Adjustment of Status, Children, Family Immigration, K-1 visa, K-2 visa

Green Cards for fiancee and her children

I am a US Citizen and would like to sponsor a green card for my fiancee. She has a 6-year-old child she adopted herself, and an 8-year old child who has a biological father in her home country. Can she bring her children to the US with her?

Yes, it might be possible. To begin, each child has a special requirement you need to be aware of:

  • Child 1: Adopted children need to be in custody of the adoptive parent, and need to have resided with the adopted parent for 2 years to be considered a “child” for immigration purposes. These 2 years or residing with the parent can happen before the child is adopted. You would need to show proof of the residency, so check to see if your fiancee has a court order or document showing the dates of custody.
  •  Child 2: many countries logically have special requirements to prevent children from being taken out of the country agains a biological parent’s wishes. You may need the biological father’s written notarized statement allowing his children to obtain a US visa and leave the home country. Check your country’s US Embassy page to see specifically what the embassy needs before allowing the children to travel.  Be careful – while some countries do not specifically list this requirement for a US visa, the process to obtain a child’s passport may require consent of both biological parents. Make sure to consult with the child’s biological parent to make sure all parties consent to the children traveling to the US.

If you’re able to satisfy each child’s special requirements, you can move forward with helping your fiancee and the children come to the US! Generally, there are two paths you could follow to get started (I discussed them in more detail here, and an attorney could discuss additional options depending on your particular circumstance.) Here is an overview of costs/timelines related to the 2 children of your fiancee:

Path A: You marry your fiancee anywhere in the world, and then petition for her, as your new wife to be a US Permanent Resident. You would also file petitions for the children at the same time. They would both be considered your step-children, and a step-child is considered a “child” for immigration purposes as long as “the child was under 18 when the step-relationship was created.” This means you would pay the $420 filing fee 3 times. Processing would take anywhere between 6 months to 1 year, and then all 3 would have a visa interview with the US embassy. There would be additional fees with the Embassy for all 3 people. If all went smoothly, all could then come to the US and would receive green cards.

Path B: You will begin by filing a K-1 visa petition for your fiancee, which takes around 4 – 9 months to be determined and would cost $340. Her children are able to be listed on her application because they are under 21 and unmarried, so there is only 1 fee to pay. They will attend her visa interview along with her (paying Embassy fees again for all 3 people), and if all goes well — travel with her to the US in K-2 status. Next, you would marry within 90 days, and then your new wife and both children would apply for an adjustment of status. This would require a large petition, showing proof of the marriage and of each family member’s relationship. There would be a separate petition for your wife and each child, and 3 government processing fees of $1070. 

This is a general overview of the process. Speak with an attorney so that you can describe your situation in detail to make sure no other complications would arise. Best Wishes!

DACA, EAD Work Permit

What is going on with 3 year work permits? Who needs to return EAD cards to USCIS?

Yes, due to a court injunction, 3-year work permits for some DACA (Deferred Action for Childhood Arrivals) recipients need to be returned. USCIS posted this week that DACA recipients who received a three-year Employment Authorization Document (EAD) after February 16, 2015, received it in error, and must be returned. Keep in mind that over 100,000 3-year EAD cards were issued before February 16, 2015, and these do not need to be returned.

If you have to return your three year EAD card, you should be eligible to have the two year EAD card re-issued.  If employed, notify your employer to update your I-9.

It is best to return the card and follow USCIS’s instructions because DACA will be terminated if card is not returned. Also, USCIS has stated it will make house calls to pick up unreturned cards.

Send your card by July 30, 2015 via certified mail (so you can track receipt) to:
DHS
USCIS
Attn:  ACD DACA
PO Box 87730
Lincoln, NE 68501-7730

Adjustment of Status, B Visitor Visa, Family Immigration, K-1 visa

I am a US Citizen and want to marry my Canadian boyfriend. How can I get him to live in the US with me?

Q: I am a US Citizen and want to marry my Canadian boyfriend. How can I get him to live in the US with me?

