Removing conditions on permanent residence when the U.S. petitioner dies

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

One of the most common questions asked by those who get a green card by a marriage that is less than two years old is, “how and when do I remove the conditions on my green card?” Sometimes the U.S. spouse may be unwilling to file a joint petition and there may be issues of domestic abuse. In a few cases however the U.S. spouse may have died after the beneficiary spouse obtained conditional permanent residence but before the two year anniversary of obtaining conditional permanent residence[1]

For those who receive a green card through a marriage that is less than two years old on the date the green card is received, Section 216 (d) (2) of the Immigration and Nationality Act provides that a conditional permanent resident must file a joint petition to remove conditions on residence I-751 within 90-day period before the second anniversary of receipt of conditional resident status – count back 90 days from the second anniversary of the Permanent Resident Card. Waiting until the last few days to send the I-751 petition with supporting evidence is a bad idea. It should get to the USCIS before the conditional green card expires. It is always a good idea to have proof of delivery.

A son or daughter of the foreign spouse who achieves conditional residence within 90 days of the principal beneficiary (the foreign spouse) may be included on the same I-751 form even though such a combined petition attracts a separate biometric fee for each son or daughter regardless of age. Otherwise the son or daughter must file a separate petition.

The permanent resident status of a conditional permanent resident who fails to file the I-751 on time, will end, unless the person can show good cause that excuses a late filing. Such a person will also begin to accumulate unlawful presence which can lead to 3 or 10 year bars from the United States, if they leave.

Section 216 (c)(1) further has two requirements for removal of the condition – a jointly filed petition and an in person I-751 interview. The service can waive an I-751 interview if it is satisfied of the bona fides of the marriage based on the petition and supporting evidence. But the USCIS sometimes conducts random interviews of joint petitioners or waiver requesters.The service is more likely to waive a joint interview if the case is well-documented but may still need an interview if verification of the information through its fraud unit turns up derogatory information.

For a person who cannot file jointly because of reasons other than death of the petitioning spouse (e.g. I-751 divorce), Section 216 (c) (4) of the immigration and Nationality Act provide for hardship waivers of the joint filing and interview requirements under certain conditions. For such hardship waivers the CPR must submit a letter with the I-751 petition.

But when the petitioning spouse dies during the 2-year conditional period the law does not require a joint petition and interview and no separate I-751 waiver is required other than that requested on form I-751. Therefore the conditional resident petitioner should select (c) in Part 2 of the I-751 form and provide documentary evidence of the death as supporting evidence. The death of the petitioning spouse does not, however relieve the I-751 petitioner from the burden to prove that the marriage which ended in death was in good faith and was not entered into solely for evading the immigration laws.

A conditional permanent resident under section 216(a) of the Immigration and Nationality Act, who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under section 216(c)(1), does not need a separate section 216(c)(4) hardship waiver if the petitioning spouse died during the 2-year conditional period.

Approval

If satisfied that the marriage was not for the purpose of evading the immigration laws, USCIS may approve the petition without an interview. If the USCIS approves the petition it will remove the condition on permanent residence as of the second anniversary of receipt of conditional permanent resident status and issue a new Permanent Resident card through the mail.

RFEs, or requests for more evidence

Where the initial filing is deficient the USCIS may issue a request for more information or evidence or RFE. Failure to respond would lead to a denial due to abandonment.

If the RFE is not properly responded to the USCIS may schedule an interview. If the conditional resident alien fails to appear for an interview about the petition the alien’s permanent residence status will be automatically terminated as of the second anniversary of the date on which the alien obtained permanent residence[2].

Denial

If USCIS intends to deny the petition it will provide a Notice of Intent to Deny stating any reasons for so intending. The petitioner may then send rebuttal evidence which USCIS must consider. If the petition is ultimately denied the alien’s permanent resident status will end as of the date of the written denial.

Review of denial

A person whose i-751 petition was denied can

1. request the USCIS to certify the case to the Administrative Appeals Unit[3]

2. file a motion to reopen the case based on new facts, or a motion to reconsider the case citing valid reasons[4], or

3. seek review of the decision in removal proceedings. In such proceedings ICE must prove by a preponderance of the evidence that the petition was properly terminated [5]. But the petitioner bears the burden of proving eligibility for the petition or waiver of the joint filing requirement. He or she must be prepared to submit evidence of a good faith marriage and the death of the U.S. spouse.

