Before intending family-based immigrants are issued their visa, or approved for adjustment of status, the petitioning U.S. family member or their joint co-sponsor will have to submit an I-864 Affidavit of Support (or acceptable I-864 variation) and most of the time, satisfy certain income requirements.  The most common exception is the option for a petitioner to prove their financial health by way of ownership of sizable liquid assets as evidenced by bank/brokerage account statements or real property appraisals.

The income requirement applicable to most petitioners is 125% of the poverty level as determined by the U.S. Department of Health and Human Services.   For sponsors residing in the lower 48 contiguous states in the U.S., applicable guidelines are set forth below:

2011 Poverty Guidelines for the 48 Contiguous States and the District of Columbia – as of March 1, 2011

Size of family unit       Poverty guideline       125%

2                                      $14,710                    $18,213

3                                      $18,530                    $23,162

4                                      $22,350                    $27,937

5                                      $26,170                    $37,712

6                                      $29,990                    $37,487

7                                      $33,810                    $42,262

8                                      $37,630                    $47,037

For family units with more than 8 members, add $4,775.00 for each additional member to meet the required 125%.Poverty Guideline level.

PUBLISHED August 12, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

In general, the K-1 visa is available to foreign nationals seeking to enter the U.S. to marry their U.S. citizen fiancé, as long as, among other requirements, they intend on marrying within 90 days of entry, and the couple has met in person at some point in the 2 year period leading up to the filing of the visa petition. After entering on a K-1 visa and marrying their U.S. citizen petitioner within 90 days, the foreign national is to then apply for “adjustment of status” and if all goes well at the interview at the local CIS office, the foreign national will be issued a 2 year conditional green card. These days the process can be a quick one, with all steps completed in as little as 8-10 months – start to finish.

But what happens when the couple divorces by the time of the adjustment of status interview and/or prior to green card issuance? According to a hugely significant Board of Immigration Appeals’ (BIA) decision from last week (Matter of SESAY), the foreign national is still eligible for permanent residence. In SESAY, Mr. Sesay, a native and citizen of Sierra Leone, met his future U.S. citizen wife while both were studying in Addis Ababa, Ethiopia. Eventually his U.S. citizen fiancé petitioned him to enter the U.S. on a K-1 visa. After entering on the K-1 and marrying his petitioner within 90 days, Mr. Sesay applied for adjustment of status. By the time a decision was rendered on the application, however, the couple had divorced – although a child was born to the marriage. Because the marriage was no longer intact, the immigration officer denied the application and that decision was eventually upheld by an Immigration Judge in removal proceedings. While fighting his case in the U.S., Mr. Sesay eventually met the woman who would become his second wife, married her and filed for permanent residence based on this marriage. That application was also denied, because of the rule that forbids K-1 visa entrants from obtaining U.S. residence based on a marriage to someone other than their U.S. citizen K-1 petitioner.

The BIA agreed that Mr. Sesay could not be issued a green card based on his second marriage, but also concluded that nothing in the law prevents Mr. Sesay from being eligible for resident status based on his first marriage – since the marriage was indeed based on a bona fide, genuine relationship, and was entered into in the requisite 90 day period following entry on his K-1 visa. According to the BIA, the fact that Mr. Sesay, prior to green card issuance, divorced his petitioning spouse and later remarried does not dictate the denial of his application for residence.

PUBLISHED January 26, 2011 – “IMMIGRATION LAW FORUM”
Copyright © 2011, By Law Offices of Richard Hanus, Chicago, Illinois

In recent years, government officials have increasingly been turning to high technology to gather information to assess marital relationships that are the basis of immigration filings, such as for green cards or expedited citizenship. From credit reports to utility bills, agents for the Department of Homeland Security, are tapping into the vast informational resources that flow freely from having an individual’s social security number in an effort to test claims that husband/wife immigration applicants are residing together and otherwise engaged in a bona fide relationship. Most recently the Department of Homeland Security, has taken the leap into social networking. A report was just released describing how DHS agents are utilizing social networking sites such as Facebook, MySpace and others to conduct covert surveillance of applicants for permanent residence or naturalization where eligibility depends on the applicant demonstrating a shared residence and bona fide relationship with a U.S. citizen.

