those who crossed the border illegally. Your situation is described in the previous article “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?” As explained there, even if you have been out-of-status for many years, that violation is forgiven if your citizen spouse is going to petition for you for the green card. The 10-year bar will not apply to you unless you make the mistake of leaving the U.S. for whatever reason before receiving the green card.

Copyright © 2009-2013 Law Offices of Larry L. Doan

Any action you take or rely upon after reading the information on this blog is your own responsibility and the Law Offices of Larry L. Doan bears no responsibility or connection to such action. For an analysis of your detailed and specific questions related to your individual immigration situation or problem, there is no substitute for a “live” meeting with an attorney. This can only be done during a paid consultation between the Law Offices of Larry L. Doan and you.  To get started with a consultation, please contact us:  paidconsult@guruimmigration.com.

 

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