Family Immigration Lawyer

Asylum Law in the United States

Asylees are refugees who are in the United States, at a land border or point of entry. INA §208(a). Asylees must qualify as refugees, meaning that they have to prove a well-founded fear of persecution based on a protected ground. Persons interdicted in the high seas may not qualify for asylum.

Before asylum could be granted, the person’s nationality has to be determined. Urgen v. Holder, 768 F.3d 269, 272-74 (2nd Cir. 2014). Statelessness alone, however, is not enough to qualify for asylum, but if statelessness is the basis for persecution then it qualifies. Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011).

Persecution is defined as a threat to the life or freedom of or an infliction of harm on those who differ in a way regarded as offensive. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Harm need not to be physical to rise to the level of persecution. Borca v. INS, 77 F.3d 210, 215-17 (7th Cir. 1996). Permanent or serious physical injury is not required to establish persecution. Matter of O-Z & I-Z, 22 I&N Dec. 23, 25-26 (BIA 1998). Custodial interrogation, rape or sexual assault, and forced medical examinations may arise to the level of persecution.

The government in the country of nationality must also be unable or unwilling to protect the applicant. Kamar v. Sessions, 875 F.3d 811, 819-20 (6th Cir. 2017).

Protected Grounds

The persecution must be based on a protected ground. The protected grounds are:

* Race

* Religion

* National origin

* Political opinion

* Membership in a particular social group

The applicant must prove that the persecution was based on one or more of the abovementioned grounds. INS v. Elias-Zacarias, 502 US 478 (1992). These characteristics may be imputed to an applicant. There must be a nexus between the persecution and the protected ground. The applicant does not have to show that the persecutor acted with bad intent. Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996).

Political Opinion

Political opinion requires an active and specific opinion or belief. Political opinion also does not require an active participation in rallies or organized functions. It requires the immigration judge to consider the evidence relating to the country of citizenship. Mandebvu v. Holder, 755 F.3d 417, 428-32 (6th Cir. 2014). Neutrality, however, may not be enough to show persecution. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). Political opinion, however, may be imputed, meaning that the persecutor assumes the political opinion because of a close relationship. INS v. Elias-Zacarias, 502 US 478 (1992). An applicant, however, does not have to show that she holds the actual opinion.

Membership in a Particular Social Group

A particular social group includes members of a group that hold a common immutable characteristic that could not be changed. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). The group must be defined with particularity. Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014). The group members have a characteristic that sets it apart. Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Family could also qualify as a particular social group. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). To prove eligibility based on a family unit, there must be a nexus between the family unit and the harm. Id. The Board has denied social group protections based on past criminal activities because they are not immutable. Matter of E-A-G-, 24 I&N Dec. 591, 595-96 (BIA 2008). The Attorney General has referred to himself a case to determine whether harm by private entities to social groups qualifies an applicant for asylum. Matter of A-B-, 27 I&N Dec. 227 (AG 2018).

The social group must be cognizable and articulated to the immigration judge and the Board would not remand a casa e for determination of a new social group. Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018). Federal courts have recognized the following groups:

* Members of a clan

* Domestic violence victims

* HIV/AIDS victims

* Mental illness or disability

* Gang membership

* Witnesses and family members

* Land owners

In mixed motive cases, the applicant must show that a protected ground was one central reason for the claimed persecution. INA §208(b)(1)(b)(i).

Past Persecution

If an applicant establishes past persecution, there will be a presumption of future persecution. The government many rebut such finding if 1) there was a fundamental change in circumstances or 2) the applicant may relocate within the country to avoid persecution. 8 CFR §§ 208.13(b)(1)(i)(A) and (B). Once a showing of past persecution is shown, the immigration judge must make such finding. Antipova v. US Att’y Gen., 392 F.3d 1259 (11th Cir. 2004). An applicant does not have to show subjective fear. Nor does he have to show that there was a pattern of persecution. 8 CFR § 208.13(b)(ii)(3). Once past persecution is shown, then there will be a presumption pf future persecution. 8 CFR § 208.13(b)(1)(ii). Such a finding would also show that a person’s life would be threatened for purposes of withholding of removal. INA §241()(3).

Humanitarian Asylum

When the government rebuts future persecution, an applicant may still qualify for asylum based on past persecution under humanitarian asylum. 8 CFR §208.13(b)(1)(iii)(A). Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1989). Humanitarian asylum is not an independent claim for preservation purposes. An applicant may also qualify for asylum if he or she would face other serious harm upon removal. 8 CFR § 208.13(b)(1)(iii)(B); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). Past persecution does not require persecution if the applicant’s testimony is credible.

Well Founded Fear of Future Persecution

An applicant who does not show past persecution may qualify for asylum if she can show that there is a possibility of future persecution. INA §101(a)(42). The applicant must show that a reasonable person similarly situated would fear persecution. Matter of Barrera, 19 I&N Dec. 837, 845 (BIA 1989). The quantum of proof may be less that 10% possibility. 8 CFR §208.13(b)(2)((i)(B). The fear has both a subjective and objective components. The persecutor does not need to presently be aware of the offending characteristic but that he will become aware. Eduard v. Ashcroft, 379 F.3d 182, 192-93 (5th Cir. 2004). Additionally, the applicant does not have show that he fled the country because of persecution, but that he has a claim now. Wiransane v. Ashcroft, 366 F.3d 889, 899 (10th Cir. 2004). Disclosure of asylum status to the applicant’s country may raise an independent claim of asylum. 8 CFR§ 1208.6(a).

A person does not have to show that he will be singled out if there is a pattern of persecution against similarly situated individuals. To establish a pattern, a person must show that the persecutor targets the group specifically for one of the five grounds. Even if there was no showing of a pattern, a person may still qualify if he or she is a member of a disfavored group. Sael v. Ashcroft, 386 F.3d 922, 925-30 (9th Cir. 2004). A person would not qualify if relocation is reasonable. Shah v. Holder, 758 F.3d 32 (1st Cir. 2014). Criteria to determine whether relocation is reasoto nable include 1) whether the person would be harmed in the place of relocation 2) ongoing civil strife in the country 3) administrative , economic, or judicial infrastructure 4) geographical limitations and 5) social and cultural restraints. 8 CFR §208.13(b)(3).

Mandatory Denial of Asylum

Congress has established bars to asylum, where USCIS may not grant asylum but an immigration judge must hold an evidentiary hearing regarding the bar. INA §§208(a)(2) and (b)(2). The bars include:

* Persecution of others under INA §208(b)(2)(A)(i)

* Particularly serious crime INA §208(b)(2)(A)(ii)

* Serious nonpolitical crimes INA §208(b)(2)(A)(iii)

* Danger to the security of the United States INA §208(b)(2)(A)(iv)

* Terrorism related inadmissibility grounds INA §208(b)(2)(A)(v)

* Firm resettlement INA §208(b)(2)(A)(vi)

* Safe third country under the US-Canada Agreement

* Previous asylum applicants under INA §§208(a)(2)(C)-(D) unless there are changed circumstances

* One-year time limit INA §§208(a)(2)(B), (D) unless there are changed or extraordinary circumstance

Withholding of Removal

While the Refugee Act adopts the well-founded fear standard, the standard for withholding of removal adopts the probability of harm standard. INA §241(b)(3). This section of the law is based on Article 33 of the Protocol and allows relief if the applicant’s life would be threatened if returned to his or her country. Withholding provides a mandatory prohibition against removal if the person’s life would be threatened for a protected ground. Popova v. INS, 273 F.3d 1251 (9th Cir. 2001).