To say the least, online behavior of many in the social networking context can best be described as peculiar, with networking site account holders letting complete strangers into their life without qualification and sharing all kinds of personal information, including the particulars of their social life, tastes and sexual habits. Taking advantage of this societal phenomenon, DHS agents are posing as “innocent strangers” looking to “friend” either or both the foreign national applicant and petitioning US citizen spouse. Once the friend request is accepted, the government essentially is given the open door to conduct a type of cyberspace “home visit” to assess the sincerity of the relationship at issue. Does the person list themselves as married on their site? Are they engaged in online activities that would present doubts about how genuine the relationship at issue is?

Clearly, the online, high tech world we live in is ripe for information gathering. But anyone who has ever seen their own credit report knows, big questions remain regarding the relevance of the gathered information, along with the accuracy of the government’s interpretation of the information.

PUBLISHED October 20, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

When it was announced Lou Dobbs, a controversial television commentator, was leaving CNN, I set out to write a column explaining the significance of his views and departure from CNN and whether the controversy surrounding him is truly warranted. I finished a few drafts but had a difficult time tying together my thoughts and arriving at any meaningful conclusions. However, Dobbs’ recent pronouncements, on Fox News’ O’Reilly Factor, in favor of a legalization program for our country’s undocumented population, prompts me once again to think about Dobbs and the relevance of his views.

I must confess that I never regularly tuned in to watch Dobbs’ program, but I do know that he developed a reputation as being an angry, populist, even racist, voice especially when it came to the enforcement of the U.S./Mexico border and U.S. immigration law in general. Apparently, Dobbs’ presentation became too angry and opinionated for CNN management to continue to stomach. Notwithstanding his irritating, and over-generalizing style, I still think he asked some good questions. How did our borders become so porous? Why aren’t our immigration laws strictly enforced? How is it that the undocumented population in the U.S. has reached the 12 to 20 million level? Given his relative popularity and notoriety, one gets the impression that Dobbs is thinking about the basic questions that are on the minds of “regular Americans” (whoever they are).

How did we get to the point where 12 to 20 million people decided that their lives here illegally are better than a “legal” life in their home country? Many, many factors of course. The following are some of my own general, anecdotal and non-scientific observations.

Based on my day to day interactions with employers and foreign nationals seeking to stay in the U.S., it is clear that there is nothing like a hungry, hard working foreign national to fill a job, whether skill or unskilled, professional or non-professional – at least compared to a second or third generation American. But for a small, small percentage, the foreign national coming to the U.S. is coming here to work hard, make money and create a better life than the one he had in his native land. In most cases, it’s not that he works for cheap, but it’s that he has a drive and motivation born out of deprivation, with his homeland providing little or no promise for economic, educational or professional advancement.

In previous generations, U.S. immigration law has mostly found a way to accommodate the demand of U.S businesses for these hungry, enterprising workers, and the ambitions of the foreign nationals seeking to “make it” in the U.S and pursue the American dream. In fact, most would agree that it is the generational infusion of a hungry, enterprising workforce that has been integral to our nation’s evolution and character. In the past couple decades though, it is clear that much, much more of the rest of the world want to come to the U.S., and legal avenues available to accommodate this increased interest have only become fewer. For certain, politicians sense their non-business constituencies to be generally opposed to creating laws allowing for more ways for foreign workers to take U.S. jobs – especially since 9/11 and in our present economic environment.

