Monthly Archive for July, 2011

Unlawful Presence Part 1

Published in Marriage Green Cards, July 25, 2011

This is an important issue and very relevant to people, who have entered the United States unlawfully and later on want to marry a US citizen or gain some kind of other immigration benefit.

What is unlawful presence?

A very common unlawful presence scenario is when someone enters the country on a tourist visa, which has a set expiry date, and overstays. If you don’t leave the country before the expiry date, you start to accumulate unlawful presence.

Unlawful presence can be a bar to immigrating to the United States. If you have more than 180 days of unlawful presence, you are not allowed to enter the U.S. or adjust status (banned) for 3 years. After 1 year of unlawful presence, the ban goes up to 10 years. For example, if you’ve entered the United States on a tourist visa and have overstayed for more than 180 days and now leave the country to get a student visa or any other kind of visa, you will be barred from entering the United States for 3 years. This bar is very rigid. Even if you marry a US citizen a few months after leaving the country, you would still be barred for 3 years.

(this blog post assumes that  the foreign national requires a waiver because they accrued unlawful presence by entering without inspection or departed the United States after the expiration of the period of stay authorized by the Attorney General – for more than 180 days).

However, you can obtain a waiver of the three or ten year bar by applying for a waiver. I will discuss these waivers in my next post.

Exemptions from the unlawful presence bar.

Two examples are students and J1 visas, which don’t have expiration dates and are valid for the duration of status.

For more information or for help with your particular case, please contact our offices in San Francisco, Santa Clara and Sacramento, California at 415-986-6186.

R Visa for Religious Workers

Published in R Visa, July 18, 2011

The R visa is used by members of a religious organization coming to the US to work for the same religious organization.

Origins of the R-1 Visa

The R-1 visa was put into law as part of the Immigration Act of 1990 with strong support of the Catholic Church. They faced severe shortages of priests, monks, nuns, healthcare staff in their hospitals and teachers in their schools. It was also supported by the evangelical lobby and welcomed by the Hindu and Buddhist communities.

R Visa Requirements

The requirements for becoming eligible for an R Visa are:

  • You’ve been a member of a religious organization for at least two years.
  • The religious denomination has a bona fide non-profit religious organization in the US. This means, that the organization is tax exempt under the US tax law.
  • The organization is petitioning for you to work for them.
  • You will work for them as a minister or in a religious vocation or occupation. Minister is defined as an individual who is trained and authorized to perform the duties required by the denomination.
  • And, of course, you intend to return to your home country at the end of your stay.

Spouses and children of the R-1 visa applicant are eligible for an R-2 visa. They are not permitted to legally work within the United States.

To find out more about the R Visa please visit our R-1 Visa page on www.ranchodlaw.com or call our office at 415-986-6186.

What happens when the sponsor for a marriage based green card doesn’t have the minimum required income?

Published in Green Card and Marriage Green Cards, July 11, 2011

The Affidavit of Support

The Affidavit of Support is one of the most complicated and important forms required during the marriage based green card immigration process.

If you are a United States Citizen or a Green Card holder and you sponsor somebody to come to the United States, then you need to make certain promises to the US government. One of them is that you have the means to support this person financially. You must show to the USCIS that you have sufficient income to ensure that the beneficiary will not become a public charge.

In order for you to be able to sponsor a foreign national for a green card, your income must meet or exceed 125% of the Federal poverty guidelines indicated for your household size. The exact amount for the Federal poverty guidelines is updated every year. You can find the current guidelines here: http://www.uscis.gov/files/form/i-864p.pdf

The Affidavit of Support must be filed at the same time as the green card petition.

If you don’t meet the income requirements, you have to find a joint sponsor for the green card petition, who is also a US citizen or permanent resident. Typically, this person would be a family member or a very close friend, although legally, it could be any person who meets the requirements. This joint sponsor must complete an additional Affidavit of Support, in which he or she attests that the beneficiary will not become a public charge.

Both Affidavit of Support forms, along with supporting documentation such as verification of salary and employment, tax returns, recent paystubs, etc. will be included in the green card petition.

If you find yourself in a situation where you are sponsoring your spouse to get a green card, please contact us in our offices in San Francisco, Santa Clara, and Sacramento. You can call us at 800-753-1399. We will be happy to assist you.