Articles Posted in Family Visa

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marriageThe Immigration and Nationality Act (INA), the nation’s primary source of immigration law, allows noncitizens who marry U.S. citizens to obtain lawful permanent residence without numerical limitations. In order to address concerns about marriages whose sole intent is to facilitate immigration benefits, the INA sets restrictions on people who seek lawful permanent residence after less than two years of marriage. A violation of these restrictions can result in a finding of deportability, but the INA allows waivers in some situations. The Board of Immigration Appeals (BIA) recently ruled on a waiver claim in a case involving marriage fraud. Matter of Tima, 26 I&N Dec. 839 (BIA 2016). The ruling offers an extensive summary of this area of immigration law but resulted in the denial of the respondent’s claims.

An individual who obtains lawful permanent resident (LPR) status through marriage to a U.S. citizen is granted “conditional permanent resident” status if, at the time they obtain such status, they have been married for less than two years. 8 U.S.C. § 1186a. Within two years of obtaining conditional status, they must apply to have the conditions removed. The purpose of this two-year conditional period is to give the government time to investigate whether the marriage was solely entered into for immigration purposes.

If the parties are no longer married after two years, that is not automatic evidence of marriage fraud, but it will likely bring additional scrutiny from investigators. If the government concludes that the marriage was a sham, or if the immigrant fails to apply by the two-year deadline, conditional permanent residence is automatically revoked. The immigrant may then be subject to deportation. 8 U.S.C. § 1227(a)(1)(D)(i).

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world mapFederal immigration law allows U.S. employers to petition for an immigrant visa for a current or prospective employee, and citizens or lawful permanent residents may do so for a family member. The length of time it takes for the government to approve an immigrant visa petition mainly depends on two factors:  the type of visa sought and the prospective immigrant’s country of origin. Most family- and employment-based visas are subject to annual numerical limitations. Federal law also imposes an annual cap on the number of numerically limited visas available to citizens of any one country. A bill currently pending in the U.S. Congress, H.R. 213, or the Fairness for High-Skilled Immigrants Act of 2015, would eliminate or increase the limits placed on each country. The bill likely has little to no chance of passing during the current Congressional session, but it offers a useful look at this particular system of numerical caps.

Some prospective immigrants are not subject to any numerical limitation, such as “immediate relatives” of U.S. citizens. 8 U.S.C. § 1151(b). All other prospective immigrants are subject to annual caps of up to 480,000 family-based and 140,000 employment-based immigrants. Id. at §§ 1151(c), (d). These immigrants are assigned to employment- and family-based immigrant visa categories, based on either the type of job involved or the petitioner’s own status and the immigrant’s relationship to the petitioner. 8 U.S.C. § 1153. In addition to these annual caps, the total number of visas given to citizens or nationals of any one country in a fiscal year cannot exceed seven percent of the total number of authorized visas. 8 U.S.C. § 1152(a)(2). For dependencies of a foreign country, the limit is two percent. Id.

This per-country numerical limit largely affects nationals of some countries more than others. The monthly Visa Bulletin issued by the U.S. Department of State, which indicates how long beneficiaries of each type of immigrant visas petition may expect to wait, illustrates the disparate impact on countries with a high volume of petitions. The Visa Bulletin shows the priority dates for each immigrant visa category that are currently being processed by the government. A petition’s “priority date” is roughly equivalent to its filing date. The Visa Bulletin further distinguishes between petitions received from China, India, Mexico, the Philippines, and all other countries. According to the August 2016 Visa Bulletin, the current priority date for the “F1” family visa category for most countries is May 22, 2009, a waiting period of just over seven years. For the Philippines, however, the priority date is March 22, 2005. For Mexico, it is March 8, 1995.

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dogThe process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa Integrity and Security Act (VISA) of 2016, would affect how petitions are submitted, the extent of Department of Homeland Security (DHS) background checks, and the burden of proof to establish visa eligibility. H.R. 5253, the Strong Visa Integrity Secures America Act (SVISAA), would modify procedures for vetting visa applicants and for sharing information within DHS and between DHS and the Department of State (DOS).

U.S. immigration law provides for two broad categories of visas. An immigrant visa allows a person to come to the U.S. with the intention of remaining permanently, usually after qualifying through a family member or an employer. Someone who comes to the U.S. on an immigrant visa often applies to adjust their status to lawful permanent residence, also known as a “green card.” Once they have been in the U.S. long enough, they might be able to become a naturalized U.S. citizen. By contrast, a nonimmigrant visa allows a person to come to the U.S. temporarily for a specific purpose. A B-1 tourist visa, for example, allows a person to visit the U.S. but not to work, while an H-1B visa allows a person to hold a job in the U.S. while the visa remains valid. Nonimmigrant visa holders who remain in the U.S. after their visa expires are said to be “overstaying” their visa.

A person petitioning for a visa typically files the petition with U.S. Citizenship and Immigration Services (USCIS), which is part of DHS. A prospective immigrant located outside the U.S., however, has to go through a U.S. consulate in the country where they are located. The U.S. consulates are part of DOS.