The result: an undocumented population of 12 to 20 million, professional and non-professional workers alike, who arrive and stay in the U.S. They remain in the U.S. because the U.S. government has made a deliberate decision to not institute deportation proceedings against this otherwise law abiding (but for a small percentage), undocumented population. They remain in the U.S. because life here, even illegally, is better than their life in their home country. In the U.S., unlike in their home countries, they can work hard for a better future, if not for themselves, then for their children. But for most of these people, there exists no vehicle toward legal immigration, no paperwork to complete and no “line” in which to wait their turn. The bottom line, legal avenues for the vast majority of the 12 to 20 million generally do not exist and never did exist.

Back to Lou Dobbs. Dobbs wonders aloud, sometimes very aloud, how the current undocumented population managed to reach its current level — and for this, Dobbs has been portrayed as, among other things, anti-immigrant. But, beneath his bravado and anger, I see someone who asks some honest questions no one seems to want to answer, such as: If the U.S. really can benefit from hungry enterprising workers earning market wage, why don’t we institute laws that allow for such a transaction, as opposed to just looking the other way when it comes to enforcement ?

During his recent appearance on O’Reilly’s show, Dobbs admits that since first taking up immigration as one of his pet issues , he has become wiser and less angry – particularly when it comes to the issue of what to do with our nation’s undocumented. He has resigned himself to accepting the notion that our nation has neither the bureaucratic infrastructure nor emotional strength to deport 12 to 20 million individuals – so let’s be honest, Dobbs realizes, and create an avenue to “legalize” them.

Regardless of his motivations – including his political aspirations, if Lou Dobbs represents the voice of John Q. Public and he has finally accepted the honest and realistic solution of comprehensive immigration reform, and a path to citizenship for the undocumented, perhaps our nation has turned a significant corner in this discussion.

PUBLISHED January 9, 2010 – “IMMIGRATION LAW FORUM”
Copyright © 2010, By Law Offices of Richard Hanus, Chicago, Illinois

For about the tenth time in the past decade, I am writing about a new legislative initiative presented to allow for the legalization of the vast majority of those present in the U.S. in violation of our immigration laws. This time, the initiative is called Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”). The measure was introduced before the U.S. House of Representatives on December 15, 2009 by Congressman Luis Gutierrez (D-IL), a lawmaker who has shown himself to be a leader in the comprehensive immigration reform movement. Gutierrez, like many other politicians in Congress, along with our President, realizes that eventually our society has to make a choice about what we will do about our nation’s 15 million or so undocumented individuals. Absorb? Deport? Some stay, some go?

Whatever the solution, for sure, by doing nothing our country ignores the issue and pretty much establishes a de facto amnesty, where the status quo is maintained and the undocumented population continues to be allowed to live and work in the U.S., albeit in the shadows. Based on the underlying premise of most undocumented workers’ embarking for the U.S. in the first place (“better to be in the U.S. illegally and make a living and get ahead than be in my home country legally”), this population will not be packing their bags for a trip home anytime soon, no matter the level of immigration enforcement.

CIR ASAP includes a broad range of initiatives, including enhanced border security and immigration law enforcement, improved verification systems for employers and otherwise establishing some integrity in our broken immigration system. The truly potent, provocative goodies in the legislative proposal involve the legalization of the undocumented population.

The most notable provision allows for the out of status/no status foreign national to establish an interim legal status by, among other requirements,

a) documenting their unlawful status in the U.S as of December 15, 2009,
b) paying an application fee, along with a $500 fine, and
c) attesting to having made societal contributions through employment, education, military service, or social service volunteering.

The applicant would also need to demonstrate a relatively clean criminal record, where a felony or three (3) misdemeanors will prompt ineligibility.

Other highlights of the CIR ASAP:

• Allows for adjustment to permanent status after a six (6) year interim, conditional status. In conditional status, while awaiting permanent status, an applicant will have the right to work in the U.S. and travel internationally; individuals in removal proceedings will be among the pool of eligible applicants.
• DREAM ACT: similar to above provision, except that students brought to the U.S. before 16 years of age would have an accelerated path to permanent residence upon high school graduation, completion of two (2) years of college study or several other milestones,
• Expands opportunities for U.S. employers to hire and keep foreign workers by liberalizing rules for facilitating temporary and permanent (immigrant) visas for foreign workers and
• Provides greater discretionary authority for Immigration Judges presiding over a long time U.S. resident’s removal (deportation) hearing.

