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CONDITIONAL PERMANENT RESIDENCY AND DIVORCE

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One of the most common immigration family petitions involves spouses of U.S. citizens. Generally, the process is relatively straight-forward: your spouse files a petition on your behalf and you can file an application for a green card at the same time. You have to provide evidence that your marriage is bona-fide, and that you are admissible in the United States. If your application is approved, you will receive a green card in the mail that is valid for two years and is given on a conditional basis. This provision in the law was created in order to prevent fraud in marriage cases and to ensure that people don’t take advantage of the immigration law.

Generally, a conditional permanent resident has to file Form I-751 with USCIS within 90 days immediately preceding the two year anniversary of the date when the conditional permanent resident obtained her status. I-751 petition has to be filed jointly with the U.S. spouse, who has to appear for an interview with you. If USCIS is satisfied that the marriage is bona fide, it will approve the petition, the conditions will be removed, and a new green card will be issued valid for 10 years.

Problems arise when your relationship does not work out as planned. What are you supposed to do if the relationship breaks down and you get separated or divorced, or if your spouse refuses to file a joint petition with you?

The conditional permanent resident can request a waiver of the joint filing requirement and file I-751 petition by herself in one of the following circumstances:
1. If her departure from the United States will result in extreme hardship;
2. The marriage was entered in good faith, but it was terminated through divorce or annulment;
3. The marriage was entered in good faith, but your spouse subsequently died;
4. The marriage was entered in good faith but the U.S. citizen spouse or parent battered the conditional permanent resident or child or subjected them to extreme cruelty.

You do not have to be officially divorced to apply for a waiver based on extreme hardship or battering, and it can be filed either before or after the two-year period has expired. Unlike those kinds of waivers, a waiver of the joint filing requirement based on divorce is only available after the parties have already divorced.

There might be circumstances where the parties are separated or have filed for a divorce prior to the two-year mark. In such cases, there are several options available.

If your spouse refuses to file a joint I-751 petition with you, and you are separated or filed for a divorce, you can file I-751 waiver petition by yourself. It needs to be filed timely, within 90 days of the two-year mark. After it’s processed, USCIS will issue a Request for Evidence (“RFE”) for additional documentation regarding your divorce and will give you 87 days to respond. Hopefully, within 87 days you will have your divorce decree, which you will mail to USCIS. After its receipt, USCIS will review the petition and will determine whether you established that your marriage was bona fide.

If your divorce is not yet final before the RFE deadline, your I-751 petition will be denied and your case will be referred to the immigration court. You will then be given an opportunity to establish your eligibility for a waiver in front of an immigration judge. If you need time to finalize your divorce, you can request a continuance from the immigration judge.

Suppose you and your spouse filed a joint I-751 petition, but you are legally separated or already filed for divorce, what are the options here? Just because your marriage is in trouble, does not mean that your petition will be automatically denied. However, that might raise red flags regarding your good faith when you got married, so you should be prepared to provide a lot of evidence showing that your relationship was genuine.

In case of a jointly filed petition that makes it clear that the parties are separated or filed for a divorce, USCIS will also issue an RFE requesting a divorce or annulment decree and asking whether the parties would like to have their petition treated as a waiver petition instead. Upon receipt of the necessary documents, the I-751 will be converted into a waiver petition. This is a simplified process allowing the conditional permanent resident to buy some time to finalize the divorce proceedings.

Depending on the strength of the evidence showing the bona fides of the marriage, the case will be approved, denied or assigned to an in-person interview. If the case is denied, it will be referred to the immigration court where you would be able to present your case again.

If you filed a joint petition and your relationship was fine at the time, but later you got separated or divorced, you will have to notify USCIS of the latest developments by mail.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

Posted in: Conditional Permanent Residency, Green Card

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9TH CIRCUIT COURT ALLOWS ARIZONA SHERIFF TO CONTINUE RAIDS AGAINST UNDOCUMENTED WORKERS

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The immigrant advocacy organization Puente Arizona, along with other plaintiffs, filed a law suit in a federal court challenging some provisions of the Arizona legislation prohibiting using a false identity to obtain employment. The provisions in question are Arizona statutes A.R.S. § 13-2008 and § 13-2009, which target undocumented workers. The provisions were added in 2008 as amendments to the existing Arizona aggravated identity theft statute.

