Green Card & Visa News » Citizen

Eligibe Widows Must File Self Petition by October 28, 2011

Tushar Mathur — Mon, 19 Sep 2011 19:50:00 +0000

USCIS reminds certain eligible widows or widowers of deceased U.S. citizens to file their visa petitions by October 28, 2011 – the deadline imposed by the FY2010 DHS Appropriations Act. This Act, signed into law by the President on October 28, 2009, removed the requirement that the marriage must have existed for two years before the death of the U.S. citizen spouse in order for the surviving spouse to self-petition for lawful permanent residence status. The elimination of the so-called "widow penalty" also allows any minor children of the widow(er) to apply for status. However, the law imposed a two-year deadline to file the petition. Applicants whose U.S. citizen spouse died on or after October 28, 2009 will
have two years from the date of the citizen spouse's death to file a
Form I-360 petition. For whose applicants whose U.S. citizen spouse died before October 28, 2009, and if they did not have a Form I-130 visa petition pending on October 28, 2009, they must file the I-360 visa petition on or before October 28, 2011.

How are Non-citizens Detained by ICE?

Tushar Mathur — Mon, 20 Jun 2011 18:51:00 +0000

The most typical route starts when the non-citizen—this could be an undocumented person, a person with a valid or expired temporary visa or a green gard holder—is already in federal or local law enforcement custody. For instance, the non-citizen was just recently arrested on criminal charges and taken to the county jail, or maybe he or she was already convicted and was serving a sentence. ICE regularly visits jails and interviews inmates to see if they are deportable aliens. The non-citizen may not know he or she is even talking to an ICE officer when they are interviewed!

You may have heard that your loved one had an “ICE hold” placed on him or her when they were in state or federal prison. What is going on? When ICE finds a non-citizen whom the agency thinks is deportable, ICE will issue a notice, called a “detainer” to the state or federal prison officials, requesting that the prison officials notify ICE if they intend to release the detained alien or to hold the person for ICE. It is ICE’s way of telling another law enforcement agency that ICE wants to arrest and remove an alien that another law enforcement agency has in its custody.

For a detainer to be valid, it must be issued while the alien is still in custody. Once the alien has served his or her criminal sentence or paid the criminal court bond for his or her release, if a detainer has been issued, the state or federal prison officials must hold the alien for up to 48 hours (excluding Saturdays, Sundays and holidays) for ICE to come and assume custody of the alien. If ICE does not come to pick up the alien within 48 hours, he or she must go free!

Unfortunately, many state and county officials either don’t know about the 48-hour rule (which is a federal regulation (8 CFR 287.7(d)), or, worse, they deliberately ignore it! If that appears to be the case, you should seek the help of a competent immigration attorney to enforce the 48-hour rule.

How are Non-citizens Detained by ICE?

Tushar Mathur — Mon, 20 Jun 2011 18:51:00 +0000

How a Divorce Can Hurt Your Immigration Case

Tushar Mathur — Wed, 05 Jan 2011 15:09:00 +0000

Three of the most common times when a divorce can negatively impact a person’s immigration case are: (1) when someone is waiting for their green card (a.k.a. applying to adjust their status); (2) when someone is trying to change a conditional residence status to permanent residence status; and (3) when someone is waiting on their naturalization (citizenship) application.

First, if an immigrant is married to a U.S. citizen and applies for a green card, but divorces the U.S. citizen before the green card is approved, the immigrant will no longer be eligible for a green card. The only exception is when the U.S. citizen spouse was abusive.

Second, as you may know, if an immigrant obtains a green card based on a marriage to a U.S. citizen, and that marriage occurred within the last two years, the green card is conditional and expires after two years. In order to remove the condition, the immigrant and the U.S. citizen spouse must file a petition (Form I-751) within 90 days before the card expires. (The petition must be accompanied by supporting documentation showing that the marriage is not a sham. USCIS will either: approve the petition; request additional evidence; refer the case for an interview; or, deny the petition and refer it to an Immigration Judge.) The petition must be filed jointly; however, if the couple is divorced, the immigrant will file the petition him or herself and seek a waiver of the joint filing requirement, which is only granted if: (a) the marriage was entered into in good faith but was legally terminated; (b) the immigrant’s deportation would cause the immigrant extreme hardship beyond the normal hardship of someone who is deported; or, (c) the marriage was entered into in good faith but the immigrant was abused by the U.S. spouse.