A finding of past persecution establishes a well-founded fear of future persecution for withholding of removal purposes. If the person does not show past persecution, then he must demonstrate that it is more than likely that he will be persecuted on a protected ground. 8 CFR §208.16(b)(2). If the person fails to show that relocation is unreasonable, then he would not meet the criteria for withholding. 8 CFR §1208.16(b)(2). If relocation is found to be reasonable, then the applicant must show that it Is not. 8 CFR §1208.16(b)(3)(i). If the showing of relocation is rebutted, then the immigration judge must consider the same criteria for relocation under asylum. 8 CFR §1208.16(b)(3).

USCIS may not consider withholding since it is only a defense to removal. 8 CFR §208.16(a). Withholding of removal does not allow for derivative status, and the judge must find removability to grant withholding. Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008).

Bars to Withholding

Under INA §241 (b)3)(B), there are bars to Withholding of Removal. These bars include:

Nazism or Genocide

Persecution of others under INA §241 (b)3)(B)(i) a person who has ordered the persecution of others on a protracted ground may not qualify for withholding of removal. Matter of A-H-, 23 I&N Dec. 774, 783-85 (AG 2005).

Particularly serious crime and danger to the community:

* Aggravated felonies where more than 5 years sentence was imposed

* All other crimes where the person is a danger to the community. The Board has relied on the criteria in Matter of Frentescu, 18 I&N Dec. 224, 247 (BIA 1982). In more recent decisions however, the Board has moved away from these factors. In the Ninth Circuit, a person must be convicted of an aggravated felony for the crime to be particularly serious.

We understand that applying for asylum and withholding of removal is a serious matter. Your life could literally depend on the result. Call us today for help applying for such relief.

What could be done to stop my removal proceedings?

*Ninth Circuit Rules that Applicant Waived Her Application By not Adhering to Deadlines

* Asylum

* Asylum Application

* For Naturalization and Citizenship

* Waivers of Misrepresentation

The Immigration and Naturalization Act forgives certain mistakes such as misrepresentation or fraud. This is in accordance with Congress’ intent to unite family and preserve family units. The Act has several waivers of inadmissibility in removal proceedings INA §237(a)(1)(H), before USCIS under INA §212(i), and waivers for non-immigrant visas. This article will discuss these waivers in detail. Call us today if you have been charged with deportability and inadmissibility under the law.

Permanent residence

For many, gaining permanent residence in the United States is a lifelong dream. Adjustment of status is the first step towards achieving many individuals’ lifelong dream of becoming a United States citizen. Attorney Brian West has helped numerous individuals apply for permanent residence through family, employment, or special visa petitions. We would be honored to help put you on solid footings to reach your and your family’s goals.

What is Permanent Residence?

Adjustment of status in the process in which individuals signal to the United States government that they want the United States to be their permanent home. Adjustment of status could be achieved in many ways, including marriage, employment, and special permanent residence programs like self-petitions under the Violence Against Women Act (VAWA).

How Can I Apply for Permanent Residence Using Marriage?

Permanent Residence through marriage to a United States citizen or Lawful Permanent Resident is one of the quickest and cheaper ways to receive permanent residence. This is because the United States government gives priority to foreigners married to this class of individuals for family reunification reasons. Although individuals married to United States citizens are considered “immediate relatives”, who do not need to wait for an immigrant visa petition to be available, individuals married to permanent residents have to wait for such visa to be available. These visas are granted on a country quota basis, meaning that these visas may be available to individuals from certain countries but not others. Individuals married to permanent residents should also be “in status” if applying for adjustment of status in the United States.

The first step in the process is to apply for a form I-130, petition for alien relative, along with an application for permanent residence if the person is in the United States or a stand-alone I-130 petition if the individual is outside the United States.

Can I Apply Using My Job?

Permanent residence through employment is possible but depends on the background and the job the person intends to occupy upon adjustment of status. Individuals applying for permanent residence through employment fall into preference categories, meaning that the United States gives priority to certain individuals over others. There are five preference categories, commonly known as EB1, EB2, EB3, EB4, and EB-5.

The EB1 preference category includes international managers and executives, to outstanding professors and researchers and persons with extraordinary ability in the arts and sciences.

This preference category does not require a labor certification by the Department of Labor. Some of the individuals who fall into this category may self-petition, meaning that they may not require an employer, but must intend to continue working in their field.

The EB2 category includes individuals who require a labor certification unless they fall under an exception, who intend to occupy jobs that require a Master’s degree or higher. A person holding a Bachelor’s degree with five years of progressive employment may also apply under this category. Most of these individuals require a labor certification unless the job is pre-certified or falls within the national interest of the United States.

The EB3 category also requires a labor certification and is reserved for jobs that require a Bachelor’s degree or its equivalent. The EB3 category includes individuals who are skilled workers, professionals who hold a Bachelor’s degree, or other workers who have two years of experience.

The EB4 category includes special immigrants including religious workers and nationals of Afghanistan and Iraq who worked as translators with the United States armed forces.

The EB5 program, also known as the employment creation category, includes individuals who, through a minimum investment of $500,000 in their own enterprise or a regional center, and create 10 jobs in the United States gain permanent residence. For more information on this program visit this link.

Can my Child Receive Permanent Residence with Me?

In many situations, and depending on individual cases, children of applicants for permanent residence can receive permanent residence with their parents.

What are the Requirements?

There are many requirements to receive permanent residence whether you are applying in the United States or outside the United States before a consulate of the United States using consular processing. Lawful admission to the United States is critical unless a person who has entered in an undocumented way falls under an exception. The person must also be admissible into the United States. Admissibility means that the individual has not committed crimes, or has other grounds of inadmissibility in their background. The person should also be not deportable from the United States, meaning that the person has not committed acts that would lead to his deportation from the United States.

Can I Receive Permanent Residence if I am Outside the United States?

Permanent residence for individuals outside the United States is possible through consular processing.

What if I have committed a crime, May I still Apply for Permanent Residence?

You may gain permanent residence, even though you committed a crime, depending on the nature of the crime and the classification of such crime.

Can I Apply for Permanent Residence in Immigration Court?

Yes. We have helped numerous individuals apply for permanent residence in immigration court.

Waivers of Misrepresentation under INA §237(a)(1)(H):

Immigrants could be charged for deportability under INA §237(a)(1)(A) for committing fraud or misrepresentation when obtaining an immigrant visa or adjustment of status. Fraud requires three things: 1) a misrepresentation, 2) of a material fact, and 3) with intent to deceive. Matter of G-G-, 7 I%N Dec. 161, 164 (BIA 1956). This misrepresentation may manifest itself in several ways. The immigrant must however make such misrepresentation to get a benefit under the Act. There are three requirements for the waiver:

* A qualifying relative

* Must have an immigrant visa or an equivalent document, and

* Must have been otherwise admissible at the time of such admission

This waiver does not require a showing of hardship to anyone, including the immigrant himself. Self-petitioners under the Violence Against Women Act do not need to show hardship. The requirement for an immigrant visa means that the waiver is not available to nonimmigrants or those who entered without inspection. The otherwise admissible language requires that the immigrant be free of any other grounds of inadmissibility. Matter of Fu, 23 I&N Dec. 985, 988 (BIA 1999).

