Archive for the 'Marriage Green Cards' Category

Unlawful Presence Part 4 – What is the procedure for getting a Hardship Waiver for unlawful presence

Published in I-601 Waivers and Marriage Green Cards, August 15, 2011

The first step in the Immigrant Visa process is to file a marriage petition in the US, (I-130), along with supporting evidence.

Once the marriage is reviewed by USCIS and the I-130 is approved, the case is forwarded to the National Visa Center (NVC). The NVC will then request more documents to evaluate if the foreign national is eligible and forward the case to the US embassy in the applicant’s native country.

The embassy will schedule a marriage interview to evaluate whether the marriage is legitimate. The embassy will also identify different bars to immigration (grounds of inadmissibility). There are several bars to immigration, but by far the most common is the unlawful presence bar.

If a foreign national is subject to unlawful presence, the embassy will ask them to file an I-601 hardship waiver. This application must be thoroughly prepared and contain supporting evidence to prove that the United States citizen spouse would face extreme hardship if the foreign national was forced to return to their home country.

The I-601 waiver is not processed by the embassy, but forwarded to the nearest immigration office in the native country of the applicant. The decision can take several months or longer, during which time the applicant will have to wait in his or her country.

Once the waiver is granted, the person can return to the United States as a permanent resident.

However, if the waiver is denied, the person has the right to appeal. If the appeal is denied, they will have to wait outside the United States for either 3 or 10 years, even if they are married to a US citizen or have children in the United States.

It is very important to be well prepared and have an experienced immigration attorney represent you in this process. 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.

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Unlawful Presence Part 3 – The I-601 Waiver

Published in I-601 Waivers and Marriage Green Cards, August 15, 2011

To obtain a waiver of unlawful presence to be able to re-enter the United States, you have to show extreme and unusual hardship to your spouse who is a US citizen or lawful permanent resident or son or daughter of a United States Citizen or Permanent Resident.  Please note unlawful presence prior to April 1, 1997 may not be considered for inadmissibility.  (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).

What exactly falls into the category of extreme hardship?

Here are some of the most common factors that are looked at:

Medical hardship: For example, the US citizen has a serious disease such as cancer and needs his or her spouse to help with medical treatment or financial support.

Psychological hardship: Everybody will experience some level of psychological or emotional hardship if separated from his or her spouse, but that is not enough to qualify for a hardship waiver. For example, if the US citizen spouse is unusually vulnerable because of traumatizing experiences in the past; this could demonstrate that this psychological hardship is more than the usual pain of separation from a spouse.

Community ties: Would the US citizen be able to live in the native country of the spouse? Do they speak the local language? Would they be able to integrate in the local community? Or would they have to face extreme hardship by moving to the country of the spouse?

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.

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Unlawful Presence Part 2 – Waivers

Published in Marriage Green Cards, August 1, 2011

In my last post I discussed how an unlawful presence is incurred and how it can bar you from immigrating to the United States or even from getting a temporary visa. In this article, I would like to discuss how to get a waiver.

Before doing that, let’s have a look at some special scenarios.

Unlawful presence is only triggered when someone leaves the United States. If you have entered the country legally, let’s say on a tourist visa for example, your visa has expired and you’ve married a US citizen, you would be able to process your case within the United States and thus not have a problem with unlawful presence (please note that if you entered on the Visa Waiver Program and overstayed you should consult an immigration attorney before adjusting status to determine whether or not you are able to adjust your status).

Unlawful presence comes into the picture when you’ve entered the country illegally in the first place and have no way of adjusting your status or of processing your case within the country. The moment you leave the United States to get a visa from a US embassy in another country, you trigger the unlawful presence bar.

So, what do you do, when you are in this situation?

Waiver for unlawful presence.

The I-601 waiver – The most common cases are Green Card cases, where somebody wants to come back to the United States to be with their spouse.
To get a waiver of unlawful presence, you have to show extreme and unusual hardship to your US citizen or permanent resident spouse (if your application is based on marriage to a US citizen).

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.

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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.

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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.

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Green Card Through Marriage – San Francisco green card lawyer

Published in Marriage Green Cards, February 15, 2011

Every year more than 400.000 US citizens petition for their non-US citizen partners to obtain a green card for the US. The process of application for a marriage based green card is usually much faster than for other types of green cards, since they are exempt from the quota limitations.

The applicants have to supply evidence that they are legally married to a U.S. citizen. Certified copies of marriage licenses or certificates are often a necessary component of this requirement, as is a proof of termination of any previous marriage.

Demonstrating that you are married is straightforward:  ( please note that there are a myriad of additional documents that must be submitted with a green card application in addition to a certified copy of the marriage certificate).

The couple must be legally married. Marriages are acknowledged as long as they are legal in the place where they were made. Neither partner can be married to someone else at the same time.

The two most common scenarios on the path to a green card:

K-1 Fiancee Visa – for couples not yet married

The K-1 Fiancee Visa is for those foreign nationals, who are not yet married to a US citizen, but intend to do so and remain permanently in the United States. This visa is only given to fiancées of US citizens, not to fiancées of green card holders. For the K-1 Visa, proof of the relationship and engagement have to be provided.

After entering the US on a K-1 fiancee visa, the marriage must take place within 90 days. After the marriage has been made legal, the holder of the K-1 visa has to apply for a change of status to obtain a green card.

K-3 Family Visa – for couples already married outside the US

Immigrants who are already legally married to a US immigrant can enter the US on a K-3 family visa. The K-3 visa was originally designed by the congress to bridge the long wait for an immigrant visa.

There are a number of factors to consider when applying for a fiancee visa, marriage visa or marriage based green card. For further details on the matter, please refer to our Marriage Based Green Card page.  Before you take any further actions, it is best to consult an experienced immigration attorney to help you make the right decisions.  Contact us at 415-986-6186 to schedule a consultation at our San Francisco, Santa Clara or Sacramento office.

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