The post USCIS changes policy on approval of visa petitions for widow(er)s appeared first on Law Office of Geri N. Kahn.
]]>
A few days ago, USCIS released a new policy memo on the approval of visa petitions for widows/widowers. The new policy allows a spouse of a deceased petitioner to continue with the immigration process even if the surviving spouse has remarried. (Under prior interpretation of the law, a surviving spouse could not immigrate if he or she remarried after the death of the petitioner.)
The reason for the new policy is due to a decision in a case called Williams V. Secretary, US Dept. of Homeland Security, 471 F.3d 1228 (11th Cir. 2014). In Williams, a foreign born spouse, Raquel Pascoal, married a U.S. Citizen, Derek Williams, and he filed a Form I-130 (Petition for Alien Relative) on her behalf. Mr. Williams died before USCIS adjudicated the petition. Ms. Pascoal then filed a Form I-160, Petition for a Widow(er). USCIS denied that petition because she had not been married to Mr. Williams for two years. (At that time the law required that a marriage must have had lasted two years.) She then remarried and divorced a short time thereafter. Upon her divorce, she sought to reopen the relative petition that Mr. Williams had filed on her behalf, but USCIS denied that as well indicating that she was prevented from reopening the I-130 because she had remarried.
The Court held that the statute did not prevent Ms. Pascoal from doing exactly as she planned on doing – she could seek to reopen her prior immigrant visa petition despite her remarriage. USCIS has now decided to adopt Williams as policy in all cases in the United States.
The new policy plays out like this:
If the U.S. Citizen spouse filed a petition for alien relative (Form I-130) before the U.S. Citizen spouse died and the surviving spouse has not remarried:
The I-130 will automatically convert into a Form I-160, petition for a widow(er). The surviving spouse can seek to immigrate as a widow(er).
If the U.S. Citizen spouse filed a petition for alien relative (Form I-130) before the U.S. Citizen spouse died and the surviving spouse has remarried:
The I-130 will remain an I-130. The surviving spouse may continue with the immigration process provided that he or she was residing and still resides in the United States at the time the petitioner died.
In either situation, it does not matter whether USCIS had approved the petition prior to the petitioner’s death. Nevertheless, a petition may still be denied on the merits if it would have been subject to denial if the petitioner had not died.
The policy memo does not change the law for widow(er)s of U.S. Citizens who are in the United States on K-1 visas. As long as the K-1 married the U.S. Citizen within 90 days of admission, the K-1 (and any children on K-2 visas) may continue the immigration process by applying for adjustment of status. It is not necessary for the widow(er) to file a Form I-360, just as it would not have been necessary to file a new Form I-130, had the petitioner not died. For non-immigrants on K-3 or K-4 visas (foreign citizen spouse and children of U.S. Citizens), their Forms I-130 would convert into Forms I-160 and they would continue the immigration process as widow(er)s and children of widow(er)s.
It is important to note that the policy of permitting widow(er)s to immigrate on a petition even if they have remarried only applies to those surviving spouses who were married to U.S. Citizens. It does not apply to spouses who were married to lawful permanent residents.
The post USCIS changes policy on approval of visa petitions for widow(er)s appeared first on Law Office of Geri N. Kahn.
]]>The post How do I bring my brother or sister permanently to the United States? appeared first on Law Office of Geri N. Kahn.
]]>
I am writing the second of a multi-part series of posts on how to bring family relatives to the United States permanently. The first post I wrote provided general information on bringing family relatives to the United States. (See my post, “Can I petition for my relative to immigrate to the United States?“) This post will focus on how to petition for your brother or sister to come to the United States permanently.
In order to petition for your brother or sister you must file form I-130, Petition for Alien Relative with United States and Citizenship Services (“USCIS”) along with proof that you are a United States Citizen and that you are related to your brother or sister. I will discuss the steps you must take in more detail below.
