I do. Now What? Marriage-Based Sponsorship for the U.S. Citizen–Foreign National Couple

Marriage to a U.S. citizen is one of the most common pathways to U.S. residency and citizenship for foreign nationals. However, it is not as easy as just being married to a U.S. citizen. Many U.S. citizen–foreign national couples do not properly plan their marriage-based immigration pursuits, whether it is a U.S. citizen who wants his fiancée to enter the country with a matter of weeks, or the couple who marry abroad and realize it will take several months before the foreign national spouse obtains a visa to enter the U.S.

Devising an immigration strategy, and planning early in advance, should be a top priority for U.S. citizen–foreign national couples pursuing marriage plans. Some important considerations include the date and place of marriage, whether the couple wants to live together or apart after marriage, and potential travel restrictions.  

Generally speaking, there are several options for U.S. citizens seeking to bring their foreign national fiancées or spouses into the U.S. (or to keep them in the U.S.):

·       K-1 visa: U.S. citizen files a fiancé(e) petition with the U.S. Department of Homeland Security for the foreign national fiancé(e); the U.S. consulate abroad is notified when the petition is approved and issues the K-1 visa to the fiancé(e); foreign national fiancé(e) must enter the U.S. during the 180 day validity period of the K-1 visa; the couple must marry within 90 days of the fiancé(e)’s entry into the U.S. and then file for the fiancé(e)’s lawful permanent residence (“green card”)

·       I-130/Consular Processing: U.S. citizen files an immediate relative petition with the U.S. Department of Homeland Security for the foreign national spouse; the U.S. consulate abroad is notified when the petition is approved and the spouse completes immigrant visa processing with the consulate abroad; foreign national spouse must enter the U.S. during the 180 day validity period of the immigrant visa; the spouse enters the U.S. as an immigrant (“green card” holder)

·       I-130/I-485: If the foreign national spouse is in the U.S. (and entered the U.S. legally), the couple files an immediate relative petition together with an application to “adjust status” (“green card” application) with the U.S. Department of Homeland Security; must be cautious if the spouse enters as a visitor (e.g., B1/B2 or Visa Waiver Program) because the spouse must have “visiting intent” (not “immigrating intent”) upon entry; must also be aware that the spouse may not leave the U.S. during case processing without first applying for permission to travel  

 It is important to note that for marriages less than 2-years old at the time of approval, the foreign national spouse will receive “conditional” permanent resident status, or a 2-year “green card.” The foreign national spouse must file a petition before the 2-year expiration of the conditional green card, requesting the removal of conditions by showing the marriage was entered into in “good faith” and not for immigration purposes.   

 For more information on marriage-based sponsorship, please contact our office.

Provisional Unlawful Presence Waivers of Inadmissibility

On March 30, 2012, the Obama administration announced an immigration provisional waiver process that would benefit undocumented family members of U.S. citizens. The process will be implemented on March 4, 2013, and will affect thousands of individuals in the United States who seek to resolve their immigration status.

The waiver process applies to individuals who entered the United States without inspection, who are “immediate relatives” (parents, spouses, and children under the age of 21 and unmarried) of U.S. citizens. Generally, these individuals are not eligible to apply for Permanent Residence (“green cards”) while in the United States because of their undocumented entries and unlawful presence in the country.

Under the existing waiver process, immediate relatives must depart the United States to appear for an immigrant visa interview at a U.S. consulate abroad, where they face lengthy processing times and uncertainty about whether a waiver will be granted. Many immediate relatives are reluctant to depart the United States, thus triggering a 3- or 10- year bar from returning to the country, to seek an immigrant visa and waiver abroad. Unless the waiver application is granted, the individual cannot return to the United States until the 3- or 10- year bar is fulfilled.

The benefit of the new provisional waiver process is that eligible immediate relatives may apply for a waiver prior to departing the United States. The applicant must still travel abroad to obtain an immigrant visa after the waiver is granted; however, the consulate may issue the visa without further delay. This process will avoid lengthy separations from family and curtail safety concerns for those abroad. 