At the time of admission includes adjustment of status for waivers under INA §237(a)(1)(H). Matter of Agour, 26 I&N Dec. 566 (BIA 2015).

Waivers for Misrepresentation under INA §212(i):

The Act, under INA §212(a)(6)(c)(i), makes an immigrant inadmissible for fraud or misrepresentation. To be inadmissible under such ground, the immigrant must have:

* Willfully misrepresented

* A material fact, and

* For a benefit under the Act.

There are several issues here. The law allows for a waiver of such misrepresentation if he or she could show that the denial of admission would lead to extreme hardship to a United States citizen or lawful permanent resident qualifying relative.

Practitioners challenge the finding of misrepresentation by arguing that the alleged fraud or misrepresentation was not willful, was not material, and was not for a benefit under the Act.

Non-immigrant Visa Waivers for Misrepresentation:

This waiver is available under INA §212(d)(3(A). The consular officer must weight three factors in adjudicating these waivers:

The recency and seriousness of the activity leading to inadmissibility.

The reason for the proposed travel to the United States, and

The positive or negative of the planned travel to national interests

9 FAM 305.4-3(C).

Inadmissibility or deportability under the abovementioned grounds are very serious findings. An immigrant must consult with a competent immigration attorney to apply for these waivers. Call us today to schedule a consultation to discuss your options.

Citizenship and Naturalization

The United States allows citizenship by several means. These means include:

* Citizenship by birth in the United States under INA §§301(a)-(b) and (f)

* The citizenship of one or both parents INA §§301(c)-(d) and (g)-(h)

* A combination of parental citizenship and location INA §§301(e) and 303

* After birth by a combination of parental citizenship and residence INA §§320 and 322

* Naturalization under INA §316

* Citizenship by Birth or Certain Unincorporated Territories

The 14th Amendment grants citizenship by birth in the United States. The United States adhered to the doctrine of jus soli. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). This also includes persons born in certain US territories under U.S. control. INA §§302 and 304-307. This also includes a person born in the Panama Canal under certain conditions. 8 USC §1403. Persons born in the Commonwealth of the Northern Mariana Islands after January 9, 1978, are United States citizens by virtue of covenant between the US and the Commonwealth. However, a person born in a location such as the Philippines and American Samoa are not citizens but nationals of the United States and do not acquire citizenship at birth. However, they may acquire citizenship by naturalization. Entines v. U.S., 160 F.Supp.3d 208 (D.D.C. 2016).

A lack of an official birth record is not as decisive as to whether someone is born in the US. Persons of unknown parentage found in the US are considered born in the United States unless proven otherwise before turning 21. INA §301(f).

Citizenship by Acquisition at Birth

A child born outside the US where one or both parents are United States citizens may acquire citizenship ay birth. INA 301(c)-(e), (g)-(h). A child born out of wedlock may acquire citizenship and requires the mother to be physically present in the United States to transmit citizenship. INA §309(c). A child does not need a certificate of citizenship. Children born by Assisted Reproductive Technology (ART) may acquire citizenship under INA §301/309 if 1) USC father must be the genetic parent 2) the USC mother is the genetic mother or 3) USC mother is the gestational and legal mother of the child at the time and place of the child’s birth.

Residence of Physical Presence of the USC Parent

A child’s USC parent must reside or be physically present in the US to “transmit” citizenship to the child. Residence has been defined as principal dwelling place of a person without attention to intent. Savorgnan v. US, 338 US 491 (1950). In Sessions v. Morales-Santana, the United States Supreme Court ruled that the different physical presence for unwed mothers and father violated equal protection. 137 S.Ct 1678 (2017). Physical presence need not be counted by the minute. If the parent is a naturalized US citizen, the time before and after naturalization may be counted. Matter of M-, 7 I&N Dec. 643 (RC 1958). A parent may not that constructive presence prevented him from residing in the United States due to war or illness but may when he was prevented by the government due to erroneous interpretation of the law. Matter of Navarrete, 12 I&N Dec. 138 (BIA 1967).

Adopted Children

In Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) an adopted child may not benefit from INA §301(g) but may be eligible under INA §322.

Citizenship by Derivation through Naturalization or U.S. Birth of One Parent under INA §320 and former law under INA §321

Prior to the Child Citizenship Act, a child could derive citizenship when one parent became a United States citizen when the child was under 18 and the child was residing in the US after a grant of permanent residence. The child could have also derived if he or she was residing in the United States and was in the legal custody of that parent. INA §321. The Board of Immigration Appeals has interpreted the law to require lawful permanent residence before the age of 18. Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). The law required 1) the naturalization of both parents 2) the naturalization of one of the parents if the other is deceased 3) the naturalization of the parent with legal custody of the child, or the naturalization of the mother of the child was born out of wedlock and legitimization has not occurred.

Child Citizenship Act

The Child Citizenship Act has changed former law and streamlined the process. Under the new law, a child derived citizenship if 1) one child is a citizen by birth or naturalization, 2) if the parent naturalized, the child was under 18, 3) the child is residing in the United States as a lawful permanent resident; and 4) the child is residing in the US in the legal custody of the United States citizen parent. INA §320(a). Under INA §320(b), adopted children derive citizenship after admittance as lawful permanent residents. Lawful permanent residence must be obtained legally without misrepresentation. Walker v. Holder, 589 F.3d 12 (1st Cir. 2009). The child should have been admitted for permanent residence on or after February 27 2001. Legal custody means that 1) the child currently resides with both parents, 2) the child resides with one natural parent of the other is deceased, or 3) the child was born out of wedlock was legitimated and currently resides with the natural parent. Matter of Rivers, 17 I&N Dec. 419, 421 (BIA 1980).

The child must be under 18 at the time he or she receives permanent residence. Gutierrez v. Lynch, 830 F.3d 179 (5th Cir. 2016).

Children born out of wedlock may claim citizenship from their mother when the mother naturalizes. Children claiming derivative citizenship through their father may use the legitimization laws at the place of residence at the time of birth. Matter of Cross, 26 I&N Dec. 485 (BIA 2015). Step-children are not covered under the law since they are included in the definition under INA §101(c). Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009).

Certificate of Citizenship under INA §322

A child who has not derived citizenship through the naturalization of one parent may apply for a certificate of citizenship if 1) one parent is a USC; 2) the child is temporarily physically present in the United States under a lawful admission and is in status, 3) the child is under 18, and 4) the child is outside the United States in the legal custody of a father who has been in the United States for 5 years 2 of which after the age of 14. A child may obtain a certificate within 5 years of a parent’s death if there is grandparent or United States citizen guardian. An adopted child must have been adopted before 16. 8 CFR §322.

