Archive for I-130

Not Sure to Marry My Fiancee Before or After Naturalization. Help!

Posted in Extension of Status, Naturalization, Nonimmigrant Visas with tags , , , , on August 13, 2014 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.]

I am a permanent resident and am going to apply for a US citizenship within a week. My fiancee from Mexico and I are talking about our marriage this year. But I wonder whether we should get married before or after I convert my nationality to a US citizen. Is it better to get married before my naturalization? She came here with a B1/B2 visa with I-94 four months ago and has to renew her I-94 every 6 months to stay in California.  I’ve sent you separately details about my naturalization case.

Answer:

First of all, someone with a B-1/B-2 tourist visa can only request one extension to stay here for an additional six months, it’s not something to renew every six months (a person simply can’t be a tourist for years and years in the US).  Also, your fiancee must have good reasons why she wants to stay here longer as a tourist before the extension will be granted.  As long as she files for extension before the date her current stay expires on her I-94 (which should be in about two months), she will be allowed to stay here pending a decision on the extension.  Since you’re here in the Los Angeles area, it’s currently taking California Service Center about 2 ½ months on average to reach a decision.

As far as timing of the marriage, you can do it before or after your naturalization has been approved based on the information you’ve shared.  It should be after her tourist extension application (Form I-539) has been filed, to prevent USCIS from denying the extension on the grounds that she has a husband who has a green card and so she’ll likely have immigrant intent to stay permanently in the US.  If you do that and file an I-130 for your wife immediately, still before your naturalization case is approved, there will be no visa number available for a few years for her because the I-130 will be under the F2A category, which has only a limited number of visas each year.  Filing the I-130 for her will only be a preliminary step; she still would have to wait a few years before being eligible for a green card.  That would be the situation if you don’t become a citizen quickly enough.  However, as soon as you become a citizen, the I-130 is automatically converted to that for an immediate relative and she’ll be able to file for green card right away if she’s still in the US.  From what you sent me before, your naturalization case (Form N-400) will probably be approved within about five months from now here in L.A. since it looks pretty routine.  You don’t seem to have difficult issues such as criminal arrests or convictions, or other issues that could drag the case out for more than the expected time until approval.  So, yes, under these circumstances, you can marry after her own I-539 is filed and file an I-130 for her because five months from now, it appears fairly certain you will become a US citizen (Note:  this is an average time as currently being reported by USCIS, each case may take slightly longer or shorter).

You also asked what if for some reason your citizenship is delayed and takes a lot longer to be approved, say a year and half from now.  In that case, your wife, even after receiving an extension of her tourist status for six months, may be running up against the end of her allowed stay while your own case is still waiting for a decision.  However, she could stay here and even be out of status and wait for a favorable decision on your case, then file for green card.  Is there a risk for her being out of status?  Yes, but there’s only a slight risk since immigration officials are not likely, during current immigration climate, to send notice of deportation proceedings to her for being only a short time out of status.

You can, of course, delay the marriage until after your naturalization is approved.  That would seem to be about five months from now, as stated above, if your case is smooth.  But even if it’s not smooth, and takes a year and half to get approved, and assuming she will even be out of status, you could still marry her after your naturalization has been approved, and she’ll be able to get her green card here.

Best,

Larry L. Doan, Esq.

GuruImmigration

Copyright © 2014 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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How Do I Get a Work Permit?

Posted in work permit with tags , , , , , on December 26, 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 work permit, or employment authorization document, is a document issued by U.S. Citizenship & Immigration Services (USCIS), usually with a validity of one year, and renewable.  It allows the holder to legally work at any job, and it is also the document needed to get a social security number and a driver’s license.  So, how and when can an immigrant get one?

At the outset, it must be stated that:  a work permit is not something that is applied for as an end in itself, but only as an incidental, or side, benefit accompanying a main immigration application that results in the benefit of permanent residence, and only when the immigrant initially appears to qualify to apply for that main application. Sometimes, a potential client will ask us, “I don’t have any immigration papers but I just want to apply for a work permit. Can you help me?” We’d have to politely explain to this person that there is no such thing as “just applying” for a work permit. You must first see if you qualify for some larger main immigration benefit and apply for that benefit before you could get a temporary work permit.

Most immigrants receive a work permit shortly after their main application for “adjustment of status” to permanent residence is filed with USCIS.  This is the application that will allow an immigrant already in the U.S. to receive the benefit of permanent residence (green card).  However, not every intending immigrant in the U.S. qualifies to file for adjustment of status.  There are requirements of who can and when. At the time of filing the adjustment application, the immigrant will either be in-status on some kind of temporary nonimmigrant visa, or out-of-status on that visa or illegal but qualifies under immigration rules to file for adjustment.  Since the adjustment application will take four months to a year or more for USCIS to schedule an interview and to decide the case, the person is given the side benefit of a work permit so that they can work and take care of themselves in this country while the adjustment application is pending.  The law recognizes in this kind of situation that the immigrant must be given a means to legally work and not just sit there doing nothing.  Therefore, a separate application for the work permit, the I-765, is filed with USCIS at the same time the main adjustment of status application is filed.