To qualify for the provisional waiver process, an applicant must satisfy the following criteria:

·       The applicant is an immediate relative of a U.S. citizen

·       The applicant is the beneficiary of an approved immediate relative petition

·       The applicant paid an immigrant visa processing fee

·       The applicant is physically present in the United States to file the application and attend biometrics

·       The applicant’s immigrant visa interview is not scheduled prior to January 3, 2013

·       The applicant establishes that the denial of the waiver would result in “extreme hardship” to his/her U.S. citizen spouse or parent

·       The sole ground of inadmissibility is unlawful presence (e.g., no criminal inadmissibility)

·       If in removal proceedings, proceedings must be administratively closed and/or terminated at the time of filing the waiver application

U.S. Citizenship and Immigration Services will begin accepting applications on March 4, 2013. The filing fees remain the same as the existing waiver fees, and no fee waivers will be permitted. If you have a pending immigrant visa case at the National Visa Center, the agency must be notified after processing fees are paid and before the waiver application is filed so that an immigrant visa interview appointment is not scheduled until the waiver application has been processed.

If you believe that you may be eligible for the provisional waiver process, or would like assistance with a waiver application, please contact our office.

ImmBrief: Provisional Waiver Rule Announced!

On January 2, 2013, USCIS released the final version of the so-called "provisional waiver" rule.  The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver from within the United States.  The individual seeking the waiver will still need to attend an immigrant visa interview in their countries of origin to complete the immigrant visa process.  The final rule will take on March 4, 2013.

Full analysis and commentary to come.  If you are thinking of pursuing an immigrant visa abroad for yourself or a family member, contact an immigration attorney to discuss how this rule can help. 

Living in the United States as an Undocumented Person

Illegal. Undocumented. Without papers. It doesn’t matter what you call it, it is difficult when you are living in constant fear of deportation from the place you call home. The unfortunate reality seems to be that this fear is not going away any time soon, but that doesn’t mean that you are powerless to control your destiny. There are many things that you can do to ease the uncertainty of your future.
1. Know Your Rights. Several organizations have put together comprehensive presentations outlining the rights of individuals who are faced with questioning by immigration officers and many organizations host Know Your Rights seminars at churches and community organizations. 2. Talk to an Attorney. If you are undocumented, it helps to know what your options would be if you were to be taken into immigration custody. Therefore, I encourage all undocumented persons to set up an in-person meeting with a competent immigration attorney to review your situation. You may have a pay for such a consultation (typically between $0 and $250 depending on the depth of the review), but it is worth it. Not only will it give you a clear idea of your options so that you can formulate a contingency plan, but it will allow you to start building a relationship with an attorney who may be able to help you if you are ever detained. After your meeting, check back with the attorney once per year to find out if there have been any changes to the law. 3. Gather Your Documents. Even if you choose not to meet with an attorney, you should gather all of your important documents and put them in a single, secure, safe location. Typically, the following types of documents or information will be helpful to someone trying to help you:

    Your Identity Documents. Include your birth certificate with English translation, your original passport, and copies of any photo identification (expired or otherwise) you possess.

    Identity Documents for Immediate Relatives. Include your marriage certificate, birth certificates for your spouse, children and parents, and proof of citizenship for any US citizen relatives.

    Names and Telephone Numbers of Friends, Family, and Co-workers. Many people keep this information in their cell phone these days. In a custody situation, your phone will often be stored with your personal property, making the information in it difficult to access for people trying to help you. Therefore, I highly suggest that you keep a written list of people who may be able to help you with money, character letters, or anything else you may need if you are arrested.

    Evidence of Your Current Address. I encourage everyone to keep copies of their current bills and statements.

    Evidence of Your Time in the United States. Gather things like old pay stubs, old mail, or anything that has your name and a date so that you can prove you were in the US on a given date.

    Evidence of Property or Assets in the United States. Include items such as the title to your car, the deed for your house, and bank statements.

    Income Tax Filings.  Gather proof that you have properly paid and filed your income taxes. 

    Information Relating to Prior Arrests or Criminal Charges.  If you have ever been arrested, obtain copies of the police report (or ticket) from the police department and the register of actions from the court that handled your case.