[1] This situation is different from a case where a foreign national obtained permanent residence based on being the widow(er) of a US citizen. In such a case, the widow(er) spouse should not file I-751.

[2] 8 C.F.R. 216.4

[3] 8 C.F.R. 103.4 (a) 4,5

[4] 8 C.F.R. 103.5

[5] 8 C.F.R. 216.3, 1216.3

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An explanation of K1 Fiancé Visa Adjustment of Status and Divorce

A person in K1 status can only adjust based on marriage to the US citizen petitioner, not another marriage

Sometimes a k1 fiancé visa marriage like any other marriage does not always go as plan despite even the best intention. Sometimes there is a breakdown in the marriage, a k1 visa divorce and the foreign national has questions for an immigration lawyer about his/her eligibility for adjustment of status and a green card.

A k1 visa holder can only adjust status on the basis of a marriage to the US citizen petitioner within 90 days of admission to the United States. The Immigration and Marriage Fraud Amendment of 1986, explicitly prohibits a person in K1 status from adjusting on the basis of marriage to someone else.

What the K1 must show if there is a divorce

If the marriage occurred within 90 days, a person in K1 status (and her dependent children admitted in K2 status) can still adjust status to that of an alien lawfully admitted to permanent residence even if the marriage ends in divorce. Matter of Alfred Sesay, 25 I&N Dec. 431 (BIA 2011) & Matter of Le, 25 I&N Dec. 541 (BIA 2011).

A person in K1 status can only adjust based on marriage to the US citizen petitioner, not another marriage

Sometimes a k1 fiancé visa marriage like any other marriage does not always go as plan despite even the best intention. Sometimes there is a breakdown in the marriage, a k1 visa divorce and the foreign national has questions for an immigration lawyer about his/her eligibility for adjustment of status and a green card.

A k1 visa holder can only adjust status on the basis of a marriage to the US citizen petitioner within 90 days of admission to the United States. The Immigration and Marriage Fraud Amendment of 1986, explicitly prohibits a person in K1 status from adjusting on the basis of marriage to someone else.

What the K1 must show if there is a divorce

If the marriage occurred within 90 days, a person in K1 status (and her dependent children admitted in K2 status) can still adjust status to that of an alien lawfully admitted to permanent residence even if the marriage ends in divorce. Matter of Alfred Sesay, 25 I&N Dec. 431 (BIA 2011) & Matter of Le, 25 I&N Dec. 541 (BIA 2011).

The applicant must prove that

  1. the marriage occurred within 90 days of admission and that
  2. The marriage was in good faith when it occurred (affidavits of family and friends, joint assets etc.).

Because adjustment of status is an extraordinary relief, it is granted or denied based upon the equities and adverse factors present in each person’s case. Furthermore the relationship in a K1 visa case is subject to more scrutiny than for marriage immigration cases. Factors surrounding the divorce such as the length of the marriage, conduct after the marriage, whether the couple lived together, the reason for the divorce and a failure to support minor children may be considered in determining whether the marriage was in good faith. But if the marriage is real at the start, it is valid for adjustment of status.

A person in K1 status adjusts status to that of lawful permanent resident on the basis of the earlier approved I-129F petition. The divorce does not revoke this type of petition and the K1 is eligible for adjustment upon admission but conditioned on the marriage to the US citizen. The person on K1 status must still not be otherwise inadmissible. The affidavit of support requirement is met by an approved I-134.

Removing conditions on Permanent Residence

If the K1 was granted adjustment of status based upon a marriage to a US citizen that is less two years old when the adjustment is decided, the person will be granted conditional permanent resident status. If the K1 is no longer married, he or she does not have to wait until within 90 days of the second anniversary of the grant of conditional permanent residence to apply to Remove Conditions on Permanent Residence Based on Marriage; he or she can do so any time after the divorce, i.e. he or she can apply early. He or she must however request a termination of marriage waiver of the joint filing and interview requirement remove conditions on permanent residence based on marriage.