The work permit card is then usually mailed to the immigrant about a month and half to three months after the applications are filed.  This card can be taken to the Social Security Administration office to apply for a new social security number and to the local DMV to apply for a driver’s license. If the adjustment application is ultimately denied — there are numerous grounds on which the immigrant may be denied, or is “inadmissible” to the U.S. — the work permit will also be terminated.  If the adjustment application is ultimately approved, then the person’s status becomes a permanent resident or green-card holder, and there will be no need for employment authorization since a green-card holder is entitled to live and work permanently in the U.S.

We stated above regarding the main immigration-benefit application that the immigrant must “initially appear to qualify to apply for that main application.”  What this means is that, for example, with an adjustment application, the immigrant must upon initial review appear to qualify to file for adjustment of status.  Examples?  Well, someone who is still waiting in what we call Stage 2 (has an approved I-130 or I-140 petition, but who is still waiting for a visa number because their priority date is not current yet), is not qualified to file for adjustment yet.  Or, someone who is not classified as an immediate relative, but whose visa is out of status, generally will not qualify to file for adjustment. There are other examples.  A person like this who applies for adjustment of status will have the application quickly rejected after USCIS personnel has done an initial review of the application package, and so no work permit is given.

So, to obtain a work permit, you must be at the point where you are now qualified to file for some type of application resulting in permanent residence.  U.S. immigration law provides many methods for immigrants to receive a green card since there are so many types of immigrants and circumstances (although as a practical matter only a handful of methods are used for the vast majority of immigrants). Some intending immigrants simply do not qualify under any method for a green card due to their being either out of status on their visa, being illegal in this country, or simply do not have enough time or have the right relationship to qualify. We routinely consult with people who, unfortunately leave the consultation with no solution under current law. Such a person cannot get a work permit.

Many immigrants whom we have helped are familiar with receiving their work permits not through the adjustment of status application but through a political asylum application. Political asylum is another type of immigration application eventually leading to permanent residence which gives a work permit as a side benefit. A grant of the asylum application will allow the person to remain (and work) permanently in the U.S. and then apply for permanent residence a year afterward. Under the law, a work permit must be given to the asylum applicant within 90 days. Thus, it was and still is a fast way to obtain a work permit in this country: to just apply for political asylum even if the person came to the U.S. illegally. However, asylum requires that the person must have experienced and does fear genuine persecution in their homeland due to their race, religion, nationality, political opinion, or being a member of a distinctive social group, and the persecution is a genuine verifiable reality in that country. People from countries that are stable or peaceful do not normally qualify for asylum. Yet, many people, such as from Mexico (a country in which the government is not persecuting its citizens for the most part), have been deceived in the past by unscrupulous immigration services, “notarios,” and sometimes lawyers, who promised they could obtain work permits quickly for them, but who did not tell these people that they were applying for political asylum on their behalf. Since the asylum application can take years to be decided by USCIS – sometimes 10 years – the applicant gets a renewed work permit every year and thinks that their immigration status in this country must be legal. Eventually, at the asylum interview, however, these people inevitably cannot prove their asylum case as described in their own asylum applications (many did not even read before signing what was in their applications), and so their asylum case is denied. USCIS then puts these people into removal (deportation) proceedings without exception.

There are other less well-known types of immigration applications for certain groups of immigrants, such as NACARA, TPS, cancellation of removal, application for deferred action, etc., that also allow the applicant to receive a work permit as a side benefit. Some of these, such as TPS (temporary protected status) and deferred action, in fact, do not necessarily lead to permanent residence for the applicant but do involve giving him or her a longer term of stay in the U.S. that does not end on a definite date in the immediate future. These applications are more specialized and are beyond the scope of this article.

It must also be pointed out that there are certain people here on nonimmigrant visas who do work for U.S. companies.  For example, H-1, or L-1 visa holders.  However, the difference between these people and someone with a work permit is that the person with the work permit can work for any employer and can change to a new job anytime, whereas the person with the H-1 or L-1 visa can only work for that particular employer who petitioned for them on their nonimmigrant visa.  If the visa-holder wishes to work for another employer, they have to go through the process of finding a new employer to file a new petition for them in that visa category.

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.

Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

Posted in Immigrant Visas, Lawful Permanent Residence, Naturalization, Removal (Deportation) Proceedings, Voluntary Departure, work permit with tags , , , , , , , , , on September 24, 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 have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

Hi Guru,
I came to USA on a tourist Visa in 1994 July. Got married to a green-card holder then in 1997 October. My husband applied I-130 for me in October 1997 and it was approved. I went with a friend of mine to the immigration in 1998 and I was inquiring for employment authorization and that’s where I was caught. I was released couple of hours later and reported to them every month. Appeared before the judge in Sept. 1998 and granted voluntary departure. The judge gave me 120 days which will expire on December 31, 1998. I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time I had to leave USA on 30th December 1998. I did not overstay the 120 days given by the judge.

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

I went back to Malaysia and remained there since January 1st 1999. In May 1999 my husband became us citizen and he applied for immigrant visa for me and I had the interview on May 2000 and was denied because of overstay and it was a 10 year bar. I appealed and was rejected the I-601. The 10 year bar starts from the day I left USA. I left on 30th December 1998 and i have already completed the 10 year which is 30th December 2008.

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

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-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.

 

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.

 

 

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