     Any Other Information You Believe is Important.  Do you or your family members have a medical condition?  Do you contribute or volunteer in the community in any way?  Are you enrolled in school or taking ESL classes?  Think of things that you would like an immigration judge to know about you if you were asking for a bond and include documentation about these things.

    Names of Attorneys.  Put together a list of two or three attorneys that you trust so that whoever is helping you can contact an attorney that you know can represent your interests.

4. Tell Someone About Your Plan. Tell a trusted friend or family member where to find your important documents and who they should contact in case you are arrested.

5. Set Aside Money. You will need money to pay attorney fees, filing fees, and possibly a bind if placed into removal proceedings. Set aside a rainy day fund in case the need arises.

Confronting the possibility of immigration detention can ease your present fears and make any future problems easier to deal with.

If you would like to schedule a consult with an experienced immigration attorney about your options if you are detained, contact our office. 

The Elusive “Commuter Green Card

U.S. Permanent Residents (“green card” holders) must generally maintain a permanent residence in the United States, and consider the United States their “home” country. Permanent Residents may freely travel abroad for short-term purposes, but must maintain home country ties to the United States, or risk abandoning their resident status.

“Commuter green card holder” (“commuters”) are the exception to the general rule. These individuals are Permanent Residents who commute regularly to work in the United States who reside in Canada or Mexico. “Commuter” status allows these individuals to live in Canada or Mexico, while working in the United States, without risking abandoning their resident status. The Code of Federal Regulations at 8 CFR §211.5 delineates the criteria for alien commuters.

Commuter status is only available for immigrants living in Canada or Mexico, and does not apply to immigrants living or commuting from a third country. An individual may request commuter status while pursuing the immigrant visa process through a U.S. consulate.

Those individuals who have already been granted permanent resident status may change their permanent resident status to commuter status by filing an Application to Replace Permanent Resident Card (form I-90).

Once granted commuter status, the individual will receive a commuter card, which is similar in appearance to the permanent resident card, but contains the code “C2” for commuter. Every six months, the commuter must appear at a port-of-entry to complete a form I-178, and provide proof of both continuous employment in the United States, and residence in Canada or Mexico. In order to maintain status, the commuter must prove employment in the United States for at least 90 days per year. Extended unemployment may lead to a loss of commuter status.

The “commuter green card” is an elusive concept, and it may be overlooked as a viable option for Canadians and Mexicans who seek to pursue employment or business in the United States, while residing in Canada or Mexico.   

For more information regarding commuter status, please contact our office.    

The Immigrants' Guide to the Polls in Michigan: Prohibitions Against Voting for Non-citizens

For all non-citizens including green card holders, non-immigrant visa holders, and undocumented individuals, voting is strictly off limits. The overwhelming majority of non-citizens understand this fact and stay away from the polls on election day.   

But, it is important to note that non-citizens are also prohibited from registering to vote in federal and Michigan elections. The Michigan Secretary of State estimates that approximately 4,000 non-citizens are currently registered in Michigan, although very few (if any) non-citizens actually voted in any election. 

In Michigan, most individuals register to vote at a Secretary of State Branch Office while renewing their driver’s license or license plate.  Usually the clerk will ask if you would like to register to vote.  If asked this question, simply say “no, thank you.”  You do not have to give the clerk any explanation, just say, “no, thanks” and they shouldn’t give you the application to register.

Saying “no” won’t guarantee that you won’t end up with an application to vote in front of you. A clerk can easily make a mistake and give someone an application to register to vote that they didn’t ask for.  Therefore, it is important to pay attention to everything you are asked to sign.  Do not sign anything if you don’t know what the document says or what it will be used for. 

Registering to vote or voting before you are a citizen can have serious immigration consequences, even if you did not intend to register or were misinformed about your voting rights.  If you believe you have accidentally registered to vote or voted, contact an immigration attorney immediately so that they can properly advise you on how to best address the issue.

The Immigrants' Guide to the Polls in Michigan, Part 1: What to Expect as a New Voter

As the presidential election draws closer, voting is on the minds of many people living in the United States.  For many foreign-born individuals, voting can be confusing and sometimes intimidating.  As with anything, knowing your rights when it comes to voting can make the process a little less so.