If you are applying for a waiver it is highly recommended that you hire an immigration attorney since this is not a routine application but rather it requires submitting substantial documentary evidence. It is also important to note that the couple can still file the petition jointly if they are separated or their divorce is not yet finalized. But, if the couple files a joint petition and their divorce is finalized before the USCIS has rendered a decision then the petition will be denied and the immigrant will have to file a new petition with a waiver request.

Third, divorce can negatively affect an immigrant trying to naturalize based on a U.S. citizen spouse. For example, in a recent California federal district court case, the plaintiff had applied for naturalization based on his U.S. citizen wife after he had been a lawful permanent resident for three years. However, while his naturalization application was pending, the plaintiff divorced his wife. The court found that the plaintiff was not eligible for naturalization because as a result of the divorce, the 5-year residency requirement for naturalization applied instead of the 3-year residency requirement after becoming a lawful permanent resident. Alenazi v. USCIS No. 09-cv-2053 (S.D. Cal. October 12, 2010).

As you can see, the timing of a divorce can have real consequences in immigration proceedings, which are best dealt with by planning ahead and consulting with a knowledgeable immigration attorney.

Seattle Immigration Lawyer | Eligibility for a Green Card through Employment

Tushar Mathur — Thu, 14 Oct 2010 02:01:00 +0000

My last Seattle Immigration Lawyer Blog post provided an introduction to the rather daunting process of obtaining a green card through employment. This post will go a little deeper into the eligibility requirements. Before you consider this route, you must have these two things going for you: a job offer from a U.S. employer (there are limited exceptions, including if you possess exceptional abilities or your work is in the national interest), and the employer must be generous enough to sponsor you.

If you have both of these, you are very fortunate indeed. With some more luck, and if you do not make any missteps, you may be successful in eventually getting your green card, which will allow your spouse and any unmarried children under 21 to also be eligible for a green card, assuming they are all admissible to the U.S. (And, after 5 years of having your green card, you will be eligible to apply for naturalization as a citizen.)

If your employer has a legal department (or outside counsel) that will be doing the labor certification process, that’s wonderful. If not, you should not embark on this process without representation. Consult with an experienced Seattle immigration lawyer because the rules are very strict and complex; they have also changed since a totally new system for labor certification was introduced in 2005 known as PERM.

Now, when an employer “sponsors” an immigrant, this entails going through labor certification, which essentially requires the employer to advertise and interview U.S. workers for the very job that you have been offered and reject all of these other candidates on lawful grounds. Of course, there is a lot more to the labor certification process that I will discuss later, including getting a prevailing wage determination from the state, writing a very carefully crafted job description, following a strict timeline, submitting financial records, following different advertising requirements depending on the job, etc. This is why an experienced immigration lawyer should be handling the process.

The good thing for the employer is that while Department of Labor rules require employers to pay for the labor certification process, including attorneys’ fees (though many do not follow this rule), the employer is not a financial sponsor of you, can always withdraw its green card petition for you, and, of course, is always free to fire you. The thing that makes many employers nervous, besides simply the time and money involved, is that they will have to provide financial records to USCIS; however, this is only to make sure the business can afford to hire you.

As far as the offer of employment, it must be for a full-time and permanent or indefinite period. The job must be in the U.S. from an employer permanently located in the U.S. In addition, and this is crucial, you need to have a background that matches the qualifications for the job. This is the most important factor for the government; it is not whether you have more skills than other candidates, or whether the employer likes you more. And, of course, if labor certification is required, the result of the required recruitment process—ironically, undertaken after you have been offered the job—must be that there are no U.S. workers qualified for the job offered.

In my next post, I will finally discuss the five employment-based immigrant visa preferences—anyone wishing to obtain a green card based on their job must apply under one of the preference categories.

Seattle Immigration Lawyer | Asylum Basics

Tushar Mathur — Thu, 23 Sep 2010 22:24:00 +0000

One way to obtain a green card and eventually to become a naturalized U.S. citizen is to apply for asylum. You can only apply for asylum when you are already in the U.S. or at the border/port of entry. If you are outside the U.S. and outside your home country, you can apply for refugee status—both refugees and asylees must meet the same standards but the process is different—this article will only discuss the steps for an asylee. If you think you may have an asylum claim, you should consult with an immigration lawyer about your specific circumstances.

