Articles Posted in Spouses & Fiancés

Last Tuesday, the United States House of Representatives passed a legislation that would bar potential immigrants from Iraq, Syria, Iran and Sudan, or those who have visited those countries in the last five years, from entering the United States without a visa. The bill, which passed 407 to 19, also completely changed the visa program for people from those respective countries, as it placed restrictions on would-be visa waiver participants.

Now, congressmen and senators are looking at possibly changing the K-1 visa program by making it even more difficult for applicants in what is said to already be an extensive vetting process. This comes in reaction to the attacks on Paris in November and especially the shooting in San Bernardino, California, as FBI Director James Comey said the woman suspected of participating in the shooting was “radicalized” before she applied for her K-1 visa to come to the U.S.

Congress has acted quickly, as it often does, with the subject of national security is on the table. But the idea of making the vetting process rigorous could prove easier said than done, unless they continue the trend of barring people from the aforementioned countries. It is going to be difficult for congress to come up with a law that covers all of the bases given the ambiguity that always comes with these sorts of cases.

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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).

1392509_rainbow_flag.jpgEver since the Supreme Court ruled last month that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, same-sex married couples have been eligible to apply for green cards based upon marriage to a US citizen or US permanent resident of the same-sex. The US Citizenship and Immigration Services (USCIS) has just issued an announcement clarifying the rules that it uses to adjudicate same-sex marriage based cases. The announcement seems to indicate that virtually every area of immigration law, the USCIS will treat same-sex marriages exactly the same as opposite-sex marriages.

Green cards are now available for same-sex spouses of US citizens and US permanent residents Continue reading

Scales-thumb-320x288.jpgThe US Court of Appeals fixed a serious problem in the K-1 visa law that has been a very nasty trap for unwary foreign national fiancés of US citizens and their children. This decision is legal precedent for the seventh federal district: Illinois, Indiana, and Wisconsin. This decision is not binding on the rest of the country, but courts in other states may find this decision persuasive.

When a US citizen marries a foreign national outside of the US, the K-3 visa allows the foreign national spouse to come to the United States to live together with the US citizen spouse while the green card application is pending. The foreign national spouse can bring his or her children to the US with the K-4 visa, and the children can get a green card as step-children of the US citizen.
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829079_wedding-ring.jpgWill the Obama administration allow same-sex married spouses to get green cards based on marriage to a US citizen or resident? All signs point to yes. The US Supreme Court made headlines last Wednesday when it struck down the Defense of Marriage Act (DOMA) and granted same-sex married couples access to the same benefits that opposite-sex married couples enjoy. Given Obama’s original campaign promise to uphold DOMA, there may have been some doubt as to how the Obama administration would actually administer the change. But same-sex couples can now breathe a sigh of relief thanks to the administration’s currently announced public stance.

DOMA, which was enacted in 1996 and signed into law by President Bill Clinton, has since been the obstacle that has prevented same-sex married couples from getting federal benefits that are available to opposite-sex married couples. This includes immigration benefits as well because DOMA is the reason why same-sex foreign nationals have been banned from getting green cards based upon marriage to a US citizen or permanent resident.
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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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1206728_21045799_03192012.jpgThe Violence Against Women Act of 1994 (VAWA) is a federal law that provides for additional resources for the investigation and prosecution of violent crimes committed against women, including immigration provisions protecting people who may lack legal status but also need protection from an abusive spouse, parent, or child. After two renewals of the law in 2000 and 2005, it is up for reauthorization again in 2012.

Several Democratic Senators brought VAWA up for renewal again on Thursday, March 15, in the midst of an already-charged political climate. With debates over issues like insurance coverage of contraception dominating the news in recent weeks, this is either a very opportune time to bring up this issue, or a very bad time. It is important to note, however, that VAWA offers important protections to immigrants who may have a valid claim to a green card or visa, but who cannot obtain one because of a bad domestic situation.
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224884_5022_02202012.jpgA gay couple on Long Island learned last month that they have achieved a victory, albeit a temporary one, in their struggle to keep one of them in the United States legally. After several New York politicians spoke on the couple’s behalf, United States Citizenship and Immigration Services (USCIS) granted a reprieve to Tim Smulian, a 65 year-old citizen of South Africa, so that he may stay and care for his husband, 70 year-old New York native Edwin Blesch.

Smulian and Blesch were married in South Africa in 1999. Their marriage is legally recognized by both the state of New York and Suffolk County, where they reside. Federal law, under the Defense of Marriage Act (DOMA), does not recognize their marriage. Smulian is in the United States on a tourist visa, which he must renew annually. Since 1999, he and Blesch have spent six months in the U.S. and six months abroad. Blesch is suffering from HIV, and he suffered a series of mini-strokes a few years ago, along with other complications from his illness. He is therefore no longer able to travel with Smulian. Smulian is trained to care for HIV patients and is Blesch’s primary caregiver.
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dreamstime_21176[1].JPGPresident Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. “If election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country,” Obama said.
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Mexican Family.jpgMany spouses and children of U.S. citizens qualify for legal immigration status, but are required to file the application overseas at their country of origin because they are unlawfully present in the U.S., also called “entering without inspection.” If they were unlawfully present in the U.S. for more than 180 days, and then they go overseas, there is a law that bars them from reentering the U.S. for 3 years. This bar increases to 10 years if the illegal stay is longer than one year. This creates a catch-22 because if they leave the U.S. to apply for legal immigration status, they will be unable to reenter for 3 to 10 years. So, rather than go overseas to apply for legal status, many simply remain unlawfully in the U.S. to avoid being separated from their family for several years.

Many people who would be subject to the 3 or 10 year bar may be eligible for certain hardship waivers to allow them to return to the US after they apply for legal status overseas despite the 3 and 10 year bar. But critics say this process is lengthy and flawed. They are required to remain overseas until the waiver is granted before they can reenter the U.S., which is a process that can take from months to years, and there is no guarantee that the waiver will be granted. Therefore, many do not risk going overseas to apply for the waiver.
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