Articles Posted in Family Immigration

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A headline story in this week’s Sunday Chicago Tribune announced that up to 8 million people could be deported as a result of Trump’s Executive Order “Enhancing Public Safety in the Interior of the United States.”  Although the Trump administration insists that their intent is to find and deport “bad people”, the Executive Order allows immigration agents and local and state police to detain nearly anyone they come in contact with who has crossed the border illegally.  The consequences could be dire, for immigrants and their families, and for the United States.  While the enforcement priorities under Obama targeted 1.4 million people for deportation, under the new enforcement policies, nearly everyone who is in the country without proper documentation is at risk. The Tribune (citing a Pew Research Center study) said as many as 5.5 million people in the country crossed the border without proper documentation.  The remaining 6 million estimated undocumented people came to the U.S. on some type of legal visa, and overstayed  the time they were permitted in he United States.

The new Enforcement Policy includes anyone convicted of a crime, and also anyone charged with a crime, or anyone who committed a crime but was not arrested or charged.  This would include anyone who entered without a visa because illegal entry is a crime under 8 U.S.C. Sect 1325.  The order directs Department of Homeland Security to hire an additional 10,000 ICE officers for its deportation force, more than doubling ICE staffing.  Of course this expansion would require Congressional appropriations.

In additional to undocumented persons who were convicted of, arrested for, or committed but not arrested for crimes, the order targets those who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency, anyone having abused any program related to receipt of public benefits, any anyone who is subject to a final order of removal and failed to leave.  Note there is no ranking of these deportation priorities, making them equal in importance.

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Senators Dick Durban (Dem.- Illinois) and Lindsey Graham (Rep.- South Carolina) have introduced legislation titled “The Bridge Act” to allow people who have received work authorization through Deferred Action for Childhood Arrivals (DACA) an extension of their status for a three-year period.  DACA is a program initiated by President Obama in 2012 creating work authorization for certain undocumented persons who came to the United States as children.  DACA was created by Executive Action and President -Elect Trump has promised to repeal all of President Obama’s Executive Action programs on the day he takes office, eliminating DACA and leaving DACA recipients in a vicarious position.    DACA provided more than 730,000 undocumented aliens with temporary work authorization and deferred action from deportation and was renewable every two years.  The Bridge Act would make it possible for DACA recipients and others that qualify under DACA eligibility “provisional protected presence” and work authorization for three years.  The Bridge Act also imposes restrictions on the sharing of information from DACA applicants with USCIS Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CPB).  The bill has bi-partisan support in the senate, however we don’t know yet whether it will pass both houses and become law.

The Bridge Act will have the same criteria as the DACA program.  Like the DACA program, The Bridge Act does not grant legal status or a path to a green card.  It merely provisionally protects qualified applicants from deportation and allows them temporary work status.  Since the new administration’s immigration policies are uncertain, be sure to consult a qualified immigration lawyer before you file a DACA application.

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As discussed in our last blog post about provisional waivers, a requirement for obtaining the waiver for unlawful presence is a finding of “Extreme Hardship” to a US Citizen or LPR spouse or parent.  This person is known as the Qualifying Relative and must be a US citizen or LPR spouse or parent – not a US citizen or LPR child or children.  Recently, USCIS published new policy guidelines that define the term Extreme Hardship and guide USCIS adjudicators on the types of evidence that qualifies as Extreme Hardship.  In general, two types of Extreme Hardship are addressed: 1) Separation- when the qualifying relative remains in the United States and is separated from the applicant who is residing abroad, and 2) Relocation- when the qualifying relative suffers by having to relocate abroad to join the applicant.

Extreme hardship must be more that the common consequences of family separation and relocation.  Common consequences of being removed from the  United States or denied admission to this country are difficulties to the Qualifying Relative in adjusting to a new country, quality and availability of education opportunities abroad, inferior quality of medical care and services and the ability to pursue a chosen career abroad.  To establish extreme hardship, it is not necessary to prove that a single hardship alone rises to the level of extreme, but rather all of the relevant hardship factors are considered in the aggregate.  Further, extreme hardship determinations made are based on the “totality of circumstances,” which may be the hardship factors themselves, arguments made in the application and the types of evidence submitted.  The USCIS will consider as evidence of relocation hardship published documents such as Department of State travel advisories to particular countries, Department of State published Country Conditions and  Human Rights Reports.

One of the most important documents in an application for a Provisional Waiver is the statement of the Qualifying Relative.  This credibility of this statement is paramount in getting a provisional waiver application approved.  Putting together a good application for a provisional waiver requires well-organized documents and evidence  to support the QR’s statement.  You should seek the counsel of a qualified attorney experienced in waivers of inadmissibility, who can guide you in determining the best arguments for your particular circumstances and based on the evidence you are able to provide for a successful waiver application.

 

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In this posting, lets briefly take a look at Provisional Waivers.  Waivers for Unlawful Presence in the U.S. have been historically used by persons filing outside of the United States and undergoing Consular Processing to receive an immigrant visa to enter the United States.  Under this scenario, the applicant must remain outside of the United States while his/her I-601 waiver is being adjudicated.  In the past, families often had no choice but to be separated for periods of time of one year or more.  The Provisional Waiver was initiated in 2013 by the administrative rules process and is now a codified Federal Rule.  With an approved Provisional Waiver for Unlawful Presence, the applicant will eventually leave the United States to consular process,  but will be permitted to file the I-601 Application for waiver from the United States and can remain in the U.S. while the application is pending.  If everything else is satisfactory and there are other inadmissibility issues, the applicant will likely be out of the country for a just few days to complete visa processing at the consulate, and  re-enter the United States with permanent residence status.