A child whose parent did not meet the physical presence requirements may still obtain a certificate if the United States grandparent resides in the United States for 5 years 2 of which were after the grandparent’s 14th birthday. INA §322. If the grandparent died, then the child still qualifies if the grandparent met the physical presence before passing. Children born to members of the armed forces are exempted from all these requirements under INA §322(d). The application is filed on form N-600K before the child enters the United States. Persons otherwise eligible may file form N-600 if they are in the United States.

Naturalization by Application

An immigrant may become a citizen by naturalization. The person must meet the following requirements:

The immigrant must be a lawful permanent resident. If the immigrant erroneously obtained permanent residence or by fraud, the denial of his naturalization would be upheld. Reganit v. Secy., DHS 814 F.3d 1253 (11th Cir. 2016). Conditional permanent residents may apply for naturalization if they have met the physical presence requirements. Matter of Paek, 26 I&N Dec. 403, 406-07 (BIA 2014). Effective date of residence is rolled back for applicant who adjusted under the Cuban Adjustment Act or asylees.

Must be at least 18 years old under INA §334(b) unless the age requirement is waived for military service.

The immigrant must meet the continuous-residence and physical presence requirements. The lawful permanent resident for five years unless married to a United States citizen. If married to a United States citizen the couple must be 1) the United States citizen spouse has been a citizen for three years, and 2) the parties have been living in a marital union for 3 years. 8 CFR §319.1(a)(3). There is no requirement that the marriage was the predicate for permanent residence. Living in a marital union means that the couple is living together. S. v. Maduno, 40 F.3d 1212 (11th Cir. 1994). Involuntary separation, however, may not sever eligibility. A battered spouse or child may also apply under the 3 years rule. INA §319(a). The person must also reside for at least three months in the state where he applies. INA §316(a). A student attending an institution outside of his state may apply in the state of the institution or his state of residence. The person must have also resided in the United States for one-half of the five or three years. The immigrant must also reside in the United States from the time of the application to the date of admission into citizenship. Id. Disruptions in residence between 6 months and 1 year create a rebuttable presumption of abandonment of residence. Factors that may be used to show that an immigrant did not abandon residence include 1) not terminating employment in the United States; 2) the presence of immediate family in the US; 3) retention of full access to US home and 4) not obtaining employment abroad. An absence of more than one year shall disrupt residence. A person with disruption of residence may reapply 4 years and one month after coming to the United States. A person who qualifies under the 3 years rule can apply after two years and one month. There are certain exemptions including service in the military, spouses, and children of service members, employees working abroad for the US government or international organizations.

The immigrant must be a person of good moral character for the statutory period required and until citizenship. A member of the military must be for one year. Providing false testimony can be a bar to establishing good moral character. INA 101(f)(6). Materiality is not a consideration in this analysis. Certain crimes also bar the finding of good moral character. A person who has committed murder is permanently barred from establishing good moral character. The permanent bar also applies to persons convicted of an aggravated felony. A person who received a pardon before or during the statutory period may still establish good moral character. 8 §§CFR 316.10 (c)(2)(i) and (ii). Voting illegally or making false claims to citizenship may also preclude a finding of good moral character, unless 1) each parent was a United States citizen, 2) the applicant resided permanently in the US prior to 16 and 3) he or she reasonably believed that he or she was a United States citizen. The officer may still approve the application if the person is not in removal proceedings using the following factors 1) family ties, 2) absence of criminal history, 3) education and school records, 4) employment history, 5) other law-abiding behavior including paying taxes, 6) community involvement, 7) credibility and 8) length of time in the US. Polygamy and commission of criminal acts may also be used to deny an application.

The immigrant must also be attached to the principles of the Constitution under INA §316(a)(3).

The immigrant must also be willing to bear arms, perform noncombatant services, or work of national importance.

The immigrant must also demonstrate knowledge of English and US History and Government

The immigrant must also take the oath of allegiance.

Violence Against Women's Act (VAWA)

The Violence Against Women Act (VAWA) allows spouses, children, and parents of abusive United States citizens, or lawful permanent residents in some instances, to petition for permanent residence in the United States. To qualify for a self-petition, the self-petitioner should have been abused by the United States citizen, or by the Lawful Permanent Resident in the case or spouse or child. There are several kinds of abuse that qualify, which will be discussed below.

I was abused by My Spouse, Can I Apply Under VAWA?

If you have been abused by your spouse, you may self-petition for permanent residence by filing an I-360 petition with the United States Citizenship & Immigration Services. This ability to self-petition was established by Congress in 1996 in the original Violence Against Women Act. The self-petitioning process is straightforward and is adjudicated by a special section of the Service’s Vermont Service Center. Once approved, the self-petitioner may apply for Adjustment of Status, if the visa number is available.

I Entered the United States without Inspection, Can I Still Apply?

Yes. The law allows you to apply for Adjustment of Status, even though you entered without inspection.

What Type of Abuse Should I Document?

We have used many forms of abuse to successfully apply for clients under the Violence Against Women Act (VAWA) self-petition procedure. Some of the forms of abuse include:

Immigration abuse where the abusive spouse refuses to apply for an immigration benefit or has threatened to call the authorities to report the immigrant.

Financial abuse where the abusive spouse steals from, or forces the immigrant, to give away money or assets.

Psychological or emotional abuse, where the abusive spouse calls the immigrant names or prevents the immigrant from enjoying life.

Other forms of abuse may also apply in certain situations.

What Type of Evidence Should I Include in my Petition?

There is a plethora of evidence that you can include in your petition. Some of the evidence that we usually include includes:

* Marriage and divorce certificates

* Evidence of the bona fide nature of the marriage

* Evidence of the self-petitioner’s good moral character

* Evidence of abuse, including psychological reports

* Evidence of domestic violence injunctions

Can I Include My Children In My Petition?

Yes. If you have any children who are under 25, they can be included in the self-petition.

I am In Removal Proceedings, Can I Still Apply?

Yes. You may self-petition through the process mentioned above, or obtain special rule Cancellation of Removal under the Violence Against Women Act (VAWA).

Will My Information Remain Confidential?

Yes. The law has severe penalties for release of any confidential information relating to battered spouses or children.

When Can I File for Adjustment of Status?

You may file form I-485 Adjustment of Status application with your initial I-360 application if you have been battered by a United States citizen.

I Have Divorced My Spouse, What Can I Do?

You may still apply for adjustment using VAWA even if you divorce your spouse, within two years.

Removal of Conditions on Residence (1-751)

The Marriage Fraud Amendments passed by Congress in 1986 established the Conditional Residence classification. The main goal of these amendments is to prevent fraud in marriage based Adjustment of Status applications. The amendments mandate that the Beneficiary in an Adjustment of Status case to apply for removal of conditions on the permanent residence by filing an I-751 application 90 days before the second anniversary of the approval of the initial Adjustment of Status application.

How and When Do You have to File Your Petition?

A Beneficiary of any marriage based I-130 petition, filed by a United States citizen or a lawful permanent residence, must file the I-751 application if he or she were granted Conditional Permanent Residence initially. A Beneficiary would be granted this status if his or her marriage to the United States citizen or permanent resident is less than 2 years old. Beneficiaries who have been married to the Petitioner for more than 2 years receive permanent residence without any conditions.