The law suit was filed in response to a number of workplace raids by Maricopa County Sheriff Joe Arpaio which resulted in more than 700 arrests of undocumented workers accused of employment-related identity theft. The plaintiffs believe that the sheriff was “illegally terrorizing” the undocumented workers. The suit alleges that the Arizona provisions are preempted by the federal immigration policy and violate the Equal Protection Clause of the U.S. Constitution. 

The district court found that the Arizona statute was likely to be found unconstitutional and granted a preliminary injunction preventing the Arizona officials from enforcing the challenged provisions. It has not, however, reached the merits of the petitioner’s argument and the case is still pending in the district court. Arizona then filed an interlocutory appeal in the 9th Circuit Court challenging the injunction.

The goal of the Arizona bill was two-fold: to prevent undocumented workers from using somebody else’s identity to obtain employment and curb the ever growing problem of identity theft in other areas. The majority of prosecutions under the new identity theft provisions happened against unauthorized workers who used false documents to secure employment. A small percentage of cases involved U.S. citizens who used false documents for some other, non-immigration related purposes, like hiding a criminal conviction.

The 9th Circuit Court held that since at least some of the statute’s provisions had obvious constitutional applications and applied equally to unauthorized aliens and U.S. citizens, they were not in conflict with the Constitution. The Court stated: “one could not tell that the identity theft laws undermine federal immigration policy by looking at the text itself.”

The Court reversed the District Court findings and vacated the preliminary injunction. The ruling means that the raids on unauthorized workers in Arizona will probably resume.

Posted in: 9th Circuit Cases

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NATURALIZED U.S. CITIZEN LOSES HIS CITIZENSHIP BECAUSE OF TWENTY-YEAR-OLD CONVICTION

     The 9th Circuit Court of Appeal has recently decided United States v. Teng Jiao Zhou, a case holding that a U.S. citizen naturalized 20 years ago could be stripped of his U.S. citizenship for an offense committed prior to his naturalization.

     Zhou moved to the U.S. from China in 1983 and applied for naturalization in 1993. During the same year, Zhou was charged with robbery, kidnapping and extortion of his former business partner.  He was convicted of robbery and false Imprisonment and sentenced to six years for false imprisonment and concurrent term of two years for robbery on November 21, 1994.

     After his offense but prior to the date of the conviction, Zhou filled in one of the naturalization forms which asked whether he “knowingly committed any crime or offense, for which [he] ha[d] not been arrested?” Zhou responded “no.” He proceeded to have his naturalization interview and became a U.S. citizen in March of 1994.

     Apart from the conviction, Zhou remained out of trouble for the next twenty years, enjoying his U.S. citizenship status. Unexpectedly, in March 2013, the government filed a complaint to revoke Zhou’s naturalization. The government’s argument was that the 1994 conviction showed that Zhou lacked the good moral character necessary for a successful naturalization application.

     Good moral character for the five years immediately preceding the naturalization application is one of the requirements for citizenship. Lack of good moral character can be established when the applicant “[c]ommitted unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts . . . . 8 C.F.R. § 316.10(b)(3).”

     The Court found the facts of the case unusual in that even though the offense was committed prior to the naturalization application, the arrest, conviction and sentencing all happened after Zhou became a citizen.  Despite various arguments to the contrary by Zhou, the Court held that since the offense in question happened within the five-year statutory period necessary for naturalization, the fact that the arrest and conviction occurred outside of the five-year mark was of no relevance to the case. Zhou committed a crime of moral turpitude within five years prior to his naturalization application, and that misstep alone was enough to render him ineligible for citizenship in the first place.

     The government never explained why they waited twenty years to bring the action against Zhou and such decision seems unconscionable, especially considering the fact that Zhou never committed any other crime in the last two decades. The Court indicated that the Zhou case would have made a strong case for laches, which is a type of defense in a case where there is unreasonable delay in the plaintiff’s bringing of the claim. Had Zhou raised that defense before the Court, It would have been possible for him to prevail against the government.

Posted in: Naturalization

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TRAVELING ABROAD AS A PERMANENT RESIDENT

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You finally received your green card in the mail! It’s a momentous occasion in the life of every immigrant: all the anxiety and worries are over and you can relax and enjoy your life in the United States. While there are many rights that a U.S. permanent resident possesses, there are still come pitfalls of which you should be aware. One of them is traveling abroad.