Provisional Waivers can waive unlawful presence 3 and 10 year bars if a person meets the following criteria:

  • You are physically present in the United States
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On December 23, 2017, USCIS fees for most applications will increase by an average 21%.  Any applications filed on or after December 23, 2016 will require the new fee.  Be advised that there are significant increases for some applications.  There is a new 3-level fee structure for Naturalization applications.  The N-400 application fee will increase from $680 (including the biometrics fee) to $725 (including the biometrics fee).  A reduced fee of $405 (with biometrics fee) will apply to applicants with household income greater than 150% but not more than 200% of federal poverty guidelines.  No fee will be charged to certain applicants with military service or those with approved fee waivers.  The fee for an Application for Certificate of Citizenship (N-600) for those applicants who derived citizenship through biological parents will increase by over $570- from $600 to $1,170 (without the biometrics fee.)   Temporary Employment Authorization fees will increase from $360 to $575 (plus $85 biometrics fee).  K-1 Fiance petitions will increase from $340 to $535 and I-130 immigrant petitions will increase from $420 to $535.  The new fees are located on the USCIS.gov website.

If you have been putting off filing your application – the new President taking the oath of office on January 20, 2017, and the upcoming fee increases should give you incentive to file immediately for any immigration benefit you might qualify for.  You should consult with an experienced immigration attorney to see if you qualify for legal status by means of immigrant visas through family members – even if you entered this country without documentation or overstayed a visa.  These things can sometimes be cured by a waiver for qualified applicants.

 

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Last week, the United State Supreme Court issued its ruling in the case regarding President Obama’s executive actions on immigration. In United States v. Texas, the Supreme Court was split 4 to 4. Because the Supreme Court was unable to come up with a majority, the ruling of the 5th Circuit Court of Appeals is affirmed. The decision, which affects millions of individuals without status in the United States, was just nine words long: “The judgment is affirmed by an equally divided court.” As you may recall, the 5th Circuit struck down President Obama’s executive actions on immigration last year. That ruling is effectively still in place because the Supreme Court 4-4 split affirms that judgment.

This decision is a major setback for President Obama as he had hoped to have the new DAPA and expanded DACA in place prior to leaving office in January 2017. Because the 5th Circuit decision struck down the president’s executive actions, President Obama will not be able to implement his much anticipated reforms. After the decision, many politicians and activists criticized the Supreme Court as well as Congress for failing to pass comprehensive immigration reform.

Responding to the decision, President Obama said “I think it is heartbreaking for the millions of immigrants who made their lives here, who’ve raised families here, who hope for the opportunity to work, pay taxes, serve in our military, and fully contribute to this country we all love in an open way.” While the Supreme Court split effectively ends the legal battle regarding the president’s executive actions, attention will now shift to the presidential election as the two major candidates will have to outline their immigration policies for the country as the campaign wages on.

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As a Chicago immigration lawyer focused primarily on the family immigration, one of the questions I am asked most frequently is – “which is better, to bring my overseas fiancé to the United States and marry in my home state, or marry overseas and apply for an immediate relative visa for my spouse?” Although it depends on the facts of your particular case, all things being equal, the Immigrant Visa overseas route may be best for most cases.

A United States citizen can bring a foreign national spouse or fiancé to the United States in one of two ways: K-1 (fiancé) visa, or by applying for an immigrant visa after marriage and green card processing through the Consulate. In most cases, I recommend the Immigrant visa route for the following reasons:

  • Processing time is about the same. Many people are under the misconception that the fiancé visa route is faster. While this was true in the past, currently the processing times are just about equal for the K-1 and the IV.
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A lot of people think that in order for them to bring a loved one to the United States from another country, they must be married. But that’s not true. The United States has a visa for fiancés that allows you to petition for you fiancé to come to the United States prior to your actual marriage.

U.S. citizens who want to bring their foreign citizen fiancé to the U.S. to marry and live here should apply for a K-1 fiancé(e) visa to sponsor their fiancé’s travel to the U.S. The K-1 visa allows the foreign national to come to the U.S. to marry their U.S. citizen fiancé(e) within 90 days of their arrival. The marriage must take place within those 90 days or your fiancé(e) will be required to leave the U.S.

In order to qualify for a K-1 visa, you must meet the following requirements to be eligible to petition for a fiancé(e) visa:

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Today, the United States Supreme Court announced that it will hear an appeal that from the Obama Administration involving President Obama’s executive action on immigration. The case, while not scheduled for oral arguments yet, will be heard later this spring, likely in April, with a decision likely in June. Twenty-six states sued the federal government over President Obama’s plans to expand DACA and create DAPA. A federal district judge enjoined the Obama Administration from proceeding with implementing its new immigration plans while the lawsuit was heard in court. An appeals court upheld the injunction late this summer. The name of the case is United States v. Texas. For more information about this case, view our previous blog posts and be sure to monitor our blog for future updates.

If you have any questions of for more information you should contact an experienced immigration attorney.

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The lawsuit regarding President Obama’s executive actions on immigration has been making its way through the federal court system for over a year now. Just this week, a new development in the lawsuit took place. Below is a brief history of the lawsuit followed by the most recent update.History of the lawsuit:

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