Articles Posted in Family Visas

1215912_paper_chain_in_the_dark.jpgBefore the Child Status Protection Act was enacted in 2002, children who turned 21 while their permanent residence applications were pending were no longer considered children for immigration purposes and could no longer get a green card as an immediate relative. This circumstance is known as “aging out.” Foreign national children of U.S. citizen parents are eligible to obtain permanent residence (or green card) as an immediate relative. A child is defined by the Act as an unmarried person under age 21. Many people were aging out as a result of the huge backlogs and long processing times, and Congress enacted the CSPA in order to remedy this.

Thanks to the CSPA, once a U.S. citizen parent files a visa petition (Form I-130) on behalf of the child, the child’s age freezes for immigration purposes. Therefore, if the child becomes 21 while the petition is pending, the person is still considered to be a child and is still eligible for permanent residence. If a permanent resident parent becomes a naturalized U.S. citizen, the child’s age freezes on that date. For a child with a pending application for permanent residence based upon a preference classification, the CSPA allows the time the application was pending to be subtracted from the child’s biological age.
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snapshot3.pngWhen a foreign national (FN) begins the immigration process, his or her case will be assigned what is called a priority date. This date is generally the calendar day Citizenship and Immigration Services received the original immigration petition–and represents the FN’s place in his or her line. In both case types, employment-based (EB) and family-sponsored (F), there are several legal avenues or methods an FN can use in an immigration petition. These legal avenues are formally known as “preference categories.”

For the purpose of this explanation, it will be productive to say that in each of these categories, there are five “pathways” to receiving permanent residence (or “a green card”). The pathway used is determined by the nationality of the FN, and there is one for each of the four oversubscribed nationalities of India, China, Mexico, and the Philippines. The last one is for all other nationalities. If a nationality is oversubscribed, it is bumping against the annual universal per-country limit.

The metaphor of five pathways in each preference category (of both case types) is useful because it allows the further metaphor of “lines.” Some pathways aren’t used very often, so they don’t have lines to get through them, but popular pathways do. Thus, how long an FN must wait in line to use a preference category (to get a green card) depends on his or her national pathway. Each preference category has its own annual limit as well, so if an FN’s petition falls into a category that isn’t at its limit–and he or she isn’t of an oversubscribed nationality–the only waiting time will be how long it takes the government to consider the case. There would be no line in the pathway.

snapshot3.pngImmigration to the United States is a complex and lengthy process (for most). Sometimes, when this topic is discussed, a “line” to receive a green card is spoken of. Though simplistic, this characterization is not incorrect. The fates of most immigration cases are tied to the Visa Bulletin, which represents the closest thing to the idea of the immigration line. The Bulletin is a monthly publication of the U.S. State Department (DOS), and shortly after it is released, we publish an analysis of it at www.shihabimmigrationfirm.com/visa-bulletin.html. It is the result of several government agencies’ efforts to reconcile immigration demand with relevant laws and regulations. The way the Bulletin works is confusing for many (to say the least), and its results have made life a little more difficult for most that seek to live in the United States. It is our hope that these two articles will clear up some questions about how the Visa Bulletin works–and why waiting times are as long as they are.

Law dictates that 366,000 foreign nationals may receive permanent residence, otherwise referred to as receiving a green card, each year. This cap does not apply to those claiming an “immediate relative” relationship to a U.S. citizen or other uncapped exemption. The limit is split into 226,000 for family-sponsored (F) cases and 140,000 for employment-based (EB) ones. These limits are divided further based on the legal avenue one wishes to use in obtaining permanent residence. These legal avenues are numbered and called “preference categories,” with “first preference,” etc. Each preference category has its own limit, and when a lower numbered category (which denotes higher “preference”) doesn’t use all of its assigned green cards, the remaining ones fall to the next category. (If the bottom category doesn’t use all its green cards, they are offered to the first category, and so on.) On top of this, no more than 7% of them can be given to immigrants from any one country.