Qualifications:

To qualify for asylum, you must demonstrate that you are unwilling or unable to return to your home country because of past persecution or a “well-founded fear” of future persecution in your home country based on your race, religion, nationality, political opinion or membership in a particular social group. The persecution you experienced or fear must be caused by your government or by a group that your government is unwilling or unable to control.

You will not qualify for asylum if you have assisted in persecution, have been convicted of a “particularly serious crime” (determined case by case, but may include minor crimes), have been involved in terrorist activity or can reasonably be seen as a threat to U.S. security, or have resettled in another country.

Timing:

If you are in the U.S., you may apply for asylum when (1) you are already in removal proceedings (defensively), (2) when you are not in removal proceedings (affirmatively), even if you are out of status in the U.S., or (3) at the border/port of entry. This article will focus on the process for (2), an affirmative asylum application.

Make sure that you file the asylum application within 1 year of your arrival in the U.S. If you file the application after your 1-year anniversary of arriving, you will have to prove “extraordinary circumstances” that prevented you from filing within the one year deadline, or changed circumstances that affected your eligibility for asylum. This is not easy and is in most cases, easily avoided by simply timely filing. (If you are nearing the deadline and do not have time to properly prepare an application, it’s best to file a skeleton application and supplement it later, rather than filing late.)

Stay tuned for my next article on the Asylum Application.

Process of Green Card for Indian in US

Tushar Mathur — Mon, 26 Apr 2010 06:55:42 +0000

For Indians United States of America always has been a vineyard or the place to achieve all the goals that have been setup in life. These vintage thoughts have always been very prevalent till now. Everyone wants to settle in the supreme country of the world and the thing that guarantees this permanent settlement is called the green card. There are different types of categories in which green cards that are offered by the US and the ones by which Indians get a green card are mainly sponsorship by a family member or an employer and investment as an entrepreneur.

Here we will focus on first type of settlement that is the sponsorship by a family member.

The following is the whole process to get a sponsorship:

The sponsor must be a U.S citizen or a lawful permanent resident of U.S and can provide document to prove the status of relationship and background.
The family member must be a close one and the allowed sponsors can be: Spouse, Unmarried child under 21 years old, unmarried son or daughter over 21 years old, married son or daughter of any age, brother or sister or mother or father if the sponsor is at least 21 years old.
The sponsor must be completely willing and he has to file a petition filling up an I-130 form.
The sponsor must be capable of supporting the family members and can provide resources that will bring the whole family 125% above the poverty line.
After this I-485 is filled this is the final step to get green card.

To get a sponsorship and green card from the sponsorship of the employer:

Employer must determine that the person is eligible for lawful permanent residency.
A labour certificate must be issued mentioning that no skilful labour is available in US for the same purpose so labour has to be hired globally.
If the labour certificate is issued than the petitioner can file I-140 form along with I-485 form which is the ultimate step to get a green card.
Immigrant visa number is issued and priority date is checked.
If priority is current then the resident in US can change his status to lawful permanent resident or if he is abroad then he files for immigration in embassy.

Why Look For Only a Legal Migration to US

Tushar Mathur — Thu, 24 Dec 2009 06:15:06 +0000

There are some advantages and benefits which are shared here under and for the same one should look out only to avail for opportunities to be a legal immigrant to the United States.

People do know that the illegal immigrants are some what help less and thus they tend to take advantage of the situation. There are many ways in which an illegal immigrant may be exploited. For example over work, underpay, abusing so on and so forth. These are things that no one would dare to do with a legal immigrant, as they would have the American law to protect them.
As per the cops the legal immigrants are more of the law abiding citizens and therefore gets better mixed with the American society. This helps materialize the goal of sharing the culture and the heritage of other countries in the American soil.
Legal immigration is always better as this would certainly encourage the best and the brightest people to look for the immigration opportunities, which is not only good for the immigrants but is also good for the United States as they get better talent globally who helps enrich skills in the Unites states. This also enhances the opportunity and the number of the high wage jobs.
The legal immigrants are citizens of the United States. They help and pay towards maintaining the social security system. On the contrary an illegal immigrant does not do any thing good for the social security system. Rather they eat up the job which should have gone rightfully to someone else.
United States normally respects the laws and cultures of all nations and thus they expect the same towards their laws, from the rest of the world. By going as per the law a strong message that goes out to the people is that United States is a land where the law is always upheld. Also the American government is extremely citizen friendly and they would do or go up to any extent to protect the interest of their citizens.
The procedure of legal immigration is to ensure that immigration process is done as per the requirements of the country. It’s never stopped entirely. There is one more thing that happens with the legal immigration is that people immediately find a job and their income standards get only better in the United States.
The legal migration process also helps the Federal government to uphold the rational behind the immigration procedure which is to protect the oppressed and the abused and giving them a better living standard.