The Beneficiary must file the petition 90 days before the expiration of Conditional Residence.

Do I have to File Jointly with My Spouse?

If you are still married to the Petitioner spouse at the time of filing, you should apply jointly. A joint petition would not be possible if you and your spouse are separated or divorced, it is advisable to apply for one of the waivers discussed below.

My Spouse and I are Divorced, What Should I do Now?

If you are no longer living with your spouse, or you are now divorced, you may apply for one of the available waivers under INA §216(c)(4). These waivers include:

* Extreme Hardship Waiver: this waiver is available for Applicants whose removal would lead to extreme hardship to a qualifying relative.

* Good Faith Marriage: this waiver is available for an Applicant who entered the marriage in good faith, and the marriage was terminated other than the death of the Petitioner spouse.

* Battered Spouse Waiver: this waiver is available if the Conditional Resident was abused or battered by the Petitioner during the period of conditional residence.

* A Beneficiary does not have to wait to apply for one of these waivers until 90 days before the conditions expiration and may file at any time.

What Evidence Should I File?

There are several decisions from the Board of Immigration Appeals dealing with the sufficiency of the evidence in these cases. Some of the evidence that you should consider including in your petition include:

* Birth certificates for any children

* Health and car insurance

* Joint mortgages and other joint loans

* Utility and phone bills

This is not an exhaustive list and you should consult an immigration attorney before filing your petition.

My Petition was Denied, Now What?

Under the Immigration and Naturalization Act, a denial of the I-751 petition by the Service leads to the initiation of removal proceedings against the Applicant. The Applicant may renew the application before the Immigration Judge. The Applicant may also renew his or her waiver applications.

It is important to highlight the fact that the Applicant remains a Lawful Permanent Residence until the immigration judge enters a final decision.

Please hire an attorney before filing an I-751 application, since they are very complicated and have great consequences if the Service denies them. Call us or contact us for a consultation.

Unlawful Presence Waivers

Unlawful presence in the United States is detrimental when it comes to obtaining an immigrant visa or adjustment of status. Under INA §212(a)(9(B), 8 USC §1182 (a)(9) , a person who seeks admission after being unlawfully present in the United States is inadmissible. If the period of unlawful presence is more than 180 days but less that 360 days, the immigrant would be inadmissible for three years. The immigrant would be ineligible for 10 years if the period is more than 180 days. However, there are periods of presence that do not count towards unlawful presence including:

* Individuals granted voluntary departure

* Individuals not given an I-94

* Persons granted Temporary Protected Status (TPS)

* Those with pending adjustment of status application

* Those granted withholding of removal

* Individuals granted a stay of removal, and

* Those granted cancellation of removal.

* There are other exceptions in the statute including battered spouses, minors, asylees, those subject to family unity protections, and victims of severe forms of trafficking. Some individuals who are unlawfully status in the United States may not necessarily trigger unlawful presence. These immigrants include students who have been granted duration of status would not accrue unlawful presence until an immigration judge or USCIS decides that the person has been unlawfully present.

An immigrant musk seek admission again for the unlawful presence bar to be triggered.

Green Card for Spouse of US Citizen

US Citizens who are married to a person from another country may apply for a Green Card for their foreign spouse. A Green Card will give the foreign spouse permission to live and work in the US on a permanent basis.

Green Card Benefits for the Spouse

1. Live in the United States

This means your spouse will be able to live legally in the United States.

2. Work in the United States

Your spouse will be able to work legally in the United States.

3. Education

With a Green Card, your spouse can attend schools in the US without the need to apply for a Student Visa.

4. Social Security Number

Your spouse will be able to receive a Social Security Number.

5. Driver’s License

Your spouse will be eligible to apply for a US Driver’s License.

6. Eligibility to Apply for US Citizenship

One of the major benefits of a Green Card is that a Green Card opens the door to applying for US Citizenship. Generally, the foreign spouse may apply for US Citizenship 3 years after receiving a Green Card.

Green Cards for Spouse Requirements

When applying for a Green Card as the Spouse of a US Citizen, there are 2 main requirements:

1. You must be legally married.

A legal marriage is one that is officially recognized by the government of the state or country where you got married. A government issued “marriage certificate” showing that the marriage is official proves your marriage is legal. Keep in mind, you do not need to get married in the United States. Getting married in another country also works.

2. Your marriage must be “bona-fide”.

What is a bona-fide marriage? A bona-fide marriage is a marriage where the spouses got married for the purpose of forming a family and living like a family. In more simple terms, you cannot get a Green Card, if you only got married to get a Green Card.

Green Card for Spouse Application Process

There are two different ways to apply for a foreign spouse’s Green Card. Option #1 is used when the foreign spouse already lives in the US. Option #2 is used when the foreign spouse lives outside the US.

Option #1 – Foreign Spouse Lives in USA

When the foreign spouse already lives in the USA, the Green Card application process is done entirely inside the USA. The legal name for this process is “Adjustment of Status.”

The Green Card process for a foreign spouse that currently lives in the United States is as follows:

Step 1: Document Checklist

The first thing our Immigration Lawyer will do is provide you with a detailed checklist of the documents needed to prepare your spouse’s Green Card application. This checklist is the most important part of the application because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare Green Card Application

Once you and your spouse have provided our office with the required documents, the Immigration Lawyer will prepare and submit the Green Card application to the US Government (USCIS).

Step 3: Work and Travel Permit

Once your spouse’s Green Card application has been submitted, your spouse may be eligible to receive a work and travel permit. With this permit, your spouse can receive a Social Security Number and work legally in the US while the Green Card application is pending. After the work and travel permit is issued, then we wait for USCIS to schedule an interview appointment for both spouses.

Step 4: Green Card Interview for Spouse

The last step of the process is the Green Card interview. The purpose of this interview is for a US Government Officer to review your Green Card application and to confirm that you really are married with the intention of living as a family. This interview is done inside the USA at a US Government (USCIS) office. Prior to your appointment, the Immigration Attorney will prepare you and your spouse for the Green Card interview.

Option 2 – Foreign Spouse Lives in USA

When the foreign spouse lives outside the USA, the Green Card process includes 2 separate applications. Application #1 is filed inside the USA. Application #2 is filed outside the USA, at the US Embassy in the country where the foreign spouse lives. The legal name for this process is Consular Processing.

The Green Card application process when the foreign spouse lives outside the USA is as follows:

Step 1: Document Checklist

The first thing our Immigration Attorney will do is provide you with a very specific checklist of the documents needed to prepare the foreign spouse’s Green Card application. This checklist is the most important part of the application, because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare and Submit Application # 1

Once you and your spouse have provided our office with the required documents, the Immigration Attorney will prepare and submit Application #1. Then, we wait for an approval of Application #1 before moving forward.

Step 3: Prepare and Submit Application #2

Once Application #1 is approved, we start Application #2. Our Immigration Lawyer will prepare and submit Application #2 to the National Visa Center (US Embassy). Then we wait for the US Embassy to schedule an interview appointment for the foreign spouse. This interview will be held at the US Embassy in the country where the foreign spouse lives. The US Citizen spouse is not required to attend the interview at the US Embassy.