The implications of the 7% limit are subtle, but when one considers that two countries (India and China) together contain over a third of the world’s population, its effect is clear. People from those countries aren’t going to have smooth sailing in U.S. immigration. There are four nationalities of immigrant consistently up against this limit (or are considered “oversubscribed”): China, India, Mexico, and the Philippines. Some immigrants from those countries have been waiting over 20 years for permanent residence, though one shouldn’t think that there’s a pre-ordained waiting period for these people. How long an immigrant waits pertains only, almost always, to how many other immigrants are attempting to obtain permanent residence from their home country–and how many are using the same preference category.

Thumbnail image for Thumbnail image for Thumbnail image for no-entry-sign-1295721-m.jpgDIN V. KERRY, requires the Government to allege a specific violation of law and must also allege specific illegal actions by the alien before denying a visa application and excluding the alien.

The case of Din v. Kerry from the Ninth Circuit (2013), recently accepted for review by the Supreme Court, provides relief for United States citizens who have received a denial of a petition for an alien relative due to alleged involvement with terrorism alleged under Section 212(a) of the Immigration and Nationality Act (“INA”), a section of the INA that lists a wide variety of conduct that renders an alien inadmissible due to “terrorist activities.”

The Appeals Court acknowledged that most visa decisions are not judicially reviewable. However, the Court “recognized a limited exception to the doctrine of consular nonreviewability.” Specifically, “when the denial of a visa implicates the constitutional rights of an American citizen, we exercise “a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason,” citing Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir.2008).

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Indian nationals currently living in India who wish to receive an immigrant or non-immigrant visa to travel to the United States typically must attend an interview at a U.S. Embassy or Consulate. These interviews are conducted in order to determine applicant’s eligibility to receive a visa prior to traveling to the United States. As such, being prepared to answer whatever questions are posed by the Immigration Officer in addition to presenting documentation to support any answers provided by the applicant are the keys to a successful interview.

Immigration Officers have indicated that they are typically more interested in what the applicants say over what is reported on the documents that are submitted in support of their applications. Despite this emphasis on applicant responses during the interview, it is essential that the applicant has documentation to support what is said during the interview to corroborate the statements made. Applicants should be completely prepared to answer any questions posed by an Immigration Officer in a clear and articulate manner and be able to put forth evidence to substantiate a claim.

General Interviewing Tips

In general, applicants must be able to confidently answer questions about why they are traveling to the United States, their intent to abide by the terms of the visa and their overall plans while in the United States. For nonimmigrant visas, Immigration Officers will likely ask questions that will evoke from the applicant any intent to permanently reside in the United States. If the Immigration Officer believes you intend to permanently remain in the United States, the nonimmigrant visa will be denied. For immigrant visa applicants, Immigration Officers will ask questions to verify the truthfulness of applicant statements.

Some questions asked by the Immigration Officer might be: “What are your ties to India” (social, economic, family)?”; “Why did you choose the particular university?”; and “How did you and your spouse meet?” In addition, Immigration Officers may pose hypothetical “what if” questions, such as: “What would you do if you won the lottery in the United States?” or even “What if a U.S. citizen proposes marriage to you?” Finally, applicants for work visas should be able to talk about the specifics of job duties in the United States. The applicant’s ability to clearly, confidently and consistently answer these types of questions will be the ultimate deciding factor in the approval or denial of a visa.

Although these questions might begin to feel uncomfortable and accusatorial, the U.S. Embassy and consular offices in India have indicated that they are working on making the interview process less adversarial in nature.
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file000537259480.jpgWhen making the decision whether to file for adjustment of status (AOS) in the United States or to get consular processing (CP) abroad, there are several factors to examine. The processing time to get an immigrant visa and the time to get adjustment of status can vary. Many foreign nationals are eager to finish the process as fast as possible. Employment-based immigrants may worry about getting laid off before their process has completed. Family-based immigrants may be anxious to ultimately reach naturalization and obtain US citizenship so that they may begin filing petitions for other family members.

