Immigration Visa Attorney Blog

It is an exciting time for many foreign nationals living in the United States. During the last four months, the EB-2 priority dates for India and China have moved forward over two years. As a result, many employment-based immigrants have been able to file Applications for Adjustment of Status earlier than they ever expected. At times such as this, many forget about the possibility of Visa Bulletin retrogression, the "rolling back" of priority dates.

Visa Bulletin Retrogression is of particular concern for foreign nationals that are intending to or already are married. Spousal concerns can prevent or delay the filing of Adjustments of Status Applications. Such, when combined with Visa Bulletin retrogression can be devastating. As the Department of State has recently stated that Visa Bulletin retrogression is likely to occur soon (See HERE) we thought we would take the opportunity to discuss two common issues that face employment-based Adjustment of Status Applicants with regards to their families:

Delaying Adjustment of Status due to Impending Marriage

United States immigration law permits only pre-existing spouses to immigrate to the United States with the principal employment-based immigrant. That is, a couple must be married before the employment-based immigrant receives their green card. Thus, intending employment-based immigrants sometimes delay filing for Adjustment of Status until after they are married so that their new spouse can immigrate to the United States with them.

Continue reading "Visa Bulletin Retrogression: Consequences for Spouses" »

Sometimes family members get left out of the immigration process. Costs, logistics, family obligations and other inconveniences can prevent a family member from coming to the United States.

There's no need to worry, though, United States Immigration officials have anticipated this situation. We'd like our friends here in Columbus to make sure they're aware of a potentially helpful tool.

Following to join allows a spouse or child of a principal immigrant to immediately obtain a visa to immigrate to the United States any time after the principal immigrant becomes a lawful permanent resident of the United States. There are, though, some major limitations of following to join.

Following to join is only available to immigrants in categories that give derivative status to spouses and children. Such categories include family-preference immigrants and employment-based immigrants. Further, following to join only applies to preexisting spouses and children. Spouses and children added after an immigrant becomes a permanent resident cannot follow to join. Finally, children can "age out" of eligibility to follow to join.

In spite of the above limitations following to join is far more versatile than one might think. A family member that is following to join doesn't have to literally follow the principal immigrant to the United States. Spouses and children that are inside the United States as nonimmigrants can "follow to join" and adjust status through a principal immigrant, even if they precede the principal immigrant in entrance into the United States.

Considering its limitations, following to join is not for everybody. That being said, following to join is still a valuable and important part of the immigration toolbox. Using following to join to immediately obtain an immigrant visa for a spouse or child is an excellent way to avoid the long waits that can be associated with family based immigrant petitions.

Congratulations! Your I-130 petition has been approved! You worked hard, put together a good petition, and now your loved one can immigrate to the United States, perhaps joining you here in central Ohio, worry free. Right? Not always. Even after the United States Citizenship and Immigration Service (USCIS) has approved your I-130 petition, they can issue a Notice of Intent to Revoke (NOIR) and turn your world upside-down.

A NOIR is, essentially, a failsafe that allows USCIS to deny your I-130 petition after it has been approved. If, after your I-130 petition has been approved, USCIS discovers that it made a mistake in approving it, or discovers new information that shows you aren't entitled to approval, it issues a NOIR.

An NOIR letter should explain to the petitioner exactly why the I-130 is being revoked, setting forth the law and facts that, according to USCIS, show that the petitioner is not entitled to their approved I-130 petition. It should also inform the petitioner that they have a right to respond to the NOIR and explain why their NOIR should not be revoked.

So, you've gotten a NOIR in the mail. What can you do?

1. Respond--A NOIR will not go away. If you don't respond to it, USCIS will revoke your I-130 petition.

2. Act Fast--A NOIR should state a time period (often 30 days) in which you are permitted to respond to the NOIR. However you decide to respond to the NOIR, make sure you do so within the allotted time period.

3. Inspect the Record--You have the right to inspect USCIS's record relating to the I-130 that USCIS intends to revoke. Inspecting USCIS's record can help you find holes in the NOIR and allow you to make better factual and legal arguments in response.

4. Submit Evidence in Support of Your Arguments--Your response to the NOIR is your only opportunity to present evidence to USCIS. Don't waste it. You may be able to clear up USCIS's misunderstanding of the facts by providing them with better information.