There are at least another 100 interesting provisions included in this legislative proposal. Most likely, though, if and when any of these measures get signed into law, the details and language will probably only faintly resemble this proposed language. To many in Congress, a measure like CIR ASAP is toxic territory, where any type of support for this cause will open up the floodgates for criticism and accusations of “rewarding the lawbreaker.”

Certainly, for any sort of immigration reform to pass, courage and brutal honesty will have to find a way into the discussion — particularly to get past the argument that, in the end, the lawbreaker may very well be rewarded. But, looking at the potential benefits such reform may yield for our society, including a substantial economic shot in the arm (think of all the billions of dollars the 15 million undocumented will start spending knowing that their stay here is secure), as well as the cost of doing nothing, comprehensive immigration reform, in some form or another, is inevitable. Here’s hoping that the introduction of CIR ASAP at least gets an honest and courageous conversation started.

PUBLISHED December 16, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

On October 28, 2009, President Obama signed into law important immigration provisions to address the unjust consequences of slow Citizenship and Immigration Services processing, particularly relating to widows and widowers of U.S. citizens. The law also includes ameliorative provisions relating to other types of family relationships and petitions; the death of a petitioning US family member or principal beneficiary will no longer necessarily deal a fatal blow to a pending case. With regard to this latter category of petitioners, however, significant questions continue to linger.

Widows and Widowers of U.S. Citizens

Consistent with recent Department of Homeland Security policy, the new legislation effectively eliminates what was known as the “Widow Penalty.” Under previous law, foreign nationals who were the widows or widowers of U.S. citizens only qualified for an initial grant of U.S. residence if they were married for at least two years prior to their spouse’s death. Now, a foreign national spouse is eligible to seek U.S. permanent residence (by completing Form I-360), no matter how long they were married at the time of the U.S. citizen’s death, and regardless of whether their spouse ever initiated the U.S. immigration process or obtained approval of an I-130 petition. The law applies retroactively as well as to surviving spouses who were overseas at the time of their U.S. citizen spouse’s death. Thus spouses of deceased U.S. citizens who were ineligible due to the short term of the marriage can now benefit from U.S. immigration benefits, including foreign spouses who have never set foot into the U.S. — no matter how long ago they were widowed.

NOTE: 2 year Deadline!!!

Foreign nationals whose U.S. citizen spouses died before the enactment of the new law must apply for U.S. immigration benefits within two years of the enactment date before October 28, 2011. Otherwise, foreign nationals whose U.S. citizen spouse dies following the enactment of this law, must file for U.S. residence within two years of their spouse’s death.

Lastly, children of the above class of applicants who are under 21 years old may also be included in the U.S. immigration filing, although CIS Headquarters may soon have more details on eligibility for this class of applicants. Stay tuned.

Other Family Based Petitions Where Petitioner Dies Before Petition Approval

Basic immigration law says that if a family based U.S. citizen or resident petitioner dies, so does the petition. In the past, only if the petition was approved prior to the petitioner’s death, could the foreign family member seek to have the petition reinstated by way of a humanitarian reinstatement request. Now, under the new law, if any family based preference I-130 petition on file was unprocessed by the time of the petitioner’s death, CIS now has authority to continue the processing and approve the petition, as long as such continued processing is not determined to be “against the public interest.”

This new provision only applies to beneficiaries of family based petitions who resided in the U.S. at the time of their petitioning relative’s death.

Interpretation: Based on my review of conflicting Internet articles purporting to interpret this law — written by both experts and non-experts alike — there remains a slew of hugely important questions in need of answers. The most important questions relate to whether beneficiaries in the above class of family based petitions residing in the U.S. still need to apply for humanitarian reinstatement of the governing I-130 petition before seeking adjustment of status (the final stage in the immigration process).

