Falling in love very PERMANENTLY with a US Citizen while on a very TEMPORARY visa

There are certain types of visas where you cannot have a "dual intent" - as in you can't intend to remain in the U.S. permanently when you very clearly entered for temporary reasons.  Those visa categories include B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, E-3 Visa Holder, Q Cultural Exchange Visitors, TN Visa Holders, and ESTA Visa Waiver Visitors.  So what happens when you meet the love of your life who happens to be a US citizen and who happens to want to marry and petition for you to remain in the country permanently?  Immigration has adopted the “30/60/90 Day Rule” used by the Department of State in their Foreign Affairs Manual (9 FAM 40.63 n4) when looking at changes to a visa that are made shortly after arriving in the United States.  Here is what you need to know about that rule:

(1) If this was love at first sight, my advice would be...SLOW DOWN.  If you marry within 30 days of your arrival, and then file for your residency also within that 30 days, your marriage is PRESUMED to be a fraud.  Immigration officers are not romantic.  They do not believe you fell in love 5 days after arriving and you just couldn't wait to get married. This presumption is virtually impossible to overcome.

(2) If you get married between 31 and 60 days of your arrival, and you file for your residency within that time as well, that takes you out of the PRESUMED fraud category, but there will still be a strong presumption that the marriage was entered into "in bad faith," i.e. just because you want a green card.  This means that the application will be looked at very closely, and that when the interview comes around, you will be scrutinized.  This would likely include being separated during the interview and being asked everything from which side of the bed you sleep on, to where your spouse keeps their socks.  It could also mean what immigration likes to call "bed checks,"  which involves them showing up at your house unannounced at an ungodly hour in the morning or night to check and see that both of you are actually living together. 

(3) If you marry and file 61 days or more after your entry into the country, the presumption will be that your marriage is real.  Even though case law indicates that your intent when you entered the country (i.e. the fact that you inteded to stay here for longer than your visa allowed) shouldn't be a grounds for a denial of your residency, it is always best to wait (if you can) and file for your residency at least 61 days or more after you entered the US. 

(4) All of the above does NOT apply if you entered the country on a Visa Waiver - that would mean that you are from what immigration likes to call a "preferred country" where you do not need to obtain a visa before entering the US, but rather you just fill out a little card on the plane that states you aren't going to stay beyond your authorized 90 days.  Generally, people who entered on a visa waiver cannot apply for residency UNLESS they have an IMMEDIATE RELATIVE who is applying for them, in this case, a US Citizen husband or wife.  In this situation, you want to marry AND file everything BEFORE the expiration of your 90 day visa.  This cut off date is VERY IMPORTANT because while filing after the 90 days has expired is possible, it is much more risky. 

As always, I have tried to describe all of this in the most simple terms and you should seek competent legal advice if you think any of the above applies to you.

New SHORTER Procedure for Applying for a Green Card Outside of the U.S.

On January 2, 2013, the Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances.  This rule allows qualifying applicants to apply for a provisional unlawful presence waiver before they leave the United States for their immigrant visa interviews in their home countries. 

This is for people who have US Citizen immediate relatives applying for them, but will need to leave the U.S. to complete the process in their home country.  This is called Consular Processing and involves applying for an immigrant visa to reenter the United States as a lawful permanent resident - i.e. green card holder.  The problem that most people have in this situation have usually been in the US for a long period of time, so when they exit the US they trigger a bar to their return.  Most commonly, people trigger what is called the 10-year bar because they have been in the US without permission for over one year.  This only applies to people who have ONE entry into the US and when they leave for their visa appointment it will be their FIRST exit.  If you have more than one entry or exit, depending on how long you were in the country on each visit, you are likely NOT eligible to consular process. 

Now, once an applicant triggers the bar, in addition to applying for their visa to return to the US, they also need to file an I-601 waiver for the time they were here without permission.  This is basically asking immigration to waive or "pardon" the time they were here when they shouldn't have been.  BEFORE this new rule, people would file their waiver in their home country and wait for a decision.  Decisions could take months or even years, and the applicant would be required to wait outside the country for that entire time. 