It is important to understand that if you are a citizen of the United States, you have the right to vote if you want to.  It does not matter if you are a citizen by birth, acquisition, or naturalization, you are permitted to vote in federal and Michigan elections.  If this is your first time voting in an election, this guide will outline the voting process to ensure that your first Election Day goes smoothly:

1.  Register to vote.  You may register online, through the mail, or at any Michigan Secretary of State branch office.  In Michigan, you had to register by October 6, 2012 in order to be eligible to vote in the November 6, 2012 election.  If you missed the deadline, register to vote now anyway so that you can be sure you are registered to vote in time for future elections.

2.  Allocate adequate time to vote. The polls are open from 7:00 AM to 8:00 PM.    Polls tend to be the busiest in the mornings as people vote before going to work.  Michigan voters can expect a lengthy ballot this year, so plan accordingly. You can review your sample ballot on the Michigan Secretary of State's online Voter Information Center, which may make things a little quicker in the voting booth.

3.  Go to the right polling place. You must vote at the polling location you are assigned to.  This is determined by where you are registered. Shortly after registering to vote, you should have received a Voter Registration Card in the mail, which lists the name and address of the polling place you are assigned to. If you did not receive a Voter Registration Card or you have lost it, don't worry; you can still vote without it. You can locate your polling place by visiting the Michigan Secreary of State Voter Information Center.

4.  Check-in at the polling location and get your ballot. When you arrive, a poll worker will ask for you identification.  They will check your identification and find your name on the list of registered voters.  If you do have photo identification, you may still vote if you sign an affidavit stating that you do not have photo identification with you.  You cannot be denied a ballot because you do not have identification with you.

If the poll worker says that you are not on the registered voter list, don't worry, you are still entitled to cast a ballot.  Iyou have your Voter Registration Card, show it to the poll worker and make sure you are in the right polling place.  You may also politely ask the poll worker to check the spelling of your name and look again.  If you there is commonly confusion about your name, such as you have a hyphenated last name, two last names, or your last name is frequently confused with your first name, you may explain this to the poll worker and make sure they are looking in the right place for your name.  If you are sure that you are in the right polling location but the poll worker still can't find your name on the list, you may request be allowed to swear and oath about your belief that you are registered so that you can receive a provisional ballow.  If you are confused or need help, as a poll worker to direct you to a poll watcher, who may be able to help you.

This election season, there has been a great deal of controversy  about asking Michigan voters to affirm their United State citizenship prior to receiving a ballot. During the August primaries, some voters were asked to affirm their citizenship while others were not. Recently, a judge ruled that voters should not be required to affirm their citizenship prior to receiving a ballot, so you should not be asked this question.

However, the judge's ruling does not guarantee that you will not encounter a poll worker who is misinformed. If you are asked to affirm your citizenship verbally or show proof of your citizenship, do not be intimidated. You may answer the questions necessary to establish your eligibility under oath, and once you have answered the questions truthfully, you are entitled to a regular ballot to cast your vote. In Michigan, you may be asked for photo identification; however, you should never be asked for proof of citizenship or denied a ballot because you do not have identification.  If asked, do not be intimidated.  Insist that you be allowed to vote on a regular ballot.

5.  Vote.  Once the poll worker has found your name on the list of registered voters, the poll worker will assign you a ballot by writing your ballot number next to your name.   The poll worker will then give you a ballot inside a folder with only a numbered tab sticking out so that it is visible.  The poll worker will direct you to a voting booth.  Once in the booth, follow the posted instructions to complete your ballot.  If you make a mistake, you may ask for a new ballot.  As previously noted, the Michigan ballot is expected to be lengthy for 2012, so it may be wise to review a sample ballot before going to the polls.

6.  Make sure your vote counts.  Once you are done, place your ballot inside the privacy folder and take it to the ballot counter.  A poll worker will remove the number from the top of your ballot (this will make your ballot anonymous but allow them to track who voted in the election).  The poll worker will instruct you to feed your ballot into an electronic vote counter.  Watch the counter on the tabulator to ensure your ballot is accepted by the vote counter.  If it is rejected, ask for a new ballot.

7.  Report any problems.  If you feel intimidated or harassed at the polls,  tell a poll worker.  If a poll worker is the cause of your concern, report the issue to your local clerk, or the Michigan Bureau of Elections. 