Although it appears that beneficiaries whose petitioning relative dies after the beneficiary files for adjustment of status will not need to apply for humanitarian reinstatement, it seems there is much confusion as to whether such reinstatement must be sought if the U.S. petitioning relative dies while merely awaiting visa availability and prior to filing for adjustment of status. It would not surprise me in the least if CIS Headquarters ultimately confirm that — aside from cases where the beneficiary has already filed for adjustment of status — humanitarian reinstatement must be sought in all cases where the petitioner dies prior to the beneficiary obtaining permanent residence.

Other foreign national family members of a deceased who reside in the U.S. who were previously ineligible for U.S. immigration benefits, but have new eligibility based on the above law include:

• Derivative (spouse and children under 21 years) family members of a Deceased Principal Beneficiary of an Employment Based Immigration Petition (I-140)
• Certain T and U visa family members
• Certain Asylees/Refugees relative petition beneficiaries

As stated, CIS Headquarters has much work to do in interpreting this new law and giving guidance on many important unanswered questions. Our readers will be kept current on all developments in this regard.

In the past month, U.S. Citizenship and Immigration Services released a “Fact Sheet” outlining the law as it relates to a foreign national’s receipt of certain public benefits in the U.S. and the possible adverse consequences it might pose for his/her effort to become a U.S. permanent resident. In sum, the Fact Sheet makes clear that not all benefits will present adverse consequences, and that merely receiving a “need based” benefit will not, in and of itself, be a basis to deny an applicant their resident status.

A “public charge” has been defined as “an individual primarily dependent on the government for subsistence, as demonstrated by either receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” For almost as long as there have been U.S. immigration laws, there have been provisions setting forth the undesirability of having individuals come to our country to become a public charge. But for a handful of exceptions, those deemed “likely, at any time, to become a public charge” will be denied the right to live permanently in the U.S.

What factors are relevant in the determination?

1. But for a few exceptions, in the context of family based immigration, if the foreign national does not have an income eligible “sponsor” providing an Affidavit of Support, she will be deemed likely to become a public charge and her application for U.S. residence or immigrant visa will be denied.
2. Even if the affidavit of support requirement is met, other factors can be taken into account in the public charge determination, such as age, health, family status, assets, resources, financial status and education/skills as well as whether the individual has already received certain U.S. government benefits.

U.S. or state government benefits that will raise a red flag, but not necessarily lead to a public charge determination, include:

• Supplemental Security Income (SSI) under Title XVI of Social Security Act
• Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program)
• State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
• Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution)

Receipt of non-cash benefits (other than institutionalization for long term care) are generally NOT taken into account in the “public charge” analysis. Those benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
• Job training programs
• In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)

Lastly, as stated, not all applicants for U.S. residence are subject to public charge scrutiny, and those exempt applicants include: Refugees, Asylees, certain battered spouses or children, and host of other limited categories of immigrants.

PUBLISHED November 16, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

In recent weeks, it appears Citizenship and Immigration Service Centers across the US have been making headway on their backlog of long pending visa petitions filed by US Citizens or Permanent Residents on behalf of their foreign-born family members both living in the US and abroad. Many of these US petitioners and their family are receiving official CIS “Notice(s) of Action” approving their I-130 petition(s), and of course the families are jubilant upon getting the news. But is jubilation warranted? Is a green card or immigrant visa close at hand?

What does the Notice of Action approving the I-130 mean?

It means the relationship that is the basis of the petition has been established, and that the CIS office reviewing the petition has finally gotten around to formally approving the filing. However, other than for spouses and young children of US citizens as well as parents of adult US citizens – where visas are immediately available – a green card or immigrant visa will not be in the foreign relative beneficiary’s immediate future.

That is because visa availability in the Family 1st thru 4th Preference Categories is backlogged in a big way, and due to the demand for visas in these categories significantly outnumbering the supply, it still could be a matter of 5 to 30 additional years – depending on the Preference category at issue – before the foreign national receives any type of US immigration benefit.