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By A. Coeffler [Public domain], via Wikimedia CommonsImmigrant visas are available to certain family members of U.S. citizens and lawful permanent residents, as well as investors, employees, and prospective employees of American businesses. Recent announcements from federal immigration authorities and others have brought changes to immigrant visa procedures, as well as the potential for additional changes in the future. One recent change affects all immigrant visa categories, while others specifically apply to the EB-5 program for immigrant investors.

Procedural Changes at USCIS

In September 2015, U.S. Citizenship and Immigration Services (USCIS) announced new procedures for determining the availability of immigrant visas. Previously, visa bulletins issued by the U.S. Department of State (DOS) identified “final action dates” for each immigrant visa category. This date represents the priority date for immigrant visa petitions that the government is currently processing.

Many employment-based categories are current, but low-priority family-based applications can have distressingly long backlogs. According to the November 2015 visa bulletin, the government is now processing applicants from the Philippines in the fourth preference group—siblings of adult U.S. citizens—with priority dates in June 1992.

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By ISAF Headquarters Public Affairs Office from Kabul, Afghanistan (110329-A-5634G-004) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsThe U.S. Supreme Court, in an extremely divided opinion, ruled that the federal government did not violate a U.S. citizen’s constitutional rights by denying her husband an immigrant visa and refusing to tell her why. Kerry v. Din, 576 U.S. ___ (2015). Justice Scalia’s plurality opinion was only joined by two other Justices, Chief Justice Roberts and Justice Thomas. Justice Kennedy filed a concurring opinion with Justice Alito, and the remaining justices joined a dissenting opinion written by Justice Breyer. The court ruled that the plaintiff does not have a “constitutional right to live in the United States with her spouse,” Din, slip op. at 1, a conclusion the dissenting justices strongly disputed.

The plaintiff married her husband, an Afghan national, in 2006, and she filed a visa petition for him soon afterwards. U.S. Citizenship and Immigration Services (USCIS) approved the petition, but several months after her husband’s visa interview at the U.S. Embassy in Islamabad, Pakistan, she received notice that the State Department was denying the visa application. It merely cited “terrorist activities” as the reason, stating that it could not tell her anything further. 8 U.S.C. §§ 1182(a)(3)(B), (b)(2)-(3).

The husband worked as a payroll clerk for the government of Afghanistan from 1992 to 2003. The Taliban controlled most of Afghanistan from 1996 to 2001. This might have been the basis for the State Department’s “terrorism” conclusion, although the Taliban is not on the State Department’s list of Foreign Terrorist Organizations. The legal definition of “terrorism” is extremely vague, broad, and circular. Federal immigration law’s definition of “engaging in terrorist activity” includes acts that “afford[] material support” to terrorists. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). See also 18 U.S.C. §§ 2339A, 2339B.

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By Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe U.S. Supreme Court issued a historic ruling in June 2015 that effectively allows same-sex marriage in all 50 states. Obergefell v. Hodges, 576 U.S. ___ (2015). The court held that laws in 14 states banning the recognition of marriages between two people of the same sex violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Obergefell will not have much direct impact in New York and New Jersey, which have allowed same-sex marriage since 2011 and 2013, respectively. The federal government has also formally recognized same-sex marriage since the Supreme Court’s ruling in United States v. Windsor, 570 U.S. ___ (2013). It is not yet clear exactly how Obergefell will affect the U.S. immigration system, except that it will most likely remove the necessity of distinguishing among different states’ laws relating to marriage.

Marriage is considered a state law matter in the U.S., although the federal government takes marital status into account in numerous programs, including immigration benefits. The U.S. Congress enacted the Defense of Marriage Act (DOMA) in 1996, which defined “marriage” exclusively as “a legal union between one man and one woman as husband and wife” for the purposes of federal laws and programs. 1 U.S.C. § 7, 28 U.S.C. § 1738C. The Supreme Court ruled in Windsor that DOMA violated the Due Process Clause of the Fifth Amendment.

After the Windsor decision, the White House directed federal agencies, such as U.S. Citizenship and Immigration Services (USCIS), to treat immigration petitions and applications filed for a same-sex spouse the same as those filed for opposite-sex spouses. This includes immigrant visa petitions filed by U.S. citizens and legal permanent residents on behalf of spouses, as well as derivative nonimmigrant visas, such as H-4 visas for spouses of H-1B specialty workers and F-2 visas for spouses of F-1 students.

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OpenClips [Public domain, CC0 1.0 (http://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration law allows U.S. citizens and permanent residents to petition for immigrant visas for family members. Certain family members of U.S. citizens, including spouses, are not subject to any numerical restriction. Relatives of permanent residents fall into various preference categories and may face substantially longer wait periods before obtaining a visa. Once a family member has an immigrant visa, they can begin the process of applying to adjust status to permanent residence. Since marriage to a U.S. citizen is one of the fastest routes to obtaining a green card, immigration authorities are wary of fraud, such as through “sham marriages” between a U.S. citizen and a prospective immigrant. Two recent cases from New Jersey and New York illustrate how federal and state officials investigate and handle these types of cases.