Generally, a permanent resident is free to travel abroad for a brief period of time, so it is perfectly fine to visit relatives in your country or go on vacations. As long as the trip is shorter than a year, most green card holders have nothing to worry about, especially if they have established significant ties to the U.S. The main concern that immigration officers have is whether you intended to make the U.S. your permanent home. That can include renting or owning a house in the U.S., being employed in the U.S., paying U.S. taxes, maintaining a bank account or having a business in the U.S. If you fail to put down roots in the U.S. even a trip shorter than a year can appear problematic to an immigration officer and you may be found to have abandoned your green card. While such instances are relatively rare, you should be aware of such possibility and make sure that you can present evidence that supports the permanent nature of your life in the U.S.

If you know that your trip abroad will last longer than a year, U.S. Immigration and Citizenship Services (“USCIS”) advises that you should obtain a re-entry permit first. The re-entry permit would allow a permanent resident to return to the U.S. after a protracted trip abroad that is no longer than two years. The re-entry permit does not guarantee your entry in the U.S., it only shows your intention to maintain your permanent residency. The re-entry permit can be obtained by filing Form I-131 with USCIS with a filing fee of $360.

If your trip abroad turns out to be longer than two years, you are considered to have abandoned your permanent residency and will have to apply for a returning resident status by filing Form DS-117 with supporting documents at the nearest embassy.

The supporting documents need to show that you (1) were a lawfully admitted permanent resident of the United States at the time of departure; (2) at the time of departure, you had the intention of returning to the United States; (3) while residing abroad, you did not abandon the intention to return to the United States; and (4) are returning from a temporary residence abroad; or if the stay was long-lasting, it was caused by reasons beyond your control.[1]

There are certain factors that assist immigration officers in their decisions. First, in assessing whether the visit was temporary, the officer will look at the duration of the trip. Second, the extent of your ties to the U.S. mentioned above will be a significant concern. As already mentioned, such ties can be family connections, job, property holdings, business or bank account in the U.S. Other examples can include taking only leave of absence in lieu of resignation in social clubs like Kiwanis or Rotary, donating to local charity within your township, or paying local property taxes.

Additionally, your intent in regards to which country you consider your home and the expected length of the trip is important.[2] However, just having intent to eventually return to the U.S. is not enough in and of itself. It has to be coupled with concrete actions of consistently maintaining the permanent bond with the U.S. For instance, living in another country for 11 months of the year and coming to the U.S. for a month is not enough to maintain a green card without some additional ties to the U.S.[3]

One of the other factors to be considered is the purpose for your trip. If the period of absence from the U.S. is extended it still can be viewed as “temporary” if the termination date of that period can be fixed by some early event.[4]

In other words, when you plan a trip, you have to plan to return within a relatively short period of time. If there are some circumstances beyond your control that require the extension of the trip, you can do that, as long as you intend to return to the U.S. as soon as possible.

Each application for returning resident status is considered on a case by case basis and is a factual inquiry. The application has to present a clear picture of why you had to leave the United States and extend your stay abroad and what ties you maintain in the United States.

[1] Foreign Affairs Manual, 9 FAM 42.22 N1.2.

[2] Matter of Castro, Interim Decision #2245 (BIA 1973)

[3] Matter of Kane, Interim Decision #2371 (BIA 1975)

[4] Matter of Huang, Interim Decision #1988 (BIA 1988)

 

Posted in: Green Card, Travel

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P-1A VISA FOR PROFESSIONAL VIDEO GAME PLAYERS

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Pro-gaming, a.k.a. professional video gaming or eSports, exploded in popularity in the recent years. The most popular eSports are multiplayer video game competitions between professional players. The competitions cover fight games, first-person shooters, real time strategy or multiplayer online battle arena games, like League of Legends.

Until recently, the players from other countries did not have a clear visa option to come to the United States to train or to participate in competitions. Many players arrived on B-2 tourist visas or under visa waiver programs (“VWP”). However, utilizing a tourist visa or a VWP is not an appropriate avenue for eSports competitors because it does not allow visitors to earn money while competing. Tourist visas are designed for visiting temporarily for specific purposes, and if a B-1 visa holder engages in activities like earning money, they are in violation of immigration laws and can be denied a visa in the future.

Generally, the United States immigration laws provide a clear path for international athletes to come to the U.S. in order to compete in athletic competitions at the highest levels. They can qualify for a visa called P-1A which is issued only to internationally recognized athletes. Until recently such visas were only issued to athletes engaged in traditional sports like soccer, hockey, baseball, etc.  Even though thousands of professional athletes come to the United States on P-1A visas, it was virtually impossible for electronic sports players to obtain them, since United States Citizenship and Immigrations Services (“USCIS”) did not recognize eSport payers as athletes. Luckily, recent developments in immigration decisions opened up a way for international eSports players to come to the U.S.