For more information on your rights on Election Day, visit the Michigan American Civil Liberties Union website and review their "Know Your Voting Rights Card," which can be printed out to take with you on Election Day.

DREAMers Update: USCIS Approves Nearly 4,600 Requests for Deferred Action

On August 15, 2012, U.S. Citizenship and Immigration Services (USCIS) initiated a program for individuals commonly known as “DREAMers” to request Deferred Action for Childhood Arrivals (“DACA”). This program temporarily halts deportation for qualifying DREAMers and allows them to apply for work authorization. To qualify for DACA, an applicant must have arrived to the United States before the age of 16, be under the age of 31, have lived in the United States for the past five years, be enrolled in school or have a high school diploma, and pose no safety threat to the United States.

According to USCIS, nearly 4,600 DACA requests have been approved. The statistics represents a period from August 15, 2012 until October 10, 2012. Since the application start date, approximately 180,000 applicants have submitted requests for this program.

 The latest statistics show a sharp increase in the number of applications accepted since the first month of the program when only 29 requests were approved, and a just over 82,000 applications accepted for processing. According to the Migration Policy Institute, an estimated 1.7 million undocumented immigrants nationwide could be eligible for this program.

 Although USCIS started notifying applicants of decisions on their requests, the anticipated processing time is expected to average between four and six months.

The question remains whether DREAMers will still benefit from DACA if there is a change in administration following the November 6^th presidential elections. While Governor Mitt Romney indicated he would keep some DACA initiatives in place if he becomes president, including allowing those already approved for DACA to benefit from the program’s protection, it is unclear whether pending or new applicants will benefits from the program.   

If you believe you qualify for DACA, or would like assistance with a DACA request, please contact our office.

MI SOS says no driver's licenses for DACA beneficiaries

On October 11, 2012, the Michigan Immigrant Rights Coalition (MIRC) sent a Policy Update stating the Michigan Secretary of State will not issue driver's licenses or state identification cards to those who receive authorization under the Deferred Action for Childhood Arrivals (DACA) program. According to the Policy Update, the Michigan Secretary of State pointed to language in the Michigan driver’s license statute referencing the alien’s “legal presence in the United States.” The Michigan Secretary of State’s announcement dealt a difficult blow to Michiganders seeking the protection under the DACA program, many of whom had hoped that DACA protection would allow them to lead a normal life. It is especially painful in light of the decisions of other states to issue driver's licenses to DACA beneficiaries.
The decision also presents a number of legal issues. The most notable of which is that the concept “legal presence” as appears in the Michigan statute does not have a direct counterpart in the federal immigration statute. Instead, the federal immigration statute refers to the two distinct concepts of having “status” in the United States and being “unlawfully present” in the United States.

A PhD student could write an entire dissertation on these two concepts, but I am going to cut straight to the heart of my personal issue with how the law is being interpreted here. The most logical argument is that “legal” presence is the opposite of “unlawful” presence. In other words, one should be considered to be legally present under Michigan law as long as they are not considered unlawfully present under the federal law. The USCIS written statements regarding DACA clearly indicate that DACA beneficiaries are not considered unlawfully present for the period of deferred action.

Now, one can argue that the Michigan statute refers to the narrower concept of having “status” in the United States. The federally issued statements regarding DACA do state that DACA beneficiaries are not considered “in status” for the purposes of immigration law. Historically, Michigan has not taken the status approach when deciding who is entitled to a driver’s license. For example, there are many aliens who are in removal proceedings, who do not have status, but who can receive work authorization based on the applications for relief that they have submitted to the government. It has been my experience such individuals are routinely given a driver’s license upon presentation of their valid, unexpired Employment Authorization Document and a valid Social Security number.

Thus, it seems that the Michigan Secretary of State has embarked on its own adventure in legal reasoning when it comes to interpreting the law. Given this has led an interpretation that simultaneously relies and shirks federal immigration law, I am hopeful that this interpretation will not last. With any luck, as more DACA beneficiaries come forward, the Michigan Secretary of State will be forced to alter its position, either voluntarily or as the result of litigation.