Step 4: Green Card Interview at US Embassy

Application #2 ends with a Green Card interview for the foreign spouse. The purpose of this interview is for a US Government Officer to determine that the application is complete and to confirm that the foreign spouse and the US Citizen spouse are really married with the intention of living as a family. This interview is done at the US Embassy, outside of the USA, in the country where the foreign spouse lives. Prior to this interview, our Immigration Attorney will schedule an appointment to prepare the foreign spouse for the Green Card interview.

Green Card for Child of US Citizen

Green Card via Family

If you are a US Citizen and have a child from another country, you may apply for your child’s Green Card. A Green Card will give the child permission to live and work in the US on a permanent basis. Furthermore, if your child is under the age of 18 when the child is admitted into the US with a Green Card, then the child automatically becomes a US Citizen. Our Immigration Lawyers are knowledgeable on obtaining Family Green Cards for children of US citizens.

Green Card Benefits for the Child

1. Live in the United States permanently

Once the Green Card is approved, your child will be able to live in the United States.

2. Public Education

Your child will have access to schools in the USA and be able to attend classes from Pre-K to high school.

3. Work in the United States

When your son or daughter reaches the legal age to work in the USA, a Green Card will allow them to legally work in the USA.

4. Social Security Number

Your child will be able to receive a Social Security Number.

5. Driver’s License

Your son or daughter will also be able to apply for a Driver’s License.

6. Eligibility for US Citizenship

One of the major benefits a Green Card offers is that a Green Card opens the door to US Citizenship. A child of a US Citizen, who is under 18 years old, who gets admitted into the US with a Green Card, automatically becomes a US Citizen. On the other hand, if the child of a US Citizen is 18 or older at time the Green Card is issued, then the child may apply for US Citizenship 5 years after getting the Green Card.

Green Cards for Child Requirements

When applying for a Green Card for a child, there is 1 main requirement that the government looks at when deciding to approve your application:

The US Citizen parent must prove that he/she is the parent of the child. This is normally proven with the child’s birth certificate.

Green Card for Child Application Process

There are two different ways to apply for a child’s Green Card. Option #1 is used when the child already lives in the US. Option #2 is used when the child lives outside the US.

Option #1

When the foreign child already lives in the USA, the Green Card application process is done entirely inside the USA. The legal name for this process is Adjustment of Status.

The Green Card process for a foreign child that currently lives in the United States is as follows:

Step 1: Document Checklist

Once you hire our law firm, our Immigration Attorney will provide you with a detailed checklist of the documents needed to prepare your child’s Green Card application. This checklist is the most important part of the application, because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare Green Card Application

Once you have provided our office with the required documents, the Immigration Lawyer will prepare and submit your application to the US Government (USCIS).

Step 3: Work and Travel Permit

Once your child’s Green Card application has been submitted, your child may be eligible to receive a work and travel permit. With this permit, your child can receive a Social Security Number and work legally in the US while the Green Card application is pending. After the work and travel permit is issued, then we wait for USCIS to schedule an interview appointment for the child and the US Citizen parent.

Step 4: Green Card Interview

The last step of the process is the Green Card interview. The purpose of this interview is for a US Government Officer to review the Green Card application and to confirm that the child is truly the child of the US Citizen parent. This interview is done inside the USA at a US Government (USCIS) office. Prior to your appointment, the Immigration Attorney will prepare you for the Green Card interview. From time to time, the interview requirement is waived and no interview is required.

Option #2

When the foreign spouse lives outside the USA, the Green Card process includes 2 separate applications. Application #1 is filed inside the USA. Application #2 is filed outside the USA, at the US Embassy in the country where the child lives. The legal name for this process is Consular Processing.

The Green Card application process when the foreign child lives outside the USA is as follows:

Step 1: Document Checklist

Once you hire our law firm, our Immigration Attorney will provide you with a very specific checklist of the documents needed to prepare the child’s Green Card application. This checklist is the most important part of the application, because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare and Submit Application # 1

Once you have provided our office with the required documents, we will prepare and submit Application #1. Then we wait for an approval of Application #1 before moving forward.

Step 3: Prepare and Submit Application #2

Once Application #1 is approved, we start Application #2. Our Immigration Lawyer will prepare and submit Application #2 to the National Visa Center (US Embassy). Then we wait for the US Embassy to schedule an interview appointment for the child. This interview will be held at the US Embassy in the country where the child lives. The US Citizen parent is not required to attend the interview at the US Embassy. Any adult can accompany the child to the interview.

Step 4: Green Card Interview at US Embassy

Application #2 ends with a Green Card interview for the child. The purpose of this interview is for a US Government Officer to determine that the application is complete and to confirm that the US Citizen is the parent of the child. This interview is done at the US Embassy, outside of the USA, in the country where the child lives. Prior to this interview, our Immigration Attorney will schedule prepare the child (and the adult accompanying the child, if any) for the Green Card interview.

Frequently Asked Questions about Green Card for Child

How long will a Green Card for the Child of a US Citizen last?

The Green Card status issued to the Child of a US Citizen will be issued for life. The Green Card itself, just like a passport, expires every 10 years and is easily renewable. If your Green Card expires, it does not mean you have lost your Green Card status. It just means you need to take a new picture so that a new Green Card can be printed for you.

Green Card for Parent of US Citizen

Green Card for Parent of a US Citizen

US Citizens with foreign parents (mother and father) can apply for their parent’s Green Cards. A Green Card will give the foreign parent permission to live and work in the US on a permanent basis. For more information about Family Green Cards for the parent of a US Citizen, call our office to speak to one of our immigration lawyers.

Green Card Benefits for the Parent

1. Live in the United States.

Your parents will be able to live legally in the United States.

2. Work in the United States.

Your mother or father will be able to legally work in the USA.

3. Social Security Number

Your parent(s) will be able to receive Social Security Number(s).

4. Driver’s License

Your parent(s) will be eligible to apply for a State Driver’s License.

5. Eligibility to Apply for US Citizenship

One of the major benefits a Green Card offers is that a Green Card opens the door to apply for US Citizenship. After being a Green Card holder for 5 years, your mother and father may apply for US Citizenship.

6. Parent can apply for a Green Card for other family members

Once your parent(s) has a Green Card, your parent(s) may apply for a Green Card for his/her spouse and any other child of your parent.

Green Cards for Parent Requirements

There is one main requirement when a US Citizen applies for a Green Card for his/her foreign parent:

The US Citizen must prove that his/her parent is actually his/her parent. This is normally proven with the birth certificate of the US Citizen son/daughter who is applying for the foreign parent’s Green Card.

Green Card for Parent Application Process

There are two different ways to apply for a foreign parent’s Green Card. Option #1 is used when the foreign parent already lives in the US. Option #2 is used when the foreign parent lives outside the US.

Option #1

When the foreign parent already lives in the USA, the Green Card application process is done entirely inside the USA. The legal name for this process is Adjustment of Status.

The Green Card process for a foreign parent that currently lives in the United States is as follows:

Step 1: Document Checklist

Once you hire our law firm, our immigration attorney will provide you with a detailed checklist of the documents needed to prepare your parent’s Green Card application. This checklist is the most important part of the application because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare Green Card Application

Once you and your parent have provided our office with the required documents, the Immigration Lawyer will prepare and submit the Green Card application to the US Government (USCIS).