Specifically, things changed in 2013, when a League of Legends player from Canada got the first P-1A visa to train and compete in the League of Legends tournament in California. This paved the way to other internationally recognized eSport players to come to the United States for up to five years.  This visa allows the players to train in the U.S., participate in competitions and get paid. The stay can be extended up to total of 10 years.

In order to qualify for P-1A visa a foreign player has to submit the following documentation along with a petition by a U.S.-based team which is going to employ and sponsor them:

  • A written consultation from a eSport labor organization with expertise in the specific gaming field. This consultation should be an advisory opinion regarding the nature of the work to be done and the player’s qualifications;
  • A contract with a U.S. eSports league or team;
  • An explanation of the event and itinerary;
  • Documentation of at least two of the following:
    • Evidence of having participated to a significant extent in a prior season with a major United States eSports league
    • Evidence of having participated to a significant extent in international competition with a national team
    • Evidence of having participated to a significant extent in a prior season for a U.S. college or university in intercollegiate competition
    • A written statement from an official of a major U.S. eSports league or an official of the governing body of the eSport which details how the player is internationally recognized
    • A written statement from a member of the eSports media or a recognized expert in the eSport which details how the player is internationally recognized
    • Evidence of the player’s international ranking
    • Evidence that the player has received a significant honor or award in the specific game.

Once the petition is approved, a player will have to apply for a visa at a U.S. consulate abroad. Right now, as of end of March, 2016, it takes USCIS only two weeks to process the application. If a player is in the United States on a different visa, they can apply for a change of status. A player can also change sponsors; they can also petition for an extension of stay. Since P-1 visa is a nonimmigrant intent visa, a player has to demonstrate that they have an intent to return return to their home country after the expiration of their P-1 status. Such intent can be shown through presenting evidence of property holdings in the home country, family ties, employment contracts, business, etc. Establishing non-immigrant intent is as important for receiving this visa as filing a proper petition and proving a player’s qualifications.

Such visas are very complex, and numerous players are still denied their visas because of improperly filed petitions and lack of evidence. It is important to consult with a U.S. immigration attorney prior to applying for a P-1A visa.

Posted in: P-1 Visa

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PERMANENT RESIDENCE FOR IMMEDIATE RELATIVES OF U.S. CITIZENS

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The United States immigration laws encourage family unity by providing a way for immediate relatives of U.S. citizens to gain their permanent residency. Immediate relatives include spouses, unmarried children under the age of 21 and parents of U.S. citizens who are over the age of 21.

There are a couple of options for the foreign relatives depending on where they are: abroad or in the United States. One option involves applying for adjustment of status in the United States; another applying for an immigrant visa at a U.S. consulate abroad (“consular processing.”)

Option 1: The foreign relative is present in the U.S. after a legal entry. The process towards permanent residency is started by the U.S. citizen filing a Petition for Alien Relative, Form I-130, with the United States Citizenship and Immigration Services (“USCIS”). Form I-130 establishes the U.S. citizen’s familial relationship with the relative (“beneficiary”), and indicates their intention to help their relative immigrate to the United States.

There is no waiting in line for immediate relatives to get their visas, so they can apply for their green cards immediately. In order to apply for a green card, the foreign relative has to file Application to Adjust Status, Form I-485, with USCIS. Form I-485 can either be filed at the same time as Form I-130, or at any time after. At the same time, the foreign relative can apply for employment authorization and advance parole document allowing them to travel abroad.

After filing their application for adjustment of status, the foreign relative cannot travel abroad unless they received the advance parole document from USCIS. It’s imperative that foreign nationals be aware of this rule and refrain from traveling abroad without prior authorization, as that would mean that they abandon their permanent residency application and have to start the whole process from scratch.

There are certain commitments that the U.S. citizen petitioner undertakes at the time when the foreign relative applies for a green card. The petitioner has to submit Form I-864, Affidavit of Support, which demonstrates that the petitioner has enough financial means to support the foreign relative and ensure that the foreign relative does not become dependent on state, federal or local public benefits. If at some point the foreign relative does receive some public benefits, the agency providing the benefits may demand the repayment of the costs from the petitioner.