A: Yes, you have a couple options . . .

-1- You could apply for a K-1 fiancé visa for your boyfriend. This would let him enter the US for 90 days and you would get married during this time. After you married, you spouse could stay in the US apply to adjust status to a permanent resident (aka get a green card!) For this path, you would start by filing an I-129f. This would be processed with USCIS, and then would be sent to NVC, and eventually to the US Embassy in Canada. It could take around 4-9 months.

 

-2- Another path is to marry your boyfriend overseas, and then after you’re married, you would file an i-130 to sponsor him as your spouse. In this scenario, he would wait in Canada for the I-130 to be approved, and then would enter the US and be able to immediately obtain a green card. This second process might cause a little longer wait in Canada, but it would have less filing fees.

 

An attorney could help you write out the options and organize all of the costs and timelines for you. Also, a word of caution: your boyfriend cannot obtain a B visitors visa if his intent is to come to the US, marry you, and remain in the US to adjust status.

Asylum, F-1, Family Immigration, TPS

I have a B1/B2 visa and fear going back to my country. What options do I have?

I originally come from Yemen and currently there is a civil war going on there. My brother is a US citizen and he is over 21. Can he petition for me?

Answer: While it is possible to change from a B visa to another visa type, you need to be first eligible for another visa.

TPS: The US will designate other countries for TPS, or temporary protected status for different reasons, including “ongoing armed conflict, such as civil war.” Yemen is not currently listed, but you can continue to check the TPS country list and read more about TPS here.

Asylum:  Asylum could possibly be an option, but it would depend on your specific story and facts. This is something an immigration attorney could help you with, after listening to your story in detail. A civil war in a country is not in itself reason for asylum. Check back soon, as I will be posting more details regarding asylum eligibility.

Adjustment through your brother:  It would take a long time for you to be able to obtain a green card based on your brother sponsoring you, and you would not have lawful status in the US while you waited. You can see the wait time by looking up the US Department of State’s most recent visa bulletin. A brother falls under the F-4 family sponsored category, and the priority date is October 2002, meaning those from Yemen in the F-4 category have been waiting 13 years.

Student visa: Another option is to apply to a University in the US. Do not enroll while in B1/B2 status, however, you can apply to a program, and have your school, or an attorney assist you with a change of status from B to F-1. A change of status can take 3-5 months, so be sure you have enough time before you B visa expires. Once the change of status is approved to F-1, you would be eligible to enroll.

Refugee, Travel Document

How long does it take to get a Refugee Travel Document?

Question: How long does it take to get a US Refugee Travel Document? I am planning on traveling outside the country around October or November.

Our Seattle clients have been waiting close to 4 months recently. The Phoenix lockbox seems slow these days. For certain reasons, you can expedite your travel application (severe financial loss, extreme emergent situation, humanitarian situation) If you think you meet one of these reasons you could put in a request to expedite with USCIS. The request to expedite takes about a week, and then USCIS asks for your proof and reviews it. An attorney could help determine if you have a strong case for expediting, and could help you with the process.

Family Immigration, K-1 visa

Can I sponsor my fiancee for a K-1 visa if she does not have a birth certificate?

I’m a U.S. citizen who plans to sponsor my fiancee, a Canadian citizen, for a K-1 Visa. She does not have a birth certificate. Will this pose a problem during the process?

When you begin the process and file the I-129f, the foreign national’s birth certificate is not required. A list of documents needed is found in theI-129f instructions . However, if the K1 is approved, at her visa appointment in Canada, she may need the birth certificate as proof of Canadian citizenship. Also, she would definitely need to submit a copy after she enters the US, marries you, and applies for an adjustment of status using the I-485. Look on the country reciprocity page to find exactly what type of document she needs to show birth in Canada.

F-1

F-1 Change of Status or travel?

Question: I have applied for change of status from h4 to f1. If I dont get an approval by November, I plan to travel to India for the F1 stamping. Can I travel to india when my application is still pending ? Are there any complications I need to be aware of ?

