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.
What’s the difference between someone who is undocumented in the United States and someone who is here illegally?
What does it mean to be “undocumented”?
When someone is in the United States “undocumented,” that means that the person entered the United States without inspection (without the proper documentation), and as a result are currently living in the United States without the proper documentation, hence the term “undocumented.”
What does it mean to be in the U.S. “illegally”?
On the other hand, someone who came to the United States on a valid visa (such as a student visa, tourist visa, etc.) and then lost their status, either because they did not renew their visa, or their visa expired, or for some other reason, are in the United States “illegally.” These individuals were legally in the United States at some point but are now in the United States “illegally” because they are now out of status. This is also referred to as a visa overstay. That is because the individual has now stayed in the United States past the time authorized by their initial visa.
In both cases, the individual is in the United States without authorization because they do not have the proper visa.
Path to Residency
A person who is “undocumented” meaning that they entered the United States without proper inspection, cannot adjust their status to permanent residency so easily even where married to a U.S. Citizen. Undocumented parties married to U.S. Citizens must file a waiver of inadmissibility and in some cases will have to leave the United States before applying for residency.
By contrast, a person who entered the United States with proper inspection, but who is now in the United States illegally because of an overstay, can apply for permanent residency more easily, where married to a U.S. Citizen. These individuals do not have to leave the United States before applying for residency.
The key difference between the two is in whether the person entered the country with inspection. If you entered without inspection, you would be undocumented. If you entered with inspection, but have overstayed your visa, you are in the country illegally.
If you have questions about relating to your status and legalization, please contact us.
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.
You are married to a US Citizen and you filed your petition for a green card, but now you are going through a divorce, can you keep your green card?
Divorce Prior to Green Card
If you have filed your application for a green card, but have not yet attended your green card interview, and you or your spouse has since filed for divorce, it is going to be nearly impossible for your green card application to continue without the U.S. Citizen spouse.
If the divorce is filed or is happening before the adjudication of your green card, there are very few options for the foreign spouse to obtain a green card.
As long as the foreign spouse is in legal status, they may be able to remain in the United States by changing their status to a nonimmigrant visa category. In this case, the foreign spouse may only remain in the U.S. temporarily, until the duration of the visa is up.
The San Diego Immigration Law Offices of Jacob J. Sapochnick welcomes you. Our immigration practice is committed exclusively to the areas of immigration and citizenship law. We have big firm expertise in these specialties, but strive to deliver personalized client services at an economical cost.
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In this video attorney Jacob Sapochnick discusses the current processing time for the I-751 Petition to Remove Conditions on Permanent Residence.
If you were granted conditional residence (2-year green card) based on your marriage to a U.S. citizen (USC) or legal permanent resident (LPR), you must file USCIS Form I-751 Petition to Remove Conditions on Residence proving that you entered your marriage in good faith, and not to gain an immigration benefit. Filing the I-751 petition allows you to receive your 10-year permanent resident card
The most common question we receive regarding the I-751 application is how long the application takes to process.
The processing time depends on various different factors such as when you filed your petition, where you reside, the service center processing your application, and the volume of applications currently in the pipeline.
You can view the current processing times based on the service center handling your petition, by visiting the USCIS website.
The current processing times for each service center are as follows:
The California Service Center is currently taking between 14.5 to 19 months to process these petitions.
The Nebraska Service Center is currently taking between 15.5 to 23 months to process these petitions.
The Texas Service Center is currently taking between 16 and 19 months to process these petitions
The Vermont Service Center is currently taking between 15 and 19 months to process these petitions.
If you have received a request for evidence, then you may experience delays if you wait a long time to respond. If you have changed your address please ensure that you file a change of address on the USCIS website as soon as possible.
Can I lose my green card if my citizenship application is denied after the interview?
A person typically acquires a green card based on employment or an underlying family petition. As part of the process of becoming a permanent resident, an applicant must pass a background check, and meet all other eligibility requirements to become a permanent resident.
During the citizenship application process, USCIS is given another opportunity to further vet the applicant and ensure that the applicant meets all of the criteria required to become a United States Citizen, as well as ensuring that the applicant has not committed fraud or any other immigration violations to obtain an immigration benefit.
If during your citizenship application process, USCIS finds that there was an inaccuracy or inconsistency during the process of obtaining your green card, it is possible that such a finding might adversely affect the outcome of your citizenship application, depending on the type of defect.
USCIS may or may not decide to investigate further depending on the inaccuracy or inconsistency involved. If USCIS decides to investigate any inaccuracies or inconsistencies involved in your prior green card case, they may decide to not only deny your citizenship application, but also to rescind your permanent resident card. Typically, this occurs where there is an instance of fraud or an individual gained a green card through misrepresentation.
An applicant who is denied for other reasons, such as failing the Civics or English examination, failing to prove good moral character, or failing to meet the continuous residence requirement, is typically not at risk of losing their green card.
If you have any concerns that are specific to your case, please feel free to contact our office to schedule a consultation.
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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