Advantages of Adjustment of Status Continue reading

'Bet Giyorgis church, Lalibela, Ethiopia' by Giustino [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0/deed.en)], via Wikimedia CommonsInternational adoptions have decreased in frequency recently amid allegations of fraud. Americans seeking to adopt a child have looked in increasing numbers to several nations in the “developing” world, particularly Ethiopia and China. People do so for any number of reasons, often involving a desire to give a child a better life in the United States. The immigration process for bringing a child here from abroad for the purpose of adopting the child is cumbersome but relatively straightforward. It operates in parallel with adoption procedures in family court, which happen at the state level where the adoptive parent or parents reside. With a demand for adoptions in a foreign country, according to reports, unfortunately come efforts to ensure a supply. This can lead to questionable actions on the part of foreign adoption agencies or orphanages, including outright fraud or criminal activity.

The total number of orphans adopted internationally has reportedly dropped from a 2004 global high of around 45,000 to about 25,000 in 2011, according to the Associated Press. While some countries, such as Vietnam, have seen a steep decline in the total number of foreign adoptions, other countries like Ethiopia have seen an increase. More than four thousand children left Ethiopia via adoption in 2010, according to an investigative report in the Wall Street Journal. The United States leads the world in international adoptions, accounting for one-half of the total in 2004. Many countries began imposing restrictions on adoptions to combat fraud, and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention”) guards against abuse of the system. Ethiopia is not a signatory to the Hague Convention, however, and it offered an alternative for prospective adopters who did not want to wait the multiple years required by many countries.
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Culture in vitroA disconnect between modern technology and American immigration and nationality law has emerged in Israel, where an American citizen living in Tel Aviv has abandoned her efforts to obtain U.S. citizenship for her twin daughters. The U.S. Department of State denied her application because of a law that applies to children born to a U.S. citizen “out of wedlock.” The case illustrates the often chaotic set of laws that determining who may become a United States citizen by virtue of birth.

Ellie Lavi, a Chicago native, conceived her two-and-a-half year-old daughters through in vitro fertilization at a clinic in Israel, using both a donor sperm and egg. The clinic implanted her with the fertilized egg, and she carried the twins to term. She does not know who the donors are, and therefore she cannot prove if either of them are, or were, United States citizens. The State Department has therefore refused to grant U.S. citizenship to the twins, viewing the sperm and egg donors as the “parents.” Based on that perceived biological relationship, the twins have no legal link to the United States.
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447257_72132658_03242012.jpgA Houston, Texas man received excellent news on Thursday, March 8, 2012, when an immigration judge closed the deportation case pending against him. This means that the government will not attempt to return David Gonzalez to his native Costa Rica for the foreseeable future. This is a notable event because Gonzalez has a legal claim to be present in the United States based on his same-sex marriage to an American citizen. Although Gonzalez can remain in the U.S., he cannot obtain any specific immigration benefits and cannot obtain work authorization.

Gonzalez came to the United States from Costa Rica on a tourist visa in 2000. He overstayed his visa, and then met U.S. citizen Mario Ramirez several years later. The two were married in 2008 in California during the brief time when same-sex marriage was legal there.
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Thumbnail image for Thumbnail image for Syria.jpgProminent Immigration Lawyer Ghassan “Gus” Shihab, who is of Syrian origin himself applauds the US government for announcing that it will designate Syria for Temporary Protected Status. Because of the worsening security situation in Syria, the US Department of Homeland Security (“DHS”) stated on Friday March 23, 2012 that it will designate Syria for an 18 month TPS. The details as to how and when Citizens of Syria currently in the US can apply for this benefit will be announced in few days.

If you are a Syrian national presently in the US, such designation will allow you to remain in the United States legally, and to receive work authorization and travel privileges, so long as Syria continues to be renewed for TPS designation. The designation is not effective yet, but the US Citizenship & Immigration Service (“USCIS”) will host a public meeting to discuss the process and how and when applications will be accepted. The designation is expected to become effective this coming week. Attorney Gus Shihab of The Law Firm of Shihab & Associates will be attending this meeting and will post here on the latest developments.
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