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.
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.
In this video attorney Jacob Sapochnick discusses what happens at an employment-based green card interview. Employment-based green card interviews became mandatory pursuant to USCIS policy in March of 2017.
It was not until the President issued an executive order on March 6, 2017 that USCIS began to require in person interviews for employment-based green card applicants.
The President’s executive order broke the agency’s long-standing policy of waiving in-person interviews for employment-based green card applicants, who were previously considered low risk applicants.
In keeping with the executive order, all applicants who have filed for adjustment of status, on or after March 6, 2017, on the basis of employment, must attend an in-person interview with USCIS. Derivative family members must also be present at the interview.
Employment-based adjustment of status is where an individual qualifies to apply for permanent residence based on an underlying employment visa category such as EB-2 or where the foreign national has an approved National Interest Waiver.
What happens during these interviews?
At the interview, the immigration officer will review the foreign national’s job description as it appears on the original Form I-140, to determine whether the applicant is still doing the same work or whether there has been a significant change in employment.
If the applicant is no longer working in the same or a similar position, the applicant must explain why.
Immigration officers are also closely scrutinizing federal income tax returns filed by applicants to determine whether the foreign national has engaged in unauthorized employment. Engaging in unauthorized employment will likely result in a denial of the adjustment of status application.
National Interest Waiver
In the case of adjustment of status based on an approved national interest waiver, the immigration officer will want to know whether the applicant has done what they promised to do in keeping with the original Form I-140 to ensure that the applicant has not engaged in fraud to obtain immigration benefits.
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In this video attorney Jacob Sapochnick discusses immigration options for foreign nurses.
At the moment it is quite difficult for foreign nurses to immigrate to the United States because of how strict immigration officials are being in adjudicating these petitions.
While there are rigorous requirements that must be proven to immigrate to the United States, the demand for nurses in the United States continues to grow. Therefore, there is a still a need for foreign nurses to come and work in the United States.
The good news is that the immigration backlog for nurses is decreasing. The time that a nurse must wait to work in the United States depends on the nurse’s country of nationality.
So, how can a nurse get a visa to come to the United States?
There are generally two ways that a foreign nurse can come and work in the United States.
Green Card: A nurse may come to work in the United States if their employer files a petition on their behalf specifically on Form I-140 Immigration Petition for Alien Worker. Once the I-140 is approved, the nurse may apply for an immigrant visa under the EB-3 category for nurses once the I-140 priority date becomes current on the visa bulletin. This process culminates in an interview at the U.S. Consulate for the immigrant visa.
H-1B:A foreign nurse who has a Master’s or Bachelor’s degree, plus five years working experience, and is seeking to work in a specialty occupation (for example as managers or nurse practitioners) may apply for the H-1B work visa.
TN Visa: A foreign nurse from Canada or Mexico may apply for a TN visa.
Most nurses come to the United States by being petitioned for a green card directly by their employer.
What is required for this option?
The foreign nurse must have a visa screen which is an evaluation of educational equivalency by the CGFNS (Commission on Graduates of Foreign Nursing Schools)
The foreign nurse must establish English proficiency by passing either the Test of English as a Foreign Language (TOEFL) www.toefl.com or International English Language Testing System (IELTS, academic version) www.ielts.org.
The foreign nurse must also pass the state licensing exam and the NCLEX (National Council Licensure Examination)
The foreign nurse must have a job offer and
The employer must be willing to sponsor the foreign nurse for permanent residency
The employer must be willing to pay the prevailing wage of the location where the foreign nurse will be working
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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.
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).
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.
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 email@example.com, or contact our office.
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.
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In this live stream, attorneys Jacob Sapochnick and Marie Puertollano discuss recent topics in immigration including the new USCIS policy giving immigration officers ample discretion to deny an application or petition filed with USCIS without first issuing a RFE or NOID, suspension of premium processing, fraudulent H-1B schemes, and more.
Beginning September 11, if you do not provide sufficient evidence to establish that you are eligible for the immigration benefit you are requesting, USCIS may exercise their discretion and deny your petition without first issuing a request for evidence or RFE. This new policy applies to all applications and petitions filed after September 11th, with the exception of DACA renewal applications. The decision to deny your application or petition without issuing a RFE or NOID will ultimately be up to the discretion of the officer reviewing your petition. An officer may in his discretion continue to issue a RFE or NOID according to his best judgement.
If you are filing for a change of status or extension of your status, we recommend that you file early, so that you are not out of status in the case that USCIS denies your request for an immigration benefit. This will give you the opportunity to either re-file or to consider changing your status to another visa type. In addition, if you have the ability to apply for premium processing service, you should take advantage of that service.
Suspension of Premium Processing
At the moment premium processing services have been temporary suspended for cap-subject petitions until February 19, 2019, with the exception of cap-exempt petitions filed exclusively at the California Service Center, because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap exempt institution.
In this video, we discuss the difference between adjustment of status and consular processing.
What is adjustment of status?
Adjustment of Status is the process by which a foreign national applies for permanent residence, essentially their green card, within the United States. In order to apply for adjustment of status within the United States, the foreign national must have entered the United States lawfully (typically on a U.S. visa) and be married to a U.S. Citizen. The foreign national must not have entered the marriage within the first 90 days of entry to the United States. Doing so creates a presumption of fraud and the couple will be denied at the green card interview.
Example: The foreign national entered the U.S. on a student visa, and later met a U.S. Citizen. The couple then became engaged, and married in the U.S.
The process begins with the filing of the following forms typically at the same time:
I-130 petition for alien relative (signed by the U.S. citizen)
I-485 application for adjustment of status aka the green card application (signed by the foreign national)
I-765 application for employment authorization (signed by the foreign national)
I-131 application for travel document (signed by the foreign national)
G-325A biographical information (signed by both the U.S. Citizen spouse and foreign national)
I-864 Affidavit of Support (signed by the U.S. Citizen)
The process ends with a green card interview before a USCIS immigration officer at a field office near the couple’s place of residence. The purpose of the interview is to determine whether the couple has a bona fide marriage. Both the petitioner and foreign national must attend this interview.