To qualify for a termination of marriage waiver, the conditional resident must prove that

  1. he or she entered into the marriage “in good faith,”
  2. the marriage was legally terminated, and
  3. The conditional resident was “not at fault” in failing to meet the joint-petition requirement.

Conclusion

A K1 (and those admitted on K2) should seek the counsel of an immigration attorney before filling for adjustment of status after the end or breakdown of the marriage that is the basis of K1 status (or K2 status).

A K1 visa holder who got married to a US citizen within 90 days and who is concerned about their status should first realize that there are provisions in the law by which he or she can still adjust status. But he or she should consult an immigration attorney as soon as possible. Sharing your day-to-day experiences with family and trusted friends may also be helpful when you need witnesses to prove that even though the marriage ended it was real.

If you want to know how to get a fiancé visa or have issues with a fiance visa for the United States commonly called the k 1 fiance visa please give my law firm a call at 1-888-747-1108 or contact us through the Contact Us form

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Form I-130 checklist

A Happy Reunited Immigrant Couple

The following is a checklist for an I-130 Petition for Alien Relative for a US citizen or Lawful Permanent Resident sponsoring an immediate relative or family preference alien to get a US green card.

As each case is unique the list is for reference only. The checklist assumes a US citizen wanting to bring her foreign spouse to the United States.

Other family relationships will need different documents to get the I 130 approved.

  1. USCIS current I-130 Form, Petition for Alien Relative.
  2. Copy of the birth certificate for the US Citizen, (front and back), or a copy of ALL pages of the US Citizen’s passport. A copy of a naturalization certificate or certificate of citizenship issued by USCIS or the former Immigration and Naturalization Services are also acceptable evidence of US citizenship.
  3. A copy of the marriage certificate, if applicable. If the ceremony was abroad, a copy of any relevant document to show that the marriage was lawful in the foreign country.
  4. Signed and dated USCIS form G-325A filled out by the US Citizen signed and dated.
  5. One passport size photo (in the prescribed form) of the US Citizen with the full name of the US citizen on the back.
  6. Signed and dated USCIS form G-325A filled out by the foreign spouse.
  7. One passport size photo (in the prescribed form) of the foreign spouse with the full name of the foreign spouse on the back.
  8. Acceptable evidence of a bona fide marriage – documents showing comingling of funds (trust with money), life insurance with either spouse as beneficiary, joint ownership of property, affidavits* from third parties with personal knowledge of the marriage relationship, pictures of the wedding ceremony, marriage certificate, birth of certificate of any children born to the marriage, and shared liability for household expenses.
  9. A copy of an earlier spouse’s death certificate or divorce decree if either spouse was married before.
  10. A check for the required USCIS fee. A check is preferable to money order.
  11. If any document is not in English, the original document must be submitted together with an English translation and certificate of translation by the translator.

*Note: Requirements for the affidavit.

Each affidavit should contain;

  1. the full name and address of the person making the affidavit,
  2. date and place of birth of the person making the affidavit,
  3. his or her relationship to the petitioner of beneficiary, if any,
  4. full details explaining how the person acquired his or her knowledge of your marriage,
  5. details of what he or she knows about the marriage.

Use numbered paragraphs and head the document AFFIDAVIT.

The affidavit must be signed and date before a notary public.

 

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How to pass automatic U.S. citizenship to a step-child with a green card

[T]he Child Citizenship Act of 2000 [the Act] provide automatic citizenship for a child born outside of the United States when all the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen (18) years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent by a lawful admission for permanent residence.

To be eligible for citizenship under the Act a person must prove that all the above three conditions apply to him or her after February 26, 2001.

Eligibility for derivative citizenship from a United States citizen parent

The United States Congress in passing the Child Citizenship Act of 2000 [the Act] provides automatic citizenship for a child born outside of the United States when all the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen (18) years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent by a lawful admission for permanent residence.

To be eligible for citizenship under the Act a person must prove that all the above three conditions apply to him or her after February 26, 2001 (the date the law took effect). At the moment all three conditions are met the child is automatically a U.S. citizen. 