I think you have a good plan. Your change of status application will be deemed abandoned — but you won’t need the change of status since you’ll be returning to get a new F-1 visa stamp. Be sure you have your new I-20 from your school.

Another idea is to defer your admission and wait until your change of status is approved. You could do this if your H-4 visa has not expired. Talk with your international student adviser or international admissions representative about deferring.

 

Employment Immigration, F-1, Student Visa

I have an F-2 visa. How can I join a masters program or seek a job?

Question: I have an F-2 visa. How can I join a masters program or seek a job? I passed nursing License exam NCLEX but I am unable to get license because I don’t have a SSN.  I need a nursing license to get admitted into a Master’s of Nursing program.

You’re correct that you won’t be able to obtain a SSN and can’t work while in F-2 status. One idea is to try to explain your situation to admissions at the Nursing school. Maybe they will be able to admit you and issue a new I-20 first — either to the Masters program, or a different program that would help prepare you for the Masters. Then you can apply for the SSN after you’ve been admitted and reported to the school. Talk to the school – in fact, talk to several schools to see what they will do, then you could discuss the different options from the schools with an immigration attorney.

Employment Immigration

I heard the H-1B cap was met for 2016. What does this mean?

On April 7th, 2015, USCIS completed its H-1B Cap Random Selection Process for H-1B visas. The H-1B visa allows certain foreign national workers holding a bachelor’s degree to be temporarily employed in the US. The employer applies for the visa on behalf of the foreign national, and employment based on the H-1B visa is limited to the sponsoring employer.

H-1B visas are capped at 65,000 with an additional 20,000 given to applicants with a master’s degree. Because the number of applicants exceeds 85,000, USCIS uses a lottery system to select petitions to approve. If approved, the employee can begin work as soon as October 1st, and USCIS returns filing fees for those not selected in the lottery. During the last 3 years, the number of H-1B applicants has been rising quickly. Here’s a breakdown of recent number of applicants for the last 3 years:

  • Fiscal Year 2016
    • 233,000 H-1B applications received
    • 85,000 awarded (20,000 for master’s degree holders)
  • 1 year ago
    • 172,500 H-1B applications received
    • 85,000 awarded (20,000 for master’s degree holders)
  • 2 years ago
    • 124,000 H-1B applications received
    • 85,000 awarded (20,000 for master’s degree holders)

For the many qualified H-1B applicants who don’t receive a visa in the lottery, there may be other options for living or working in US. Certain educational and non-profit employers can file cap-exempt H-1B petitions. Also, some foreign nationals may be eligible for another employment-based or family-based immigration path. Talk with an experienced immigration attorney to review your options.

 

DAPA, Family Immigration

What is deferred Action for Parental Accountability (DAPA)? Who is eligible?

**Update: DAPA program is currently on hold. From USCIS: Update: Due to a federal court order, USCIS will not begin accepting requests for the expansion of DACA on February 18 as originally planned and has suspended implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents. The court’s temporary injunction, issued February 16, does not affect the existing DACA. Individuals may continue to come forward and request an initial grant of DACA or renewal of DACA under the original guidelines. Please check back for updates. (http://www.uscis.gov/immigrationaction) **

President Obama took executive action on Immigration this past November. Part of his initiatives include a new program providing Deferred Action for Parents of Americans and Lawful Permanent Residents, or Deferred Action for Parental Accountability (DAPA).

Who is eligible?

  • Parents of US citizens and lawful permanent residents who have been present in the US since 1/1/2010. These parents also need to pass a criminal background check and pay taxes.

What kind of relief is available?

  • Eligible parents can obtain deferred action, which allows them to remain temporarily in the US without fear of deportation. In addition, they will be able to obtain employment authorization.

When is DAPA available?

  • USCIS estimates 180 days following the President’s announcement, which would be May 2015.

What can I do now?

  • Save for filing fees, likely $465
  • Gather evidence to show presence in the US
  • Do not travel outside of the US
  • Consult with a licensed immigration attorney