Green Card & Visa News » Naturalization

BIA held F2A visa beneficiaries may not "opt out" of automatic conversion to F1

Tushar Mathur — Fri, 07 Oct 2011 04:19:00 +0000

The Board of Immigration Appeal (BIA) has just held that a visa beneficiary is not allowed to retain his F2A preference status by opting out of automatic conversion to the F1 category as a son of a United States citizen upon his parent’s naturalization. Matter of ZAMORA-MOLINA, ID 3729, 25 I&N Dec. 606 (BIA 2011)

The mother of the beneficiary son filed a visa petition on his behalf when he was under the age of 21. However, while the case was waiting for a visa number, the son turned 21 and, subsequently, the mother became a naturalized citizen.

The regulation automatically converts a F2A (minor unmarried child of resident parent) and F2B (adult unmarried child of resident parent) petition to be an immediate relative and F1 petition respectively upon the naturalization of the petitioner. 8 C.F.R. § 204.2(i)(3)

Section 6 of The Child Status Protection Act (CSPA), also known as section 204(k)(2) of the INA, allows an alien to affirmatively opt out of automatic conversion from the F2B category to the F1 category by filing a written statement with the Attorney General. However, BIA held that there is no provision of law that allows an applicant to “opt out” of automatic conversion from F2A to F1 when the petitioner-parent becomes a citizen. Hence, the son in this case is not able to adjust his status by using the current cut-off date under the Mexico F2A preference category.

This is a very important decision on a controversial issue. BIA did not address the Equal Protection argument raised by the son as it lacks authority to rule on Constitutional issues. However, the issue is hardly settled and will likely be revisited by a federal court soon.

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.

USCIS Revises Form for Naturalization Medical Disability Exceptions

Tushar Mathur — Mon, 03 Jan 2011 15:55:00 +0000

On December 22, 2010, the U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-648, Medical Certification for Disability Exceptions, for individuals with disabilities who are seeking exceptions from the English and civics requirements for naturalization. An applicant for naturalization normally is required to establish proficiency in the English language as well as basic knowledge of the American history and government (the civics). However, the law provides for certain exceptions for individuals who are not able to meet these requirements because of physical or mental disabilities.

The requirements for medical exemption are very strict and the standard used by the USCIS to adjudicate these requests has always been quite high in recent years. Many applicants wrongly believe that just because they have a mental or physical disability, they are exempted from the English and civics test automatically. What they don’t understand is that, they must also establish a causal relationship between the disability and their ability to learn English and/or American civics. For instance, an applicant with poor eye sight may think that she is not able to learn English because of her lack of ability to read. However, since there are other ways to learn English, such as hearing and the Braille system, the USCIS will not likely grant exemption to this applicant.

According to the USCIS, the revised form is intended to “clarify the requirements and instructions,” and also to “standardize the process for applicants, medical professionals and USCIS officers.“ A comparison of the old and revised forms does not yield many changes in the questions except, however, two notable changes. First, the revised form does not ask the medical doctor to address the applicant’s daily activities when explaining how the disabilities impact the applicant’s ability to learn English and acquire knowledge of American history and government. The USCIS explains that the activities of the applicant’s daily life may not have a bearing on the medical evaluation. Although discussion of daily activities is no longer required by the form, it doesn’t mean that the doctor may not use examples of daily life activities to explain the difficulties experienced by the applicant in speech or communications.

The second major change of the revised form is that applicant no longer needs to state whether or not another government agency has made a determination on any disability being claimed by the applicant in the N-648 form. This change makes sense as determination of disability by other government agencies is intended for different purposes and made under different legal standards, and therefore should not be considered in the context of the naturalization process.

Finally, the new form also added some questions about any use of an interpreter. If the evaluating doctor speaks the applicant’s native language and communicates with the applicant in that language, the doctor must certify his fluency. Otherwise, if an interpreter’s used, he or she must also certify that he or she is able to translate for the applicant competently in the applicant’s native language. The previous versions of the form will be accepted by USCIS for 90 days, from December 22, 2010 until March 21, 2011. Starting March 22, 2011, the new form must be used by applicants and medical professionals.

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.

Rights that come with the US Citizenship

Tushar Mathur — Fri, 04 Sep 2009 18:47:27 +0000

The United States government has been welcoming immigrants from all over the world. They appreciate the contributions of the immigrants to enrich their culture, and also encourage preservation the American legacy tradition of freedom and equal opportunity. Like I said freedom and equal opportunity is very important in the United States and the same is extended to all people who are or become a citizen to this country.

Primarily there are two ways by which you might become a citizen of the United States.

Birth – If you are born within the territorial boundary of the United States or, if you are born of an American parent, who already holds the American citizenship.

Naturalization – Naturalization refers to the process, where in you approach the United States government with a citizenship request, as per the policies laid down by the federal government.

Being a Citizen of the United States would bring in a bagful of rights for you. The same has been briefly discussed about here to give you an idea of the same.

Rights of an US Citizen

Voting – As a citizen of the United States you would have the right to cast your vote in the federal elections, and you would be able to exercise your choice in choosing the next president of the United States of America.

Serve as Jury – As a citizen you would have the privilege to serve as the jury, and you would have your liberty to pronounce a person guilty or not guilty in a trial in any of the federal courts where you would be invited for being present in the trial and there after expressing your opinion.

Invite to United States – As a Citizen you would have the right to invite your family members to the United States of America, who till date have been staying in some different country. You would also have the liberty to file a request for their permanent residency with you.

Obtain Citizenship – In case your children are born in a different country other than the United States you would be allowed to obtain a citizenship for them.

US Passport – Being a citizen of the United States of America would mean that you would be eligible to get an American passport and you would be allowed to travel with the same all over the world.

Work for Federal offices – As a citizen you would be allowed to apply for a federal job opening.

Grant Eligibility – You would be eligible for obtaining the benefits of the federal grants and the scholarships.