This new rule, allows certain individuals to file their waivers HERE in the US and wait for the decision HERE.  That way, before they go to attend their visa interview in their home country, their waiver will have already been approved (hopefully) and instead of waiting months/years for a decision, they are merely out of the country for the amount of time it takes to obtain their visa -- usually a matter of weeks. 

In order to be eligible for the waiver under the new rule the applicant must:
(1) be an IMMEDIATE RELATIVE of a US Citizen (this means Spouse, Parent or Child - sorry, siblings don't count)
(2) be the beneficiary of an approve immediate relative petition (Form I-130 filed by one of the above listed relatives
(3) be 17years of age or older
(4) be present in the US at the time of filing the application for a provisional waiver and for biometrics (fingerprints) their local application support center
(5) have a case pending with the Department of State based on the approved I-130 petition and have paid the immigrant visa processing fee
(6) show extreme hardship to US citizen spouse or parent

PLEASE NOTE #6 - this is where it gets a little tricky: while your US Citizen over 21 CHILD can petition for you, the extreme hardship cannot be BASED on them.  So basically, you have to be married to a US citizen or you have to have a US citizen parent that you can base the hardship on.  This part is complicated, I know, so make sure you seek competent counsel before filing. 

The new rule will take effect on March 4, 2013.  It will definitely benefit so many people who had not yet filed because they did not want to take the risk of being stuck outside the US for an extended period of time.  That being said, it has very SPECIFIC eligibility requirements and you should seek legal counsel to determine your own eligibility.

Citizenship Immigration Clinic

I will be volunteering at the below event, giving consultations on DACA (Dreamers) and in some cases, on green card applications.  Call the number below to make an appointment!

 

Citizenship/Immigration Clinic

Saturday, Feb. 2, 2013

9:00 a.m. – 2:00 p.m.

Office of Samoan Affairs

20715 So. Avalon Blvd, (2^nd Floor)

Carson, CA 90745

Citizenship – DACA – One Parent National Law

FREE APALC Consultation Services!

For More Information & to make a consultation appointment:

(you will be provided with a list of documents to bring with you

during your appointment).

Call Kawen T. Young at 310-766-3196 or 310-516-8312

DERIVATIVE CITIZENSHIP - are you a citizen and you don't even know it?

Derivative Citizenship is citizenship that you gain after your birth, through the naturalization of one of your parents.  This is different from citizenship by descent which you acquire at birth and can be conferred to you, even if you were born outside of the U.S.  Let me warn you that in certain situations, depending on (1) when you were born, (2) when your parent(s) naturalized and (3) how hold you were when your parent(s) naturalized, there is a very complicated CHART involved in figuring out whether or not you can claim derivative US citizenship and what you need in order to prove your eligibility.  I am going to talk about the most simple situations in this blog. 

The current law that governs this is called the Child Citizenship Act (CCA) and came into effect on 2/26/01.  The CCA allows certain children of American citizens to get American citizenship automatically. These children did not acquire American citizenship at birth, but rather are granted it following their parents' naturalization.  Under the CCA, you can automatically acquire US Citizenship on the date that all of the following requirements are met:

• At least one parent is a US citizen, whether by birth or naturalization
• You are under age 18
• You are currently residing permanently in the US in the legal and physical custody of a US citizen parent
• You are a lawful permanent resident

Those simple requirements are ONLY for people who were under 18 at the time CCA went into effec (i.e. 02/27/01).  If you were OLDER than 18 on that date, then you do NOT qualify for automatic citizenship, but rather you are subject to the chart I mentioned above and would have to file an application to prove your eligibility.  Now that being said, even if you do fall under all of the requirements above - you effectively have NO proof of your citizenship because all you have is a green card and the knowledge that you fulfill all the requirements on the list.  IF you want proof of your citizenship on PAPER, you need to either (1) apply for a US Passport or (2) file Form N-600, Application for Certificate of Citizenship.  In my experience, I find that it is more effective to file the N-600 before trying to get your passport.  Despite the fact that the law is clear on this matter and you are, under the law, a US Citizen, most passport offices will not approve your passport application without a Naturalization Certificate. 