Automatic Citizenship for Green Card Children of U.S. Citizens

Adoption of a step-child before the child turns sixteen (16) years

For the purposes of Act, a child means a biological or adopted child. An adopted child means any person who was fully and finally adopted while under the age of sixteen and who has been in the legal custody, and has lived with adopting parent(s) for at least two years. A step-child admitted for permanent resident cannot derive automatic United States citizenship from a non-adoptive United States citizen step-parent. But if the United States citizen parent fully and finally adopts him or her (a final adoption decree) before the age of 16 years and the child resided with the United States citizen adoptive step-parent for at least two (2) years then the person qualifies for derivative or automatic citizenship.

Certificate of U.S. Citizenship and why a document to prove U.S. citizenship is important

A person need not file any forms to get automatic citizenship. But a person  is strongly encouraged to apply for a certificate of citizenship as the certificate is primary evidence of United States citizen. An alternative way to document United States citizenship is to apply for a U.S. passport.

In addition to the benefits of being able to vote, travel freely and petition for immediate relatives a United States citizen unlike a lawful permanent resident, cannot be lawfully deported, removed or excluded from the United States.

What form do I file?

To get a Certificate of Citizenship for a biological or adopted child the  Form N-600, Application for Certificate of Citizenship with the filing fee for a biological child or the filing fee for an adoptive child (Check filing fee). There is no fee for a Form N-600 filed by a member or veteran of any branch of the United States Armed Forces. The member or veteran must attach proof of service otherwise the USCIS will charge a fee for filing Form N-600.

Applicants filing N-600s who live in Maryland must file the application at the Vermont Service Center.

Vermont Service Center

75 Lower Weldon St.

St. Albans, VT 05479-0001

Otherwise the applicant must file USCIS Field Office with jurisdiction over the applicant’s place of residence.

Parents of children who meet the conditions for automatic acquisition of citizenship under the Child Citizenship Act may also apply for a passport from the Department of State, if they want to document the child’s status as a United States citizen. A passport application is usually a much easier and faster way of documenting citizenship.

Naturalization Process as a practical alternative

If a step-child does not qualify for automatic US Citizenship before 18 years of age he or she will have to satisfy the requirements for United States Citizenship through the Naturalization process using Form N-400.

The requirements for naturalization are:

  1. permanent resident in the US for at least 5 years (continuous residence);
  2. physical presence in the US (he has not been outside the US for more than a specified time);
  3. good moral character ( he has conducted himself in a legal and acceptable way);
  4. an understanding of English and US history and Government;
  5. an understanding of and support for the principles of the US Constitution; and
  6. residence for a specific amount of time in the state or USCIS district where he will file.
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The marriage green card interview – what you need to know

After you have filed your adjustment of status package including the marital petition, form I-130, form I-485 application to adjust status and form I-765 application for employment authorization document, USCIS will send you a biometrics notice to take fingerprints followed by a notice in the mail telling you when and where to attend a green card interview. To be sure you get the interview notice you must change your address with USCIS while your applications are pending by mailing a completed and signed form AR-11 Change of Address form or completing a Change of Address online.

After you have filed your adjustment of status package including the marital petition, form I-130, form I-485 application to adjust status and form I-765 application for employment authorization document, USCIS will send you a biometrics notice to take fingerprints followed by a notice in the mail telling you when and where to attend a green card interview. To be sure you get the interview notice you must change your address with USCIS while your applications are pending by mailing a completed and signed form AR-11 Change of Address form or completing a Change of Address online.

Purpose of the marriage green card interview

The purpose of the interview is to verify your eligibility for adjustment of status, the good faith of your marriage and the financial status of the petitioner. While you should stay calm and stay confident in your marriage you should also prepare for this interview. An immigration officer may deny even people in legitimate marriages who do not convince him or her that their marriage is in good faith and not solely for gaining immigration benefits.