But the Notice Says I Might be Eligible to Apply for Adjustment of Status or for Immediate Immigrant Visa Processing!

For foreign nationals who are the subject of the approved visa petition and are living in the US, the boilerplate language on these approval notices are giving many intending immigrants the impression, reasonably or not, that they can immediately visit their local CIS office to file their applications to adjust status. For many visa petition beneficiaries living abroad, the language on the approval notice is likewise giving the impression, reasonably or not, that the case is being transferred to the US Department of State for immediate immigrant visa processing.

The problem is that there is a substantial divide between the impression and the reality, since nothing in terms of real and immediate immigration benefits are within reach. Again, this is due mainly to the long wait for visa availability, and that although the parties have established a priority date (i.e. a place in the visa line), the line they are waiting in may very well involve an additional 5 to 30 year wait – depending on the Family Preference (and country of nationality, since those from Mexico and the Philippines are subject to even longer waits than those from other countries).

So, if an I-130 petition of a US citizen on behalf of their sibling is approved after remaining pending for 5 years, the parties will still have to wait another 5 years for visa availability since the backlog for visas in the Family 4th preference is approximately 10 years. (and even longer for nationals of Mexico and the Philippines ).

Which overstays or undocumented foreign nationals living in the US will be eligible to apply for adjustment of status in the US?

As stated, a foreign national overstay who is married to a US citizen, is the under-21 year old child of a US citizen, or is the parent of an adult US citizen, will generally be able to adjust status in the US, notwithstanding major gaps in their status and no matter when their filings are initiated.

As to other categories of immigrants, only those who were the subject of a family or employment based visa petition or labor certification filing filed prior to January 14, 1998 (or in some cases April 30, 2001) and covered under Section 245(i) will be eligible to adjust their status in the U.S. Payment of a penalty of $1,000.00 will be required when submitting their adjustment of status application, which of course can only be submitted upon visa availability.

As far as responding to National Visa Center requests for payment of fees for overseas immigration visa processing, those beneficiaries who are in the US and have no intention of returning to their home country for visa processing should not comply with such requests since payment of these fees is an absolute waste of money (no matter how good or right it might feel to comply). See also my previous article on a related topic.

Unless new legislation is passed, those not covered under previous versions of Section 245(i) will not be eligible to adjust status. And since such overstays or undocumented individuals face dismal immigration consequences if they returned to their home countries for their immigrant visa interviews, staying in the US to wait for some new legislation pretty much becomes their only option if the wish to keep alive their hope to someday become “legal” in the US.

PUBLISHED August 31, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

When a foreign national is granted U.S. residence as a result of his marriage to a U.S. citizen, the permanent resident card (green card) is usually issued on a conditional basis, and valid for only two years. In other cases, where the marriage at issue has already reached its second anniversary by the time the foreign national is first approved for adjustment of status, or enters the U.S. on their immigrant visa, the resident card will be issued on a permanent basis, with a 10 year validity and “without condition.”

For conditional residents approved for a two-year status, the underlying marriage is ideally a harmonious one and the conditional resident, along with their U.S. citizen spouse, will eventually be in a position to file an I-751 joint petition to remove the conditional basis in the 90 day period leading up to the expiration of conditional status. As long as substantial supporting documentation confirming the couple’s shared residence is included with the joint petition, Citizenship and Immigration Services (CIS) usually approves the case without an interview and issues a permanent 10 year, resident card within 6 to 12 months of the filing — sometimes sooner. Occasionally, I-751 joint petitions are scheduled for interview at a local CIS office because not enough supporting documentation is submitted with the filing, or CIS somehow obtains what it considers derogatory or conflicting information.

When tension arises in the marriage such that the couple separates while the immigration case is pending, or the U.S. citizen spouse refuses to attend the interview, a strategy must be formulated.

