Articles Posted in I-130

In this video attorney Jacob Sapochnick discusses some new developments regarding the government’s planned implementation of a final rule that would have made certain individuals inadmissible to the United States on public charge grounds.

On October 11, 2019, judges in three separate cases before U.S. District Courts for the Southern District of New York (PDF)Northern District of California (PDF), and Eastern District of Washington (PDF) granted court orders to stop the government from implementing and enforcing the terms of the public charge rule proposed by the Trump administration. As a result, the final rule has been postponed pending litigation until the courts have made a decision on the legality of the rule on the merits. These court orders have been placed nationwide and prevent USCIS from implementing the rule anywhere in the United States.

What would the public charge rule have done?

The public charge rule was set to be enforced on October 15, 2019. The rule would have expanded the list of public benefits that make a foreign national ineligible to obtain permanent residence and/or an immigrant or nonimmigrant visa to enter the United States.

A person would have been considered a “public charge” under the rule, if they received one or more designated public benefits for more than 12 months in the aggregate, within any 36-month period.

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In this video attorney Jacob Sapochnick discusses the implications of accepting unlawful employment while in the United States, how it can impact your future green card or immigration status in the United States.

First, what is unlawful employment?

Unlawful employment occurs when a foreign national accepts employment outside of their authorization. For example, if you do not have a work visa with authorizes you to engage in lawful employment, a green card, or employment authorization card, and you accept employment regardless, then you have accepted unlawful employment. In some cases, even unpaid employment may be considered unlawful employment.

Unlawful employment is employment that may have occurred before your last entry (maybe years ago), employment that you have taken before you have filed for adjustment of status, etc.

Unauthorized employment may impact a person’s ability to legalize their status in the United States. However, there are certain instances in which accepting unauthorized employment will not have a negative effect on a person’s future ability to obtain permanent residence.

Exceptions

One of these exceptions is what we call the “immediate relative exception.”

If you are an immediate relative of a U.S. citizen, and are filing for adjustment of status based on your family relationship as:

  • The spouse of a U.S. citizen;
  • The unmarried child under 21 years of age of a U.S. citizen; or
  • The parent of a U.S. citizen (if the U.S. citizen is 21 years of age or older).

Your acceptance of unauthorized employment will not impact your ability to obtain permanent residence because that unauthorized employment will be considered “waived” at the interview.

Recipients of VAWA (Violence Against Women Act) filing for adjustment of status also qualify for this exception and will not be adversely affected by acceptance of unauthorized employment.

In addition, certain physicians and their families who are immigrating to the United States may also be exempt, as well as certain U.S. service members who are in the military and are in the process of adjusting their status.

For more information click on the video above.

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In this video attorney Jacob Sapochnick will discuss a very important topic: can a step-parent, who is a U.S. Citizen, petition for a step-child to immigrate to the United States?

USCIS takes the position that as long as the marriage between the U.S. Citizen and foreign national takes place before the child turns 18, that child can immigrate to the United States on the same I-130 petition.

This situation arises where the U.S. Citizen’s foreign spouse has children from a previous marriage, and the U.S. Citizen is interested in petitioning for the child to immigrate along with the foreign national spouse.

If the child is older than 18 at the time of the marriage between the U.S. Citizen and foreign national takes place, the child must find an alternative means of obtaining permanent residence.

The location of the marriage does not matter, rather the child’s age at the time of the marriage is what is key here.

For more information about this topic please click here.

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In this video attorney Jacob Sapochnick talks about your options, as a U.S. Citizen, if you have just discovered that your foreign spouse used you to obtain a green card.

When such a case arises, and we are representing the U.S. Citizen who has just discovered that they have been defrauded, we advise our client to seek outside counsel. We cannot advise our client on how to proceed if we have filed the case because providing such advise creates a conflict of interest.

If our office did not file the green card petition, then it is possible for us to assess the U.S. Citizens options by having a consultation and discussing the situation at hand.

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Overview: 

Have you ever wondered what is bona fide marriage and what is the evidence required to establish bona fide marriage? In this video attorney Jacob Sapochnick will explain how you can go about proving bona fide marriage.

When applying for adjustment of status based on marriage, the foreign national must prove to USCIS that they have what is called a “bona fide” marriage, meaning that the couple has entered the marriage for love, and not solely to obtain an immigration benefit. USCIS requires the applicant to meet their burden of proof of bona fide marriage to prevent green card fraud.

There is certain documentation that must be provided to prove that the couple has a bona fide marriage. This documentation can be provided with the filing itself, or at the time of the green card interview.

What type of documents are required to show bona fide marriage?

Evidence of Cohabitation: to show bona fide marriage, the couple must show that they have been living together throughout the marriage. The types of documents that can establish cohabitation are lease agreements, property deeds, and secondarily utility bills (electricity bill, water bill etc.).

Evidence of Commingled Finances: in addition, the couple must provide evidence of commingled finances such as joint bank account statements showing activity on the account such as payments for rent, food, groceries, and regular household items.

Joint Ownership of Assets: if the couple has any assets held in both of their names such as real property, an automobile, ownership of stocks or bonds etc. they may provide evidence of such assets.

Other Joint Documents: The couple may also provide life insurance policy documents, health or auto insurance, or joint memberships in a club such as gym membership.

Photographs: The couple must present photographs of themselves with friends and family members throughout their relationship to show that they have a legitimate marriage.

Trips: the couple may choose to show evidence of trips or other activities they have undertaken throughout the marriage as proof of bona fide marriage.

If you have any questions please contact our office. Please also remember to follow us on FacebookYoutubeTwitter, and Instagram.

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In this video attorney Jacob Sapochnick discusses how to respond to a Notice of Intent to Deny (NOID) after a marriage fraud interview also known as the STOKES interview.

