A recent podcast by our west coast colleague attorney John Khosravi brought up a very insightful point that is worth repeating. As we previously discussed, the new public charge rules go into effect October 15 of this year. The rule is extraordinarily complex and well over several hundred pages. Much of the media attention has focused on the expansion of what types of programs constitute public benefits. There is understandable fear that aspiring immigrants may be deterred from applying for benefits which they desperately need out of fear that their immigration cases will be jeopardized. What has not been emphasized, however, is perhaps even more significant than what additional programs will be considered: namely, the number of factors that an officer may consider when determining whether an individual may be a public charge, and hence, ineligible for permanent residence. These include:
USCIS recently released new guidance pertaining to I-130 marriage cases that directly impacts spousal petitions involving minors. Under the new guidelines, the agency will begin scheduling in-person interviews for I-130 petitions involving minor spouses. Ordinarily, the parties to an I-130 are normally interviewed during the adjustment of status stage or, if the case is abroad, the foreign national is questioned regarding the marital relationship at the visa interview. Now, however, USCIS will begin conducting interviews at an earlier stage, that is, at the time the I-130 is adjudicated. At the interview, the petitioner or parties will be expected to furnish evidence that the marital relationship is genuine. Such evidence is often referred to as the "bona fides" of the marriage and can include such things as joint financial accounts, leases, insurance policies, and any other relevant evidence tending to prove that the marriage was entered into in good faith and out of genuine motivations. USCIS will also be determining whether the marriage was legally performed and whether the marriage is not outlawed in the jurisdiction where the couple resides or intends to reside, even if the marriage was valid in the jurisdiction where it was originally performed. So, for example, one state or country may permit marriages by minors under certain circumstances while others don't. If the couple will live in a state that would not recognize the marriage if performed in that state, that might pose a substantive obstacle in getting the I-130 approved.
Individuals who acquire lawful permanent residence through marriage are often concerned about their foreign-born children residing abroad. One common misconception is that someone who has a conditional green card must first obtain a permanent green card before filing for one's children. This is not necessarily true, and in some cases, waiting too long to file can considerably affect how long it takes for a child to immigrate here. While a conditional permanent resident is obligated to file the I-751 to remove the conditions on his/her green card, he/she is nevertheless a permanent resident and accorded all the rights and privileges of a green card holder, including but not limited to working, traveling, and filing for one's unmarried children. Depending on how old the child is, he/she will fall under preference category F2A (for unmarried children under 21) or F2B (unmarried children 21 or older). Currently, F2A cases are taking approximately 2 years to process, while F2B cases are taking approximately seven to eight years, which is appreciably longer. If a child is nearing twenty, a permanent resident may want to strongly consider filing the I-130 immediately in the hopes of getting the child here before he/she reaches 21.
Late last week, news broke that USCIS plans on closing its international field office division by the end of the year. The rationale behind this decision is purportedly to reallocate resources and manpower to handle the growing surge of asylum applications, but many are understandably skeptical that this is another effort to fortify a virtual invisible wall. In practical terms, the phasing out of these offices will likely increase processing delays and contribute to a growing backlog that has already pushed cases significantly back.
Permanent residents who file for their unmarried sons or daughters over the age of 21 are often dismayed and disappointed to learn-only after it is too late--that their petitions may be jeopardized by the marriage of their children. How and why does this happen? The problems lies in the way in which our immigration system is structured. As it currently stands, there are only four family based preference categories. For permanent residents, there are only two categories available for family members: F2A and F2B. When a green card holder files for a spouse or unmarried child under the age of 21, that relative will fall under F2A. If the lawful permanent resident files for an unmarried child 21 or older, the individual will be classified under F2B. Between the two categories, F2A is generally much quicker, as spouses and minor children are involved. F2B cases can drag for years. The problem is that there is no category for married children of lawful permanent residents. As a result, if the F2B beneficiary of an I-130 petition marries while the petition is pending (or for that matter, even after visa approval but before immigrating to the United States), the petition will, for all practical purposes, be invalidated. In other words, the individual will no longer be eligible for the visa as an unmarried child, since he or she is now married. It does not matter that the beneficiary married after the I-130 was filed; after the I-130 was approved; or even after the visa is granted. If the person is married before entrance into the United States, he or she technically does qualify for the visa.
The Board of Immigration Appeals ("BIA") issued an important precedential decision last month regarding sibling DNA test results. The decision is Matter of RUZKU, 26 I & N Dec. 731 (BIA 2016). The holding basically establishes that direct sibling DNA test results that indicate a 99.5 percent probability that the parties are related as siblings should be taken into consideration by USCIS and accorded proper weight. In the case at hand, USCIS declined, in accordance with its official policy, to give any evidential weight to a DNA test result submitted by the petitioner in support of his I-130 application for his sibling, even though the results indicated a 99.8114 percent probability that the parties were full biological siblings. The government memorandum which USCIS relied upon to support its decision states that USCIS may not afford any weight to sibling-to-sibling DNA test results and will only evaluate parent-child DNA results, which presumably are more reliable.
Under certain circumstances, a bona fide marriage with a United States Citizen or Lawful Permanent Resident not entered into for immigration purposes may form the basis of an application for permanent residence. However, far too often, foreign nationals are under the impression that marriages-even if they are legitimate--are a panacea to their status problems. The reality, unfortunately, is much more complicated than that. There are many obscure restrictions codified in our immigration laws intended to detect and deter fraud that often complicate marriage based cases. Most people are aware that if the marriage is less than two years old, the alien will receive a conditional green card ("CR-1"). Ninety days before the second anniversary of the grant of permanent residence, the couple must ordinarily file to remove the conditions on permanent residence. One less known provision regarding marriage based cases is INA 204(a)(2)(i), regarding petitions for second marriages.
If immigration were not confusing enough, there are some visa categories that cover different classifications. The two that immediately come to mind are the H visa and the K visa. For example, there is an H-1B for professional workers, which is different than an H2B, which is for seasonal workers. For today's discussion, I want to focus on some key differences between the K-1 and K-3 visa because while they both involve loved ones, they are two very different visas. It is important to understand the terminology, as well as the benefits and limitations of each visa, because not everyone can file for a K-1, and not everyone can file for a K-3.
The I-130 is called the Petition for Alien Relative and approval is normally required for any family based green card or immigrant visa application. If an I-130 is denied, any subsequent application that depends upon it, such as an I-485 adjustment of status application, is doomed. As many articles out there already cover, you may have the option to appeal the denial of I-130 or even possibly file a motion to reopen or reconsider. However, it may be more instructive to understand top reasons why USCIS denies family based petitions so that you don't make the same mistake. Note that this discussion pertains to family I-130 petitions filed for parents, children, and siblings. I will discuss marriage based petition denials in a subsequent entry.