Archive for Permanent Resident (LPR)

J-1 Out-of-Status and Happily Pregnant

Posted in Adjustment of Status, Lawful Permanent Residence, Nonimmigrant Visas with tags , , , on July 22, 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.

This summer the Blog will be updated frequently with the popular question/answer feature, composed of actual and recent consultation questions taken from the Guru’s file and his answers.

Dear GuruImmigration,

I have a J1 visa for 3 more years but the contract i came for its already expired, its been 1 years after that.

I just got pregnant and our marriage plans are going to be much sooner now.

We dont have insurance now and im not working so we were thinking i could get insurance from him after marriage.

And if not maybe get all our papers done so we could go to my native country and i could give birth there.

We really dont know exactly what to do, any idea? Thanks a lot.

Answer:

First of all, congratulations for your pregnancy! If you were not on the J-1, then you could marry your US citizen fiancé (assuming he’s a US citizen), and adjust status to a green card while remaining here. Unfortunately, as you probably know (or should know), most J-1 visas have the two-year foreign residency requirement preventing them from applying for a green card until they go back and live in their country for at least two years. You would have to check the J-1 program that sponsored you and see if the requirement applies to you.

Assuming it does apply to you, you would have to apply for a waiver to waive this requirement. The waiver can be obtained through a few ways, including showing extreme hardship to your US citizen spouse and child if you were forced to live apart from them. It’s not easy to get, however, and realistically, usually only succeeds with help of an immigration lawyer. I recommend you consult with one.

As for your health insurance, as far as I know, a spouse is covered on his/her spouse’s health insurance if the premium is paid, regardless of their legal status in this country.

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.

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.

 

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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