Overview:

As part of the I-130/485 application process to obtain a green card based on marriage, the couple must attend an in-person interview before USCIS to prove that they have a bona fide marriage.

During this interview the immigration officer must determine whether the marriage is in fact legitimate or whether the foreign national entered the marriage solely to obtain an immigration benefit.

If all goes well, the couple is approved following the initial interview.

If the immigration officer suspects fraud or is not convinced that the marriage is legitimate, the couple will be scheduled for a second interview or “STOKES” interview.

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In this video attorney Jacob Sapochnick explains the differences between the K-1 fiancé visa and a marriage visa.

What is the K-1 Fiancé Visa?

The K-1 visa is available to foreign nationals who are engaged to U.S. Citizens only. K-1 visas are also reserved for foreign fiancées, who do not have any other means of coming to the United States. A K-1 visa holder must marry the U.S. Citizen fiancé/fiancée within ninety days of entry to the United States or else the alien must leave the country.

If the foreign fiancé does not intend to marry the U.S. Citizen within ninety days of arriving to the United States, then the K-1 fiancé visa is not a good option.

The K-1 fiancé visa is a good option for couples who want to spend time together in the United States before getting married.

The fiancé visa process is typically much faster than the marriage visa process.

Marriage Visa

Spouses Overseas: U.S. Citizens and Legal Permanent Residents may file Form I-130 on behalf of a foreign spouse residing abroad, so that the foreign spouse can apply for a marriage visa through the U.S. Consulate in their home country. Spouses of Legal Permanent Residents must wait for a visa to become available to them, before proceeding with the marriage visa application process.

Spouses within the U.S.: If the foreign spouse of a U.S. Citizen is residing inside of the United States on a valid visa type, then the foreign spouse can file Form I-130 and Form I-485 to adjust their status permanent residence at the same time.

The marriage visa application process is generally longer than the fiancé visa process, while adjustment of status for spouses residing within the United States is shorter than the fiancé visa process (typically 4-7 months processing time).

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In this video, attorney Jacob Sapochnick discusses how you can obtain permanent residence if your U.S. Citizen spouse has passed away, and you are still in the process of applying for permanent residence.

Overview:

What happens if you and your spouse have filed the I-130/485, and your US Citizen spouse tragically passes away during the process?

SCENARIO ONE: If the couple married but did not have the opportunity to file the I-130/485 applications with USCIS, before the death of the US Citizen spouse, the surviving spouse can still obtain permanent residence by filing form I-360 as a widow(er), provided the couple had a bona fide marriage. Once the I-360 petition is approved by USCIS, the surviving spouse can proceed on their own in filing the I-485 application for permanent residence.

SCENARIO TWO: In cases where the I-130/485 applications have already been filed with USCIS, but the couple did not have the opportunity to go to their I-485 interview before the passing of the US Citizen, USCIS may still adjudicate the foreign national’s application for permanent residence, even if the US Citizen spouse is now deceased. At the interview, the surviving spouse must provide the US Citizen’s death certificate, as well as evidence of bona fide marriage.

If you have any questions regarding this process, please email jacob@h1b.biz, or contact our office.

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In this video attorney Jacob Sapochnick discusses how to complete Form I-130 Petition for Alien Relative. Please keep in mind that this video is not intended to be legal advice. The information provided is for educational purposes only and does not substitute the legal advice of your attorney. If you are filing the I-130 Petition for Alien Relative on your own, you must read the form instructions very carefully or seek the assistance of an attorney who will complete the forms according to your specific situation.

If you are filing for adjustment of status, or for an immigrant visa, based on a qualifying family relationship, your petitioner must sign and complete Form I-130 Petition for Alien Relative to establish that a valid family relationship exists. If the beneficiary of the petition is the spouse of the petitioner, then the beneficiary must complete Form I-130A Supplemental Information for Spouse Beneficiary.

Filing a Form I-130 is only the first step in helping a relative immigrate to the United States. Certain eligible family members must wait until there is a visa number available before they can apply to become a lawful permanent resident.

Who May File Form I-130

U.S. Citizens and lawful permanent residents may file the I-130 on behalf of qualifying relatives.

For more information about adjustment of status please click here.

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In this video attorney Jacob Sapochnick discusses how to complete Form I-485 for adjustment of status to permanent resident. Please keep in mind that this video is not intended to be legal advice. The information provided is for educational purposes only and does not substitute the legal advice of an attorney. If you are filing the I-485 application on your own, you must read the form instructions very carefully or seek the assistance of an attorney who will complete the forms according to your specific situation.

You must make sure that all of the information on the I-485 application is correct, because the I-485 form is the form that USCIS is going to use to prepare your green card. Form I-485 must be signed and completed by the beneficiary (the person that is applying for the green card), not the petitioner of the I-130.

What is Adjustment of Status?

Adjustment of Status is the process by which an eligible foreign national already in the United States can apply for permanent residence without having to return to their home country to obtain a visa through consular processing. Adjustment of status refers to the change of the foreign national’s legal status from a non-immigrant (temporary) category to an immigrant (permanent) category.

Generally, to be eligible to file for adjustment of status within the United States, a foreign national must have an immigrant petition filed on their behalf either by a US citizen (USC) or Legal Permanent Resident (LPR) qualifying relative (USCIS Form I-130 Petition for Alien Relative) or employer (USCIS Form I-140 Immigrant Petition for Alien Worker). Exceptions exist for self-petitioning Amerasian, Widow(ers), special immigrant categories such as refugees or asylees, and humanitarian visas. In addition, the beneficiary of the green card application must have been inspected, admitted, or paroled into the United States to qualify for adjustment of status within the United States, except in cases of 245i.

For more information about adjustment of status please click here.

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