Obtain Form I-130
Download I-130. At the same time that you obtain the form, you should go to the USCIS website and print out the instructions to the form. They are more detailed than the instructions I will provide in this post and provide the mailing address to where you will need to send the form.
Proof of U.S. Citizenship
You may prove that you are a U.S. citizen by sending one of the following documents to USCIS with your petition:
- A copy of your birth certificate (if you were born in the United States) issued by a civil registrar, vital statistics office, or other civil authority.
- A copy of your naturalization certificate or certificate of citizenship issued by USCIS or the former INS.
- A copy of your Form FS-240, Report of Birth Abroad of a Citizen of the United States, issued by a U.S. embassy or consulate.
- A copy of your unexpired U.S. passport. OR
- An original letter from a U.S. consular officer verifying that you are a U.S. citizen with a valid passport.
Proof of your relationship to your brother or sister
In order to prove that you and your brother or sister is related, you must submit a copy of your birth certificate and a copy of your sibling’s birth certificate showing that you have at least one common parent.
If you and your sibling share the same father but different mothers, you also need to submit the marriage certificates of your father to each mother as well as proof of termination of prior marriages of either your father or each mother.
If you or your sibling was adopted, you must submit the adoption decree showing that the adoption took place before the child turned 16.
Finally, if you or your sibling is related through a step-parent relationship, you must submit your parents’ marriage certificate showing that the marriage by which you claim your relationship to your sibling took place before the child turned 18.
Also you need to submit documentation proving that your parents’ prior marriages were terminated and you also need to submit the step-child’s birth certificate.
As a general rule, do not submit any original document to USCIS. Submit only copies. Any document not in English must be translated into English. The document need not be notarized but does need to be certified by a translator indicating that the translation is true and correct.
The filing fee for the petition is currently $420.00. As the fees do change, you should check the USCIS website and verity that the fee is correct.
You must mail the complete packet to one of the addresses listed in the instructions to the form. The location to where you send it depends upon where you live.
I recommend that you make a copy of your entire packet and send the packet certified mail, return receipt requested. By sending it this way, you will have verification that it has been received.
You should be aware that there is a very long wait to bring a brother or sister to the United States. The long wait is due to our quota system for immigration. Because of the number of visas allotted for brothers or sisters is so low, it currently takes a minimum of eleven years before your brother or sister will be able to come to the United States. It is even worse if your sibling is from Mexico or the Philippines. It is worth filing the petition because you want to reserve your spot in line but if your sibling has another way of immigrating, you may wish to pursue that method while you waiting in line for this visa petition to become current.
The post How do I bring my brother or sister permanently to the United States? appeared first on Law Office of Geri N. Kahn.
]]>The post Can I petition for my relative to immigrate to the United States? appeared first on Law Office of Geri N. Kahn.
]]>Legal Status
If you are a citizen of the United States, you may petition for your parent, spouse, child, unmarried adult son or daughter, and brother or sister.
If you are a lawful permanent resident of the United States, you may petition for your spouse, child and unmarried son or daughter.
It is not possible to petition for any other kind of family relative such as grandparents, grand-children, cousins, aunts or uncles. Similarly, the only persons who may petition are citizens and lawful permanent residents. Non-immigrants may not petition for relatives to immigrate permanently.
In order to start the process, a “petition for alien relative” is filed with USCIS on Form I-130. In general, the petitioner files it with proof of legal status and proof of the relationship. I will discuss the type of proof that needs to be filed with petitions in a later post.
Crimes that make a petitioner ineligible to file
A petitioner is prohibited from petitioning for a relative if he or she has been convicted of “any specified offense against a minor” unless the Secretary of Homeland Security determines in his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. The list of offenses include:
- An offense (unless committed by a parent or guardian) involving kidnapping;
- An offense (unless committed by a parent or guardian) involving false imprisonment;
- Solicitation to engage in sexual conduct;
- Use in a sexual performance;
- Solicitation to practice prostitution;
- Video voyeurism as described in section 1801 of Title 18, United States Code;
- Possession, production, or distribution of child pornography;
- Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
- Any conduct that by its nature is a sex offense against a minor.