Continue reading "Columbus, OH Attorney: Notice of Intent to Revoke: Know Your Rights!" »

Those residents of our local Columbus, OH community interested in being granted U.S. citizenship should make sure they are familiar with all parts of the process. An area which usually raises questions is continuity of residency.

To be eligible for Naturalization a lawful permanent resident needs to reside continuously in the U.S. for at least five years, or three years if married to a U.S. citizen and having lived with that same U.S. citizen during the entire residency.

The continuity of residence requirement needs to be met before filing a naturalization application.

Generally speaking, traveling outside the U.S. for less than six months does not interrupt continuous residence. But traveling outside the country for more than six months does raise a presumption that continuity of residence has been interrupted.

Such presumption can be rebutted by providing evidence to establish continuous residence, such as presence of immediate family in the U.S., non-termination employment in the U.S. or retention of full access to a U.S. home.

The burden of proof rests with the applicant. In cases where an applicant left the country to study abroad after they became a permanent resident, the courts have ruled that such study does not result in abandonment of residency. Li v. Chertoff, 490 F.Supp.2d 130 (D. Mass. 2007).

Continue reading "Continuity of Residence Requirement for Naturalization Application" »

For Fiancé and Marriage visa applicants, the interview at the Embassy can be the most stressful part of the process. The interview is also, arguably, the most important part of the process and, thus, it is important for applicants to be prepared. Though one might expect the application process to be somewhat standardized, each U.S. Embassy has different policies and procedures governing how visa applications are processed. Therefore, it is imperative for the visa applicant to research the Embassy they will be visiting in order to adequately prepare for the interview. It is highly advisable for any visa applicant to review the website of the Embassy they will be visiting for information on the specific policies and procedures of that Embassy. A Fiancé or Marriage visa applicant's interview will be scheduled at the Embassy with jurisdiction over their residence abroad.

Visa interviews are conducted by appointment only and it is vital that the applicant be on time for the interview. There is usually some form of security screening at the Embassy and applicants should allow time for security when planning their visit. Generally, after entering the Embassy, the applicant will check-in with a Consular Official and may be required to provide their visa application(s)/documentation for review. Upon checking-in, the visa applicant will usually be told to remain in the waiting area until their name/number is called. At some point, the visa applicant will be asked to complete a digital fingerprint scan. The applicant's documents , if previously collected, will be returned prior to meeting with the Consular Officer.

Continue reading "What To Expect In A Fiancé Or Marriage Visa Interview At The Embassy" »

In many parts of the US including Columbus, Ohio and Michigan, Refugees and Asylees struggle to find a new life and to forget their troubled past. The Child Status Protection Act (CSPA) offers much needed assistance to them. As we discussed in prior blogs, the Child Status Protection Act (CSPA) prevents certain foreign national children from losing their preferential immigration benefits due to "aging out" at 21 years old. The asylum and refugee provisions of the CSPA are especially vital in helping to keep families together. Sections 3 and 4 of the CSPA provide special assistance to the unmarried children of asylees and refugees whether accompanying or following-to-join their parent. The CSPA allows the children of asylees and refugees to maintain their child status and, thus, their eligibility for derivative status even after reaching the age of 21 years old.

For the most part, so long as the child of the asylee or refugee was under the age of 21 when their parent applied for asylum or refugee status, they will be eligible for derivative benefits even after attaining the age of 21 years old. To qualify as a child included on an asylum or refugee application, the aging out child must be listed on Form I-589 or Form I-590, respectively, prior to a final determination on the application. Indeed, a parent can add a child of any age to their asylum application before it is adjudicated, and the child will be entitled to derivative benefits so long as the application was originally filed while the child was under 21 years of age.

The asylum and refugee provisions of the Child Status Protection ACT (CSPA), also apply to children whose parents did not include them on their asylum or refugee application. If the asylee or refugee did not include their child on their application, the aging out child may obtain derivative status if their parent filed Form I-730 within two years of being granted asylum or refugee status. If Form I-730 was pending at the time the CSPA was enacted, a child who aged out would still be eligible for derivative status if the I-730 petition was originally filed before the child turned 21 years old. The USCIS even considers an approved I-730 application to be pending if the U.S. Embassy or Consulate has not issued travel documents. Asylees and refugees, by definition, have experienced extremely difficult circumstances in their lifetime, but they can be encouraged by the fact that laws exist to help keep their family together.