Option 2: The foreign relative is outside of the U.S. This process also begins with filing of Form I-130, Petition for Alien Relative, with USCIS. After I-130 is approved, a visa number becomes immediately available to the beneficiary, and they can apply for an immigrant visa at a U.S. consulate of their residence country.

The process for consular processing is as follows. Upon approval of the I-130 petition, the case is forwarded to the Department of State’s National Visa Center (“NVC”), which then notifies the petitioner and beneficiary and issues a packet of forms and instructions. The beneficiary will need to complete some required documents, pay the appropriate fees, undergo a medical examination, and get a police clearance. As with adjustment of status, the petitioner is also required to submit Form I-864, Affidavit of Support.

After all the documents are processed, the beneficiary will receive a written notification from the U.S. consulate with an interview date. The interview is necessary so that the consulate verifies the content of the application and reviews medical, criminal and financial records to make sure that the beneficiary is admissible to the United States. Upon successful completion of the interview, the beneficiary will be issued an immigrant visa.

Unfortunately, there is no right to have an attorney present at the consular interview. If the beneficiary is denied a visa during consular processing, there is no appeal process. An advisory opinion can be requested through the Secretary of State at the U.S. Department of State in Washington D.C.; however, even if a favorable advisory opinion is issued, it is not binding on the consular officer. By contrast, the foreign national can appeal a USCIS decision on an adjustment of status application in the U.S.

It should be noted that the choice between adjustment of status and consular processing is not set in stone. It is possible to change the selection from adjustment of status to consular processing and vice versa.

Posted in: Green Card

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CAN A STUDENT PRESENT IN THE U.S. ON AN F-1 VISA OPEN A BUSINESS?

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Generally, F-1 visas are designed for foreign nationals who come to the United States to engage in a full course of study. Such studies can range from elementary school attendance to post-doctorate programs, including accredited language training programs. Student visas are relatively easy to get, as long as students can demonstrate that they: 1) Have residence abroad that they have no intention of abandoning, 2) Intend to depart from the United States as soon as their status expires, and 3) Have sufficient funds to stay in the United States for the duration of their school enrollment. Because F-1 visas are meant for individuals pursuing education on a temporary basis, it is fairly restrictive in terms of what activities a student may engage in.

As a rule, off-campus employment, including any kind of self-employment, is prohibited without specific approval by United States Citizenship and Immigration Services (“USCIS”). Any unauthorized employment will be considered a violation of visa status and will make a student removable.

Students can engage in on-campus employment without prior approval if it’s performed on school premises or at an off-campus location that is educationally affiliated with the school. Such employment must be an essential part of the student’s educational program and cannot exceed 20 hours a week while school is in session. However, a student may work on-campus full time if the school is not in session.

After a student finishes a full year of studies and is doing well academically, they may engage in off-campus practical training directly related to their major area of studies and authorized by a school official. A student eligible for off-campus practical training may start a business and be self-employed, as long as the business is related to their degree program.

In short, current regulations allow employment only if it’s directly related to the original goal of the F-1 visa, which is education. Any other kind of employment, including self-employment or volunteering, is prohibited.

Despite the limitations on self-employment, U.S. immigration law does not prohibit students from investing in their own business. Unfortunately, the line between self-employment and purely investor activities is often blurry. The Sixth Circuit Court of Appeals ruled that a student who opened his own ice-cream truck business violated the terms of his student visa. The student purchased the ice cream, stocked the trucks, and drove them in emergencies.[1] The student participated in the day-to-day running of the business and was therefore more than just an investor-manager.

It appears that starting and investing in a company is permissible, as long as a student does not work for the company, run the business, or receive any kind of compensation. The permissible activities include some limited preparation, preliminary steps and planning of the business. Any other management activities have to be performed by employees or partners who are authorized to legally work in the United States. As long as a student is a purely passive investor, they can receive dividends from their investment. In such circumstances, a student has to file an income tax return with the IRS.

Upon graduation, and provided that the company is operating under the supervision of another partner or a board of directors, the company can petition USCIS for an H-1B visa for the F-1 visa holder. H-1B visas are available for foreign nationals employed in a specialty occupation for which a Bachelor’s degree is required. More information about H-1B visas can be found on our website.

[1] Wettasinghe v. United States Department of Justice, Immigration & Naturalization Service, 702 F.2d 641 (U.S. App. 1983)

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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Posted in: Student Visa

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