If a petitioner has been convicted of one of these offenses he or she may not only be prohibited from filing for a child but is also prohibited from filing for any other family relative normally allowed under our law. USCIS knows if a petitioner has been convicted of one of these crimes because it conducts an IBIS check on all petitioners after the petition has been received. IBIS stands for Interagency Border Inspection System Name Check. It is a compilation of data bases from various law enforcement agencies. If a there is a “hit” on this system, USCIS will ask the petitioner to submit additional documentation to verify whether or not he has been convicted of such an offense. Even with a conviction, the petitioner may still be able to bring his relative if he or she can show that he or she poses no risk to the beneficiary of the petition.In order to prove this, an adjudicator will consider the following factors:
- The nature and severity of the petitioner’s specified offense(s) against a minor, including all facts and circumstances underlying the offense(s);
- The petitioner’s criminal history;
- The nature, severity, and mitigating circumstances of any arrest(s), conviction(s), or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary;
- The relationship of the petitioner to the principal beneficiary and any derivative beneficiary;
- The age and, if relevant, the gender of the beneficiary;
- Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.
If you would like more information on what you need to prove in such a situation, USCIS has published two memos. The first is called (for short) Guidance under the Adam Walsh Act. The second is called (for short) Supplemental Guidance under the Adam Walsh Act.
Due to the seriousness of the offense and the risks at stake, I would advise anyone in this situation to contact an Immigration lawyer for assistance.
The post Can I petition for my relative to immigrate to the United States? appeared first on Law Office of Geri N. Kahn.
]]>The post Does USCIS conduct a credit check if I want to sponsor my spouse for a green card? appeared first on Law Office of Geri N. Kahn.
]]>
I recently received the question at my Benicia office as to whether USCIS (United States Citizenship and Immigration Services) conducts a credit check of a sponsor when they petition for a spouse. The answer is, “no,” they do not. However, this does not let you off the hook financially. A petitioner/sponsor sill must file an affidavit of support to show the government that the immigrating spouse will not become a public charge. In other words, the sponsor will be promising the government that the immigrating spouse will not be applying for means-tested benefits (i.e, Food Stamps), because the sponsor has sufficient income. This is not the same as a credit check but the sponsor will have to prove that he or she has income or assets over 125% of the Poverty Guidelines. The sponsor will have to provide proof of income such as a copy of his or her federal income tax return from the past year. Thus, while USCIS does not perform a credit check, your income is still checked.
if you are sponsoring your spouse, you will have to provide proof to USCIS of your good faith marriage. Such proof is typically documentation showing co-mingled financial assets. If you do not provide proof of joint finances perhaps because you do not wish to comingle them or you do not want to affect your partner’s credit, you do not have to submit them, but then you should expect USCIS to question you as to why you are not submitting them. You should plan on presenting more of other types of evidence so that USCIS understands you have a valid marriage.
Thus, while you do not have worry about your credit history when sponsoring your spouse, It is not a bad idea to make sure, to the extent that you are able, that your credit is okay. You will need to provide proof to USCIS of joint cohabitation such as a lease agreement or utility bills. Sometimes landlords and utility companies run credit checks. So, while it is not USCIS that is running the credit check, another entity may be and you will need the documentation from that agency to prove your case.
There is another check that USCIS performs that does not relate to credit. USCIS conducts a name/bio-data check of the Petitioner. The purpose of this check is to make sure that the Petitioner does not have a conviction for one of the crimes under the Adam Walsh Act, ie., to make sure the Petitioner is not a registered sex offender.
Assuming you are not a sex offender, you should still be able to successfully petition for your spouse even if your credit is not the best.
The post Does USCIS conduct a credit check if I want to sponsor my spouse for a green card? appeared first on Law Office of Geri N. Kahn.
]]>