Case 1: The couple no longer lives together
There is nothing in the regulations that prevents CIS from approving the petition if husband and wife:

• appear for the interview,
• convince the interviewing officer that their marriage was bona fide when it was entered into,
• express an interest at proceeding with their petition and, when applicable,
• advise that they are working at reconciling.

Case 2: The couple may or may not be separated, but the U.S. citizen spouse refuses to attend the interview
A little trickier — as governing regulations pretty much prohibit the approval of the joint petition if the U.S. citizen spouse refuses to appear. However, CIS Headquarters recently issued a new policy statement allowing for the I-751 joint petition to be converted to an I-751 “waiver” petition, where the foreign national is allowed to “go it alone” and without having to re-file the petition as a waiver case, as previous policy dictated. (In general, I-751 waiver petitions allow for the removal of the conditional basis in cases where the a U.S. citizen is not cooperative). In such cases, the foreign national, in their individual interview, will generally be questioned thoroughly about the sincerity of the marriage and the claimed period of a shared residence. Also, CIS will eventually request that a divorce decree be presented in support of the newly converted waiver filing. However, where the divorce will be contested and entry of a decree in a relatively short period of time is unlikely, additional strategy is required.

Additionally, in cases where the foreign national awaiting their I-751 joint petition interview is the victim of domestic abuse, an entirely different strategy altogether must be considered.

PUBLISHED July 30, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois

Foreign nationals in the U.S. who are applying for U.S. permanent resident status (including conditional permanent resident status) aka “adjustment of status,” based on marriage to a U.S. citizen, or another type of family-based petition with current visa availability, are seeing their applications being processed efficiently and speedily. So are applicants for U.S. citizenship. Immigration interviews, at least through CIS Chicago, are being scheduled with lightning speed, and card production for approvable permanent resident applicants, and oath ceremonies for approvable U.S. citizenship applicants follow within just a week or two of the interview. In my almost 20 years of practicing immigration law, I do not recall ever seeing the logistics of these aspects of the immigration benefits system work this well.

Here is the current timeline for family based, I-485 adjustment of status applicants — assuming the paperwork and all supporting documentation is prepared and filed correctly:

1. Dept. of Homeland Security/Citizenship and Immigration Services issues receipts within approximately 5 to 10 days of filing date,
2. Biometrics (fingerprint) appointment scheduled within approximately 10-15 days of filing date,
3. Employment Authorization Document (and for those eligible, Advance Parole Travel Document) issued within 45 to 90 days of filing date and
4. Interview (at least at CIS Chicago) scheduled within 90 -120 days of filing.

Please note that interviews will be scheduled for all marriage-based applications, but not necessarily for other types of family-based cases. Applicants with arrest records or other significant immigration-related irregularities will always be interviewed.

The timeline for N-400 applicants for naturalization — assuming prepared and filed correctly — is pretty much the same as for I-485 applicants, except that interviews are scheduled within 4 to 6 months of the filing date, and oath ceremonies scheduled approximately 2 to 4 weeks following the interview.

What can impact this timeline? If the application and all supporting documentation, such as the Affidavit of Support, is not prepared correctly, additional weeks or months can be added to Employment Authorization Document and/or I-485 processing times. Also, if questions surrounding the applicant’s legal eligibility for permanent residence or U.S. citizenship comes into play — especially at the time of interview — weeks, months, and even years can be added on to this processing timeline. But when the case is prepared properly, and clear legal eligibility for the immigration benefit is established, applicants can pretty much expect smooth and speedy sailing.

Dude, Where’s My Green Card?

Speaking of break neck speed, recently approved applicants for adjustment of status have had to cope with the “disappointment” of having their permanent resident cards processed in a matter of 90 days or so, versus the 2-3 week processing horizon that we have gotten used to in the past year. Last week though, CIS officials have advised that approved applicants can once again look to the 2-3 week card production window, with kinks in the production process having been ironed out.

PUBLISHED July 7, 2009 – “IMMIGRATION LAW FORUM”
Copyright © 2009, By Law Offices of Richard Hanus, Chicago, Illinois