Step 3: Work and Travel Permit

Once your parent’s Green Card application has been submitted, your parent may be eligible to receive a work and travel permit. With this permit, your parent can receive a Social Security Number and work legally in the US while the Green Card application is pending. After the work and travel permit is issued, then we wait for USCIS to schedule the parent’s Green Card interview.

Step 4: Green Card Interview for Parent

The last step of the process is the parent’s Green Card interview. USCIS will interview the foreign parent and the US Citizen son/daughter who is petitioning for the Green Card. The purpose of this interview is for a US Government Officer to review the Green Card application and to confirm that the parent is really the parent of the US Citizen son/daughter. This interview is done inside the USA at a US Government (USCIS) office. Prior to your appointment, the Immigration Lawyer will prepare you and your foreign parent for the Green Card interview. From time to time, the interview requirement is waived and no interview is required.

Option #2

When the foreign parent lives outside the USA, the Green Card process includes 2 separate applications. Application #1 is filed inside the USA. Application #2 is filed outside the USA, at the US Embassy in the country where the foreign spouse lives. The legal name for this process is Consular Processing.

The Green Card application process when the foreign parent lives outside the USA is as follows:

Step 1: Document Checklist

Once you hire our law firm, our immigration lawyer will provide you with a very specific checklist of the documents needed to prepare the parent’s Green Card application.

Step 2: Prepare and Submit Application # 1

Once you and your parent have provided our office with the required documents, the lawyer will prepare and submit Application #1. Then we wait for an approval of Application #1 before moving forward.

Step 3: Prepare and Submit Application #2

Once Application #1 is approved, we start Application #2. Our immigration lawyer will prepare and submit Application #2 to the National Visa Center (US Embassy). Then we wait for the US Embassy to schedule an interview appointment for the foreign parent. This interview will be held at the US Embassy in the country where the foreign parent lives. The US Citizen son/daughter is not required to attend the interview at the US Embassy.

Step 4: Green Card Interview at US Embassy

Application #2 ends with a Green Card interview for the foreign parent. The purpose of this interview is for a US Government Officer to determine that the application is complete and to confirm that the foreign parent and the US Citizen parent are really related. This interview is done at the US Embassy, outside the USA, in the country where the foreign parent lives. Prior to this interview, our immigration attorney will schedule an appointment to prepare the foreign parent for the Green Card interview.

Green Card for Same-Sex Spouse

US Citizens in a same sex marriage or an LGBT marriage may apply for a Green Card for their foreign spouse. A Green Card will give the foreign spouse permission to live and work in the US on a permanent basis. Legally married same sex couples are eligible for the same US Immigration benefits that are available to opposite sex married couples. Therefore, US Citizens are eligible to get a Green Card, also known as Legal Permanent Residency, for their same sex or LGBT spouse. The main requirement is that you be married in a place where gay marriage or LGBT marriage is legally permitted. These places include Texas, any other state in the USA, or even another country where same sex marriage has been legalized, including Mexico, Canada, Colombia and Spain among others. Our Immigration Lawyers have experience obtaining Green Cards for same sex marriages.

Green Card Benefits for the Same-Sex Spouse

1. Live and Work in the United States

Your same sex spouse permission will be able to live and work legally in the United States.

2. Education

With a Green Card, your spouse can enroll in schools in the US without the need to apply for a Student Visa.

3. Social Security Number and Driver’s License

With a Green Card in hand, your spouse will be eligible to apply for a US Driver’s License and a US Social Security Number.

4. Eligibility for US Citizenship

One of the major benefits of a Green Card is that it opens the door to applying for US Citizenship. The foreign spouse may apply for US Citizenship 3 years after having obtained a Green Card.

Green Cards for Same-Sex Spouse Requirements

When applying for a Green Card as the same sex spouse of a US Citizen, there are 2 main requirements:

1. You must be legally married.

A legal marriage is one that is officially recognized by the government of the state or country where you got married. Therefore, you must be married in a place that allows Gay Marriage or LGTB marriage. A government issued “marriage certificate” showing that the marriage is official proves your marriage is legal. Keep in mind that you do not need to get married in the United States. Getting married in another country also works so long as the place where you get married has legalized LGBT Marriage. If you have this, then US immigration law will make you eligible to apply for a Green Card just as if you were married to someone from the opposite sex. The immigration Lawyers in our office can help you determine if you the place where you plan to get married has legalized marriage for gay, lesbian, bisexual and transgender people.

2. Your marriage must be “bona-fide”.

What is a bona-fide marriage? A bona-fide marriage is one where the spouses got married for the purpose of forming a family and living like a family. The words bona-fide mean real and without the intention to deceive. In more simple terms, you can only apply for a Green Card if your real primary intention is to be married.

Green Card for Same-Sex Spouse Application Process

There are two different ways to apply for a foreign spouse’s Green Card. Option #1 is used when the foreign spouse already lives in the US. Option #2 is used when the foreign spouse lives outside the US.

Option #1 – Foreign Spouse Lives in USA

When the foreign spouse already lives in the USA, the Green Card application process is done entirely inside the USA. The legal name for this process is “Adjustment of Status.”

The Green Card process for a foreign spouse that currently lives in the United States is as follows:

Step 1: Document Checklist

The first thing our Immigration Lawyer will do is provide you with a detailed checklist of the documents needed to prepare your spouse’s Green Card application. This checklist is the most important part of the application because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare Green Card Application

Once you and your spouse have provided our office with the required documents, the Immigration Lawyer will prepare and submit the Green Card application to the US Government (USCIS).

Step 3: Work and Travel Permit

Once your spouse’s Green Card application has been submitted, your spouse may be eligible to receive a work and travel permit. With this permit, your spouse can receive a Social Security Number and work legally in the US while the Green Card application is pending. After the work and travel permit is issued, then we wait for USCIS to schedule an interview appointment for both spouses.

Step 4: Green Card Interview for Spouse

The last step of the process is the Green Card interview. The purpose of this interview is for a US Government Officer to review your Green Card application and to confirm that you really are married with the intention of living as a family. This interview is done inside the USA at a US Government (USCIS) office. Prior to your appointment, the Immigration Attorney will prepare you and your spouse for the Green Card interview.

Option 2 – Foreign Spouse Lives in USA

When the foreign spouse lives outside the USA, the Green Card process includes 2 separate applications. Application #1 is filed inside the USA. Application #2 is filed outside the USA, at the US Embassy in the country where the foreign spouse lives. The legal name for this process is Consular Processing.

The Green Card application process when the foreign spouse lives outside the USA is as follows:

Step 1: Document Checklist

The first thing our Immigration Attorney will do is provide you with a very specific checklist of the documents needed to prepare the foreign spouse’s Green Card application. This checklist is the most important part of the application, because it lays out exactly what will be needed to apply for the Green Card.

Step 2: Prepare and Submit Application # 1

Once you and your spouse have provided our office with the required documents, the Immigration Attorney will prepare and submit Application #1. Then, we wait for an approval of Application #1 before moving forward.