As stated above, if you were over 18 at the time CCA was enacted, all is not lost, you simply need to seek the advice of a competent immigration attorney who can determine your eligibility and what you will need to prove your derivative citizenship.  In your case, you will have to file an N-600 with documentary evidence of your derivative citizenship.  That evidence varies depending on when you were born and when your parent became citizens. 

Naturalization/DACA workshop this weekend sponsored by the Office of Samoan Affairs in Carson, CA

I will be attending the event below.  I will be providing information and assitance with Deferred Action for Childhood Arrivals (DACA) applications, as well as consultations regarding eligibility for permanent residency. 

 

Naturalization (Citizenship) Workshop

Saturday, Dec. 8, 2012

9:00 a.m. – 2:00 p.m.

Office of Samoan Affairs

20715 So. Avalon Blvd, (2^ndFloor)

Carson, CA 90745

Citizenship – DACA– One Parent National Law

FREE APALC Consultation Service includes:

ü Check your eligibility for citizenship

ü Consultation on eligibility issues

ü Help completing your naturalization application (U.S. Nationals/Permanent Residents-Green Card Holders)

ü Pre-Screen individuals if qualify for FEE WAIVER for

application

ü Help preparing for your citizenship interview and exam

ü “Self-filing” your application with USCIS

For More Information & to make a consultation appointment:

(you will be provided with a list of documents to bring with you

during your appointment).

Call Kawen T. Young at 310-766-3196 or 310-516-8312

 

Preserving your status as a "child" for immigration purposes

In 2002, Congress passed the Child Status Protection Act (CSPA), changing who can be considered a "child" for immigration purposes.  Before 2002, when a child turned 21 he/she was no longer eligible to immigrate with his/her parents - regardless of how long they may have been waiting.  This would mean that parents would get their residency and immediately turn around and petition for the children who had "aged-out," which resulted in their now adult children being basically kicked to the back of an even longer line than the one they had been waiting in with their parents.   

With the enactment of CSPA, children who had "aged-out" are, in some circumstances, allowed to remain children (i.e. under 21) for immigration purposes.  The "circumstances" I am referring to can often be complex and vary depending on the type of petition, who was petitioning, and the preference category.  The most common situation is the one I described above, where a parent is the direct beneficiary to a non-immediate relative petition, and the child is a "derivative" - i.e. the petition wasn't filed specifically for them, but the mere fact that they are the child of the principal beneficiary (their parent) makes them eligible to be attached to the application.  ** Please note: by non-immediate relative, I mean that the person who filed for the parent was not their: (1) USC spouse or (2) over 21 USC child - in those cases, there are NO derivatives allowed.  Often times, the parent has to wait months or even years for their petition to be approved and in that time, their derivative child turns 21.  Through CSPA, those months/years that they had to wait for their approval can be subtracted from the child's age and if after the math, the child is under 21, then they can immigration with their parents.  This basically ensures that kids are not punished for how long it takes USCIS to process a petition. 

Until a recent 9th Circuit Court of Appeals decision, this calculation, called an automatic conversion was only allowed in situations where the original petition was an F2A petition - meaning it was filed by a resident spouse or parent.  So, in situations where a US citizen brother or sister applied for a person, a child who was a derivative on that petition could not subtract the time it too that petition to be approved from their age.  In September, the 9th Circ. in De Orosorio v. Mayorkas, held that the plain language of CSPA provides automatic conversion and to aged-out beneficiaries in all family based categories.  So that means, if your mom's sister filed for her waaaay back when, and you were under 21 at the time, depending on how long it too for that petition to be approved, you may still be under 21 for immigration purposes and you could possibly get your green card too. 

Other things can freeze someone's age under 21 as well.  For example, if a resident father files for his son and then becomes a US citizen before that son turns 21 - his age is frozen under 21 and the petition his father filed becomes an immediate relative petition - i.e. it is immediately available for use - no waiting in line for your date to come up. 

There are also this which make someone INELIGIBLE for CSPA.  For example, if you are the derivative on your mom's petition from your resident grandfather.  The petition takes several years to be approved, and then several more for the priority date to become current.  If in that time YOU get married, even if the automatic conversion would have worked to freeze your age under 21, your marriage rendered you ineligible to make use of it. 