Apart from many other benefits these mentioned above are only some of the benefits of legal immigration in to the United States.

The Green Card Lottery to Start Soon

Tushar Mathur — Sat, 19 Sep 2009 12:05:09 +0000

The Green Card Lottery for immigrating to the United States is supposed to start soon. Yes, starting 2^nd October the applications for the lottery would be accepted, under the diversity visa 2011 program. Popularly this scheme is also known as the Green Card Lottery by lots of people around the world.

For decades now the United States has been a destination of choice for millions of people for the purpose of immigration. They look for a better living standard in the United States and through this program the dream of a lot of people now would come true. Under the Green Card lottery program the immigrants would not require sponsors for themselves, who are already residents of the United States. The activity of accepting the applications for the Green Card lottery would last for approximately 2 months and post that the same would be closed. The last date for submitting the application has been declared to be as the 30^th Nov 09.

There would be approximately 50000 visas that would be made available to people all over the world under the diversity visa 2011 program, to citizens of countries all over the world. The lucky people are to be chosen by a lucky draw. The people selected in this random selection procedure would get an opportunity to be a citizen of the United States come stay and work here. But this does not happen without having to fulfill any conditions.

The eligibility criteria which are mandatory, for any one to be eligible for the diversity visa 2011 program are.

The person should have a high school certificate or equivalent for the educational qualification.
Or with in the last 2 years the person should have atleast a work experience for a work type that would essentially require a two year training time.

The Unites States government would allow both the spouses to submit their applications which could be helpful in the procedure of making their chances better towards getting selected in the diversity visa 2011 program.

To apply for the diversity visa 2011 program otherwise known as the Green Card Lottery does not necessarily mean that you have to get in touch with a lawyer or an immigration agent, provided you are able to prepare the paperwork your self. Its extremely important that do prepare the paperwork correctly else your application would stand rejected in the lottery.

Some insight about US Visas

Tushar Mathur — Mon, 31 Aug 2009 18:02:22 +0000

While talking of visas if a person does not belong to any of the three undermentioned categories then in that case the person would have to obtain a visa from the United States government to enter into the country.

First is if the person is not a citizen in one of the countries which fall under the thirty five countries which are listed by the United States government and falls under the visa waiver program.

Second, In case the person is a citizen of Canada or Bermuda then the person need not obtain a visa to enter in to the United State.

Finally, in case the person has some high profile criminal record or due to medical emergency also the person would not have to undergo the visa process.

There are normally 2 types of Visas there which may be Immigrant and Non immigrant types. Please note that in case you area resident of Mexico then also there are separate procedures for you, for as far as Visa is concerned.

To talk about the qualification process for the United State Visas while having applied for one. All applicants for the visa would have to establish that they do qualify as per the provisions made by the Immigration and Nationality Act. It’s an assumption that all visa applicants are intending immigrants. Thus the applicants must overcome the undermentioned.

The sole purpose of the trip is business, pleasure or a requirement of some medical assistance.

The duration of the stay would be specific and limited to a certain period.

The visitors have strong ties or relatives out side the United State boundaries, detachment from whom are likely to bring back the visitors after some time.

An interview amount equivalent of USD $131 is required to be paid to the interviewing officer at the consulate. Also in case the Visa is not granted then the fee does not stand to be refundable. The deciding factor s for the visa approval is adequate employment in the country of current residence, material assets and lack of criminal records for the applicant.

In case the visa officer has doubts about the applicant then they have all rights to reject the application or additionally, they might choose to go for a suggestion from the US Department of State. Now this is a long procedure and might take weeks of time for the approval to come in.