Step 3: Prepare and Submit Application #2

Once Application #1 is approved, we start Application #2. Our Immigration Lawyer will prepare and submit Application #2 to the National Visa Center (US Embassy). Then we wait for the US Embassy to schedule an interview appointment for the foreign spouse. This interview will be held at the US Embassy in the country where the foreign spouse lives. The US Citizen spouse is not required to attend the interview at the US Embassy.

Step 4: Green Card Interview at US Embassy

Application #2 ends with a Green Card interview for the foreign spouse. The purpose of this interview is for a US Government Officer to determine that the application is complete and to confirm that the foreign spouse and the US Citizen spouse are really married with the intention of living as a family. This interview is done at the US Embassy, outside of the USA, in the country where the foreign spouse lives. Prior to this interview, our Immigration Attorney will schedule an appointment to prepare the foreign spouse for the Green Card interview.

Frequently Asked Questions about Same-Sex Spouse

Can I apply for my spouse’s child from a previous marriage, even if that marriage was not a same sex marriage?

Yes, a US Citizen in a same-sex marriage may apply for a Green Card for the child of his/her foreign spouse. The main requirement is that the marriage between the US Citizen and the foreign spouse needs to take place before the child’s 18 birthday. This is true even if the Non-US Citizen Spouse was previously married to someone from the opposite sex.

What is a Fiancé Visa?

The K1 Visa, also known as the fiancé visa, is issued to the fiancé of a US Citizen who plans to come to the USA to get married. Once you are married, your US Citizen spouse should apply for your Green Card (legal permanent residency) so that you may live permanently in the USA. The fiancé visa is only used when the fiancé who is not a US Citizen needs to come to the USA to get married. If the non-US Citizen is already in the USA, then the fiancé visa is not necessary because applying directly for a Green Card would be more appropriate.

Requirements of the Fiancé Visa

The K1 Fiancé Visa has 4 main requirements:

1. You must be engaged to be married to a US citizen;

2. You and your fiancé must intend to get married in the USA;

3. You and your fiancé must be single, in other words, you can not apply for a K1 fiancé visa to marry one person, if you are currently married to someone else;

4. You and your fiancé must have met each other in person, at least once within the last 2 years. Exceptions do apply to this requirement. If you do not meet this requirement and want to know if you can be exempt from this requirement, contact immigration attorney Brian West for a consultation.

What is the K1 Visa Application Process?

The application process for the K-1 Visa is a 2-step process. In step 1, USCIS must approve your fiancé visa application. In step 2, USCIS forwards your approval to the US Embassy where your fiancé will have the K1 visa interview.

Step 1

K-1 Document Checklist: The first thing our immigration attorney will do is provide you with a detailed checklist of the documents needed to prepare the fiancé visa application. This checklist is the most important part of the application, because it lays out exactly what will be needed from you and your fiancé to apply for the visa. Once you’ve provided us with the required documents, we will prepare and file the K1 application with USCIS.

Step 2

Just like in Step 1, our immigration attorney will provide you with a second tailored document checklist needed to prepare Step 2 of the K-1 Visa application. Once you’ve provided us with your documents, we will prepare and submit Step 2 of your K-1 Visa to the US Embassy in the home country of the fiancé who lives outside the USA.

K1 Visa Interview

Once your application has been submitted, the fiancé who is not a US Citizen will be scheduled for an interview at US Embassy. The purpose of this interview is to confirm that you and you fiancé are truly engaged to be married and meet all the other K1 visa requirements. Prior to your K1 visa interview, our immigration attorney will schedule an appointment to help prepare you for the interview.

What is the K1 Visa Duration?

The K1 Visa is a one-time use visa that expires 90 days after you use it to enter the country. You are required to get married within that 90-day window.

What is the K1 Visa Renewal?

There is no need to renew this visa because once you enter the USA with the fiancé visa and you get married, then you will apply for a Green Card.

Frequently Asked Questions About the Fiancé Visa

1. How long does it take to get a fiancé visa?

A good estimate is 6 to 9 months starting from the time that the visa application was filed. However, the time can vary depending on your specific circumstances. So, the best thing to do is to schedule a meeting with Attorney Brian West to discuss your case and to get an estimate of how long your case will take. The second-best thing to do, is to avoid making wedding plans until your K1 visa has been approved.

2. Can you work in the USA with a fiancé visa?

Yes, the fiancé visa allows you to apply for a work authorization permit known as an EAD (Employment Authorization Document). To work, you need to apply for the EAD first.

What is a Spouse Visa?

The K3 Visa, also known as the spouse visa, allows the spouse of a US Citizen to come to the USA while the Green Card application is pending. So instead of waiting outside the USA for Green Card to be approved, with the K3 visa you can wait inside the USA. The spouse visa is only used when the spouse who is not a US Citizen lives outside the USA. If the non-US Citizen is already in the USA, then spouse visa is not necessary.

What are the Requirements of the Spouse Visa?

The K3 Spouse Visa has 4 main requirements:

1. You must be legally married to a US citizen; and

2. You and your US Citizen spouse must have already begun the Green Card application process. If you have not already done this, Immigration Lawyer Brian West can do this part for you before the K3 visa application is filed;

What is the K3 Visa Application Process?

The K3 visa application is a 2-step process. In step 1, USCIS must approve your spouse visa application. In step 2, USCIS forwards the approval to the US Embassy where your spouse will have the K3 visa interview.

Step 1

K3 Document Checklist: The first thing our immigration attorney will do is provide you with a detailed checklist of the documents needed to prepare the spouse visa application. This checklist is the most important part of the application, because it lays out exactly what will be needed from you and your spouse to apply for the visa. Once you’ve provided us with the required documents, we will prepare and file the K3 application with USCIS.

Step 2

Just like in Step 1, our immigration attorney will provide you with a second tailored document checklist needed to prepare Step 2 of the K3 Visa application. Once you’ve provided us with your documents, we will prepare and submit Step 2 of your K3 Visa to the US Embassy in the home country of the non-US Citizen spouse.

K3 Visa Interview

Once your application has been submitted, the spouse who is not a US Citizen will be scheduled for an interview at a US Embassy. The purpose of this interview is to confirm that you and your spouse are legally married and that your Green Card application is pending. Prior to your K3 visa interview, our immigration attorney will schedule an appointment to help prepare you for the interview.

What is the K3 Visa Duration?

The K3 Visa has a 2-year duration. It can be used for multiple entries, in other words, the K3 allows you to enter and leave the US as often as you like.

What is the K3 Visa Renewal?

You can extend the K3 visa in increments of 2 years. However, there is generally no need to renew this visa because your Green Card application should be adjudicated before the K3 expires.

Frequently Asked Questions About the Spouse Visa

1. How long does it take to get a Spouse visa?

A good estimate is 6 to 9 months starting from the time that the visa application was filed. However, the time can vary depending on your specific circumstances. So, the best thing to do is to schedule a meeting with Attorney Brian West to discuss your case and to get an estimate of how long your case will take.

2. Can you work in the USA with a fiance visa?

Yes, the fiance visa allows you to apply for a work authorization permit known as an EAD (Employment Authorization Document). To work, you need to apply for the EAD first.