What to do before the interview

You must attend all interviews when you receive a notice. In the very rare event, you cannot attend because of an emergency you must contact the USCIS service office as soon as possible to ask that it re-schedules the interview. Please be aware that requests to re-schedule an interview are often not well received. If you do not know the exact location of the USCIS office and the parking arrangements you should do a test drive to make sure you can get there on time. Collect and organize green card interview documents

Before the interview you must make sure that originals of all documentation submitted with your application including birth certificates, marriage certificates and passports, official travel documents, and Form I-94 (even if they have expired) are well-organized in a file for easy access when requested by the immigration officer. In addition you should include up to date copies of bills and statements that show joint responsibility for living expenses of your home as well as commingling of funds (e.g. joint bank statement). If you have had any child(ren) together you should bring along the birth certificate(s) of the child(ren) and photos of the two of you with the child(ren).

The green card interview - married couple and baby at home

 

In the weeks before the interview: Communicate with your spouse and pay attention to the minor details of your marriage

In addition to organizing the green card interview documents in an orderly file, you should communicate with your spouse about the details or her live (current and past) and the details of yours, when you met and how your relationship developed. You should also pay particular attention to the layout of your house and life together (e.g. who pays what bill). If you are not living together you probably will be found out and you application will most likely be denied. The USCIS is looking for evidence that you are actually living together as husband and wife and trust each other. Remember that it is your responsibility to prove that your marriage is genuine and was not entered into to get around immigration laws.

On the day of the interview

On the day of the interview be sure to carry the interview documents and the USCIS interview notice. Make sure that you and your spouse dress appropriately and arrive for the interview on time. If you do not speak English you should bring along an interpreter with you who is not your spouse. You may also be accompanied by your attorney.

After you have passed security at the USCIS office you will hand in the interview notice at a reception window and wait to be called. When the immigration officer is ready he or she will call you and lead you to his or her office.

The interview

The immigration officer will ask you to raise your right hand and swear (affirm) to tell the truth. If you have a translator, the immigration officer will also swear in him or her to give exact translations. It is important that the translator translate each question and each answer sentence by sentence. The translator must not explain things or answer questions on your behalf.

As you are under oath be sure to tell the truth. Giving false testimony under oath will not just result in denial of your green card but it is also a crime.  You should listen carefully to the officer and only answer the questions that the immigration officer directs to you personally. Do not answer any questions addressed to your spouse without first asking permission from the immigration officer if you may do so. If you do not know the answer to a question, say you do not know.  If you did not hear the question, ask the immigration officer to repeat the question.

  • The immigration officer will ask to see the original documents based on your application. These include your original passport, I-94 and proof that your spouse is a U.S. citizen or LPR.
  • The officer will then test whether your marriage is in good faith by asking you questions that a married couple are expected to answer. Be ready to answer private questions about yourself, your spouse, how you met and your relationship – your living arrangements. Typical questions for green card interviews are about how you met, where you were you living at the time, what were each of you doing when you met, the day-to-day activities of your spouse and the physical arrangement of your house or apartment. You should know the name of spouse’s parents, workplace and supervisor and all the basic things about your spouse. The interviewer wants to find out how comfortable and trusting you are with each other. For a marriage relationship the key words are ‘trust’ and ‘communication with each other.’
  • The immigration officer may then ask about the financial status of your spouse.

The green card interview decision

A lot depends on the particular immigration officer but if the immigration officer decides that you have a bona fide marriage he or she will approve your application. It is likely that he or she will give you a decision on the spot and you will get a green card in the mail in a few weeks. Alternatively he or she may tell you to await a decision by mail.

Stokes Interview

If you fail to convince the immigration officer that your marriage is a bona fide marriage, it is very likely that USCIS will schedule you for a follow-up Stokes interview. The Stokes interview is similar to the first interview except that you and your spouse will be separated and asked more in-depth and personal questions. The immigration officer will  compare your answers to those of your spouse and if there are any discrepancies  you will be given an opportunity to explain the discrepancies.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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K1 Visa Process – For K1 Visa Applicants

Once the USCIS approves the k1 visa petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate.

A k-1 visa is a single entry visa that permits admission of the fiancé (e) of a U.S. citizen, as a non-immigrant for 90 days to marry that U.S. Citizen and apply for adjustment of status (a green card).  The minor unmarried children of the k1 beneficiary who go with or follow to join her are typically granted K2 visa status.