U.S. Citizenship and Immigration Services (USCIS) places a high priority on detecting marriage fraud in immigrant visa petitions and applications for adjustment of status. They may require a substantial amount of evidence establishing that a marriage is genuine, and USCIS inspectors have broad discretion to determine whether a marriage is genuine or not. If an immigrant was married for less than two years at the time their application for permanent residence is approved, they receive “conditional permanent residence.” They may petition to remove the conditions after two years by showing that they are still married, that they are divorced or widowed, or that they were subjected to domestic abuse or other extreme hardship. A “bad” marriage is not necessarily a fraudulent one. The key question is whether the couple entered into the marriage primarily for the immigration benefits.

The head of a New Jersey immigration consulting firm was sentenced to two years in prison in March 2015, after pleading guilty to three charges arising from various acts of immigration and marriage fraud. United States v. Poku, No. 1:14-cr-00492, judgment (D.N.J., Mar. 30, 2015). The defendant was accused of creating sham marriages for numerous individuals, mostly from Ghana, to help them obtain immigrant visas and green cards. According to the government, he hired people to pose as spouses in USCIS interviews, forged documents demonstrating cohabitation in the U.S., and forged Ghanaian government documents. He pleaded guilty to one count of illegally inducing people to come to the U.S. without legal documentation for commercial advantage. 8 U.S.C. §§ 1324(a)(1)(A)(iv), (a)(1)(B)(1). He also pleaded guilty to two counts of money laundering and wire fraud.

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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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Usnaturalization.jpgThe New York Times reported the story of a man who came to the United States from Pakistan as a child, faced possible deportation several times, and finally became a U.S. citizen after years of waiting. Mohammad Sarfaraz Hussain came to the U.S. with his mother, and remained here after she died. He became fully “Americanized,” according to the Times, but the nation’s response to the events of September 11, 2001 put him and others in a difficult position. He was required to register with the National Security Entry-Exit Registration System (NSEERS), a now-defunct program created as part of the “War on Terror.” He avoided deportation and obtained asylum. By enduring some of the worst the immigration system has to offer and becoming a citizen, Hussain offers quite the success story.

According to the Times story, Hussain’s uncle, a physician in Queens, New York, petitioned for an immigrant visa for his sister, Hussain’s mother. As her minor son, Hussain would share her immigrant status. While the petition was pending, she was diagnosed with cancer and traveled to the U.S. on a tourist visa for treatment, bringing eight year-old Hussain with her. Hussain’s mother died in New York, and he overstayed his visa to remain with his uncle. His father died of a heart attack in Pakistan when he was fifteen. Another relative petitioned for an immigrant visa for Hussain, but the September 11 attacks occurred while it was pending.

The Immigration and Naturalization Service (INS), the predecessor to U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), created NSEERS in 2002. The program required certain nationals or citizens of various countries in the Middle East, North Africa, and South Asia to register with INS. This included male nationals of Pakistan who were over the age of fifteen at the time. 67 Fed. Reg. 77136 (Dec. 16, 2002). NSEERS was heavily criticized as a form of racial profiling that was both offensive and ineffective. The Department of Homeland Security began scaling the program back as early as 2003, and effectively ended it in 2011. Hussain registered with NSEERS in early 2003, and managed to avoid deportation when massive public support led ICE, which had by then replaced INS, to exercise “prosecutorial discretion” and dismiss the case.
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US_Embassy_in_Kabul_on_July_4th_2010.jpgConsular officers, who work for the U.S. Department of State (DOS), have a considerable amount of discretion regarding issuance of immigrant visas to relatives of U.S. citizens. If a consular officer refuses to issue a visa, the doctrine of “consular nonreviewability” has generally held that neither the immigrant nor the relative may challenge that decision in court. The U.S. Supreme Court has agreed to hear a case in which a U.S. citizen is challenging a consular officer’s decision, claiming that the officer infringed on her constitutional rights. Kerry v. Din, No. 13-1402.

The Supreme Court has held that immigration to the United States is not a right but a “privilege granted by the sovereign United States Government.” United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Consular officers interview prospective immigrants prior to issuing a visa, in part to determine whether they are inadmissible to the United States under 8 U.S.C. § 1182. One of the questions presented to the Supreme Court in Din is whether a petitioner may compel the government to present specific statutory and evidentiary support for a consular officer’s decision.

In the Din case, a U.S. citizen petitioned for an immigrant visa for her husband, a national of Afghanistan. He had worked for the Afghan Ministry of Social Welfare as a payroll clerk from about 1992 to 2003. This included the time period from 1996 to 2001 when the Taliban controlled most of the country. USCIS approved the petition, and DOS scheduled the husband for an interview at the U.S. Embassy in Islamabad, Pakistan. The interview took place on September 9, 2008. After about nine months, the petitioner received a notice from DOS that the visa had been denied, and that the husband was not subject to a waiver of ineligibility. The Embassy informed them that the visa was denied due to “terrorist activities,” 8 U.S.C. § 1182(a)(3)(B), and that it could not provide any additional information, id. at §§ 1182(b)(2) – (3).
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