In addition to the above scenarios, there are a MULTITUDE of other situations which can arise which may affect your eligibility in both positive and negative ways - including things your parents may have done while waiting for their petition to be approved that can affect you and your eligibility to "ride" on that petition.  That being said, as always, you need to seek out competent legal advice.

Getting Rid of Your Criminal Conviction

As I pointed out in my last blog, the crossover between immigration and criminal law is one of the most complex areas of law today.  Non-citizens facing criminal charges risk not only criminal consequences such as imprisonment or fines; they also risk the severe consequence of deportation or removal from the United States.  It is imperative, that non-citizens have criminal counsel that understands both criminal law and immigration law in order to ensure that the conviction or plea is not going to have a devastating effect on their immigration status. 

In this installment, I want to talk about the most common motions for post-conviction relief here in California.  First, is the motion to vacate a conviction based on the fact that you did not get the proper advisals from the court at the time you pled to the crime.  This falls under California Penal Code sec. 1016.5 which, in summary, states that as part of taking a person's plea, the court must state:

 

"If you are not a citizen, you are hereby advised that conviction
of the offense for which you have been charged may have the
consequences of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the
United States."

If the court did not state that advisal exactly as it is worded above, or in a way that included; deportation, exclusion from admission, or denial of naturalization; you can go back to court and have their conviction vacated.  With that being said, the ENTIRE criminal file must be reviewed by an attorney to determine if the court gave the advisal - it is NOT enough that you think the judge never said that.  Also, in many instances, these convictions are very old and the criminal files have been partially or completely destroyed.  An attorney must review the documents so that they can ascertain if you have enough (or in some cases if enough has been destroyed) to make an argument for vacature. 

Second, and MARKEDLY more difficult, is a motion to vacate based on the fact your previous defense ATTORNEY did not give you the proper advisals before taking a plea.  This motion is based on a decision from the US Supreme Court, Padilla v. Kentucky.  In that case, the Court found that no criminal defendant, whether a citizen or not, should be left to the “mercies of incompetent counsel”.  They went on to hold that criminal counsel must inform their clients whether their plea carries a risk of deportation.  Many criminal defense attorneys already advise clients about the fact that their plea may have immigration consequences.  The Supreme Court’s decision, however, holds that those advisals are constitutionally required and that a failure to provide them constitutes ineffective assistance of counsel.  Again, the entire criminal record must be reviewed so that your current attorney can determine who your last attorney was (which can sometimes be difficult if you had multiple public defenders) so that they can speak/consult with them regarding the case. 

With each of these motions, there is a "diligence" requirement, which basically means that you have to act to DO something about your conviction within a reasonable time of discovering it could hurt your immigration status.  This is often a sticking point for criminal courts because many people do not realize their conviction put their immigration status at risk until they go to renew their green card, or apply for naturalization.  This can mean that sometimes a DECADE has gone by since being convicted before you realize something is wrong and you need to go back to criminal court. 

Third are the smaller motions that can sometimes work to ameliorate immigration consequences, but not necessarily get rid of them all together.  For example, certain crimes for which you are sentenced to 365 or more, are considered AGGRAVATED FELONIES for immigraiton purposes.  If you have been convicted of an aggravated felony, that renders you ineligible for really ANY relief from removal in front of a judge.  If, however, you are able to go back to criminal court and REDUCE that sentence from 365 to 364, then you may at least be able to present your case to an immigration judge re: why you should not be removed from the U.S.  That is a motion to reduce, and similar to the above, it has a diligence requirement and often times, a jurisdiction problem that some courts will over look - others won't.  Most good post conviction relief attorneys will know whether the courts in their area will grant that type of motion or not - sometimes down to the judges that will and judges that won't.

Also, if you are in the Ninth Circuit Court of Appeals (CA, AK, AZ, HI, ID, MO, NV, OR, WA) a conviction for simple possession of a controlled substance can be expunged as long as that conviction was before July 14, 2011.  An expungement prior to that date will be effective for immigration purposes - i.e. if that is the only reason you are before the immigration judge, your case can be quickly resolved - but it is only effective for ONE simple possession conviction. 

 

As always, but perhaps even MORE so in instances where immigration and criminal law cross, it is VERY important to seek competent legal counsel.