Wedding Bands

 

Approved Petition

Your K-1 process begins when your U.S. Citizen  fiancé(e) files Form I-129F on your behalf with the United States Citizenship and Immigration Service (USCIS) district office responsible for where he or she lives or intends to live (if U.S. citizen is abroad).

Notice of Action

Once your fiancé (e) has received a notice of action you should begin assembling the relevant documents to support your application as some documents may take much time to get.

Documentary Preparation

You should assemble the following documents in support of your application as some may take much time to get.

  1. Passport(s) valid for travel to the United States – for you and any dependent children accompanying or following to join you.
  2. Birth Certificate(s) – Obtain the original, certified copy of the birth record, or secondary evidence for each family member (yourself and all minor unmarried children) even if the children are not immigrating with you.
  3. Evidence of the end of earlier marriages – final divorce decree, annulment or death certificate.
  4. Police Certificates for each applicant aged 16 year and over. Obtain police certificates from the police authority where you live or any place where you have lived for 6 months since you have reached 16 years old.
  5. Proof of relationship to the petitioner – gather your letters, dated photographs showing you together as a couple, affidavits from people with person knowledge of the relationship, e-mails, telephone bills, documentation of wedding plans and invitations. Airline tickets, visa stamps and receipt for the engagement ring may also be used

You should give accompanying certified English translations of all documents not in English, or in the official language of the country in which application for a visa is made. The translation must include a statement signed by the translator that states that the:

(i)                 Translation is correct, and

(ii)               Translator is competent to translate.

Packet 3

Once the USCIS approves the petition it will then send it to the National Visa Center for forwarding to the proper consular post. Once the consulate receives the petition it will issue a letter to you stating that the consulate is ready to begin processing your k 1 visa application.

The Consulate will send you a set of document often called Packet 3 in order it to process your case. Sometimes the Consulate will not include the above forms. Rather it will send a letter with the applicant’s case number and a visa sheet with step by step instructions on how to go ahead. If this is the case the applicant can download the forms from the consulate website and return them to the Consulate. In Packet 3 should find:

  • K1 Visa Checklist Form IV-15
  • Form DS-230 Part I (Biographic Data) – You must complete and return this form immediately for the Consulate to process your case. Each person applying for a visa must complete biographic data Form DS-230- Part I, regardless of age. You may photocopy the form you received insufficient copies for each family member.
  • Form DS-156 in duplicate (non-immigrant visa application). If your unmarried children under 21 are accompanying you, two copies of Each Child must complete Form DS-156. Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-156K in duplicate (Non-immigrant Fiancé (e) Visa Application). Please do not sign this form. You must sign it in front of the consular officer on the day of your formal interview.
  • Form DS-157 in duplicate (Supplemental Non-Immigrant Visa Application) – only required for men aged 16-45
  • Information sheet DS-2000 (Lists evidence which you or your fiancé (e) may present to meet the public charge provision of the law). Your fiancé (e) may file Form I-134 with supporting documentation.
  • Sometimes the Consulate will send information about scheduling a Medical Examination at this time.

Complete and send back the following forms to the Consulate:

  • Form DS-230-I (Part I only) for each person applying for a visa, regardless of age
  • Leave unsigned Forms DS-156
  • Leave unsigned Forms DS-156K
  • Form DS-157 (if applicable)
  • Form IV-15 -if required documents are already prepared.

If not already done so, assemble the relevant documents required in support of your application, and mark the documents off on Form IV-15 as you collect them. Do not send these documents to the Consulate.

Sign and date Form IV-15 and forward to the Consulate.

Packet 4

Upon receipt of the above documents, the Consulate will continue any extra processing and tell you about the scheduling of the medical interview and the appointment for the formal visa interview.

Schedule and have the Medical Examination. Arrange for a medical examination with one of the physicians listed on the attached visa instruction. You are responsible for the cost of the examination. A medical examination is also required for each child who will go with you.

Photographs – take Two (2) 2 x 2 Photographs for each applicant according to the specifications on the visa instruction sheet.