Many of our Family Immigration clients in Columbus, Ohio and in Michigan and elsewhere share their frustration that notwithstanding near a decade passage of the Child Status Protection ACT (CSPA), USCIS continues to struggle with its interpretation. I explained in my prior blog, The Child Status Protection Act (CSPA), enacted on August 6, 2002, contains remedies for foreign nationals claiming a "child" status who are in jeopardy of losing their immigration benefits due to aging out. Though the Child Status Protection Act (CSPA), was enacted in 2002, the United States Citizenship and Immigration Services (USCIS) were still changing its interpretation of the CSPA's provisions until 2008. In particular, foreign nationals who had an approved immigrant visa petition prior to the CSPA's inception, but had not filed a green card application before August 6, 2002 were initially not eligible for the CSPA's benefits.

In guidance issued in February 2003 and August 2004, the USCIS reiterated their initial position: that the provisions of the CSPA took effect on August 6, 2002 and were not retroactive. Thus, benefits would only be available to foreign nationals who aged out on or after August 6, 2002. The only exceptions for foreign nationals who aged out prior to August 6, 2002 were for those who had a visa petition either pending on August 6, 2002 or had an approved petition with a green card application pending on August 6, 2002. Interestingly, pending for the purposes of visa petitions includes appeals or motions to reopen filed with the Board of Immigration Appeals (BIA) or the Administrative Appeals Office (AAO) on or before August 6, 2002.

The USCIS' policy shift was not voluntary, rather mandatory in light of the BIA's decision in In Re Rodolfo Avila-Perez in February 2007, holding that it is not mandatory for a foreign national to have an application for adjustment of status or immigrant visa pending on August 6, 2002 to be eligible for CSPA benefits. Accordingly, the USCIS revised its previous position regarding the retroactivity of the CSPA provisions. Currently, qualifying foreign nationals who aged out prior to the CSPA's implementation can file a new green card application to take advantage of the CSPA. Additionally, foreign nationals whose green card applications were denied due to age can file motions to reopen or reconsider. It took the USCIS a long time to settle on the appropriate interpretation of the CSPA, but fortunately the correct conclusion was reached: that the benefits of the CSPA should have retroactive application to certain foreign nationals.

From Columbus, Ohio and Troy Michigan and beyond, The Child Status Protection Act (CSPA) gives children of immigrants badly needed protection form government slow immigration processing. The Child Status Protection Act (CSPA) was first enacted on August 6, 2002 for the purpose of allowing certain children of lawful permanent residents or naturalized U.S. citizens to maintain their "child" status through 21 years of age. Increasingly, processing delays at the United States Citizenship and Immigration Services (USCIS) were causing children to lose their eligibility for certain visa classifications due to "aging out" or turning 21 years old.

In general, the Child Status Protection Act (CSPA) provides that the age of a foreign national claiming a child classification will be frozen upon the occurrence of various events, depending upon the type of petition pending. For example, if an immediate relative petition was originally filed, the CSPA considers the foreign national's age to be fixed as of the date Form I-130 Petition for Alien Relative was filed. If Form I-130 Petition for Alien Relative was filed while the foreign national was 20 years old, the foreign national's age for visa classification purposes would be frozen at 20 years old until a visa number became available.

The CSPA contains special provisions for children whose lawful permanent resident parents naturalize, children self-petitioning under The Violence Against Woman Act (VAWA), and married children whose marriage is subsequently terminated. Additionally, the most recent guidance from the USCIS allows retroactive application of CSPA benefits to foreign nationals who had an approved immigrant visa petition prior to the establishment of the CSPA, but had not yet applied for a green card by the date the CSPA was enacted. This development in CSPA interpretation allows many foreign nationals who never filed a green card application, or had their application denied due to age, to refile.

The CSPA provisions are anything but easy to comprehend. Originally, the USCIS even had some difficulty in determining how the provisions of the CSPA should be interpreted and, for many years, was continually issuing revised guidance memoranda. There has been well documented cases of improper denials by USCIS since 2002. Notwithstanding the confusion, it is in the best interests of any foreign national in danger of aging out to fully understand and avail themselves of the benefits of the CSPA. I will provide more details on this in follow up blogs.