Attend scheduled interview with all your unmarried children under 21. Bring supporting documents such as evidence of your relationship to your U.S. citizen fiancé (e), two photographs for each applicant, birth certificates and final divorce decree if any to the k1 visa interview.

If approved, the Consulate may need you to pick up the passport with the visa from the Consulate later.

Sealed Packet – Do Not Open

Consular Officer will give you your passport(s) containing the K-1 visa (K-2) and a sealed packet containing the civil documents you provided, plus other documents prepared by the U.S. Consulate. It is important that you do not open the sealed packet. Only the DHS immigration official should open this packet when you enter the United States.

K1 Visa Validity

Do not finish arrangements for travel to the United States, dispose of properties, or quit your job until the consulate delivers the passport(s) with the k 1/k2 visas to you. A k1 visa is generally valid for six months. You must travel and apply for admission to the United States within that six month window.

After admission on your k1 visa you have 90 days to get married to your U.S. citizen  fiancé (e) or leave the United States. The DHS will issue an entry document (Form I-94) to you (the  k1 fiancé(e)) valid for 90 days. If you marry within 90 days, you can can apply to adjust your status to that of a lawful permanent resident (green card holder) through the filing of a Form I-485.

Gary Goodin, Immigration Attorney

Copyright © 2011, the Immigration NavigatorTM

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How to Register a Change of Address for Foreign Nationals

With limited exception non-US Citizens including lawful permanent residents (green card holders) must notify the Department of Homeland Security of their change of address within 10 days of moving. This requirement has been more enforced since September 11, 2001. The failure to register a change of address is punishable by a fine, imprisonment or removal from the United States.

USCIS Change of Address

With limited exception non-US Citizens including lawful permanent residents (green card holders) must let the Department of Homeland Security know of their change of address within 10 days of moving. This need has been more enforced since September 11, 2001. The failure to register a change of address is punishable by a fine, imprisonment or removal from the United States.

Change of Address

 

 AR-11/AR-11SR

  • The AR-11 form is a general change of address form that changes your address within the master database of USCIS an agency of the Department of Homeland Security. You can change your address manually using a printed Form AR-11 or you can do it online using the electronic AR-11. However completing this legal requirements and submitting the necessary AR-11 forms does not update an address on any applications or petitions pending before the U.S. Citizenship and Immigration Services (USCIS).
  • Individuals affected by special registration must complete AR-11SR, Alien’s Change of Address Card. Form AR-11 SR can only be mailed and cannot be filed online.

 Application or petition pending before USCIS

If there is an application or petition pending for you before the USCIS, in addition to filing form AR-11, you must let the USCIS know of your change of address according to the instructions contained on the Notice of Action form. You should give them a copy of your receipt notice, your USCIS A#, your old address and your new address.

Appeal Pending before an Immigration Judge (IJ)

In addition to filling Form AR-11 with USCIS, if you have a case pending with before an Immigration Court, you must let the Immigration Court know within 5 working days of your move by completing Form EOIR 33/IJ for the court in your particular state. Form EOIR-33/IJ is available on the Department of Justice website. Giving notice to the court Form EOIR-33/IJ is not the same as giving notice to the Department of Homeland Security, DHS. The foreign nation with a pending case before an immigration court should also give separate notice to the DHS using form AR-11. 

Appeal Pending before the Board of Immigration Appeals (BIA)

If you there is an appeal pending for you with the Board of Immigration Appeals (BIA), in addition to filing Form AR-11 with USCIS, you must let  the BIA know within 5 working days of your move by completing Form EOIR 33/BIA. You cannot let the BIA know of a change of address electronically. Form EOIR 33/BIA is available on the Department of Justice website. Giving notice to the BIA on Form EOIR-33/BIA is not the same as giving notice to the Department of Homeland Security, DHS. The foreign nation with a pending case before the BIA should also give separate notice to the DHS using form AR-11.

 If you have any questions about change of address or a failure to register change of address (an immigration violation) please consult an immigration attorney of your choice.

 

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B2 visa extension of stay

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and accompany her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To maintain your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately. If you fail to apply for an extension before your current authorized stay expires, in the future you could be denied readmission into the United States or a green card.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. The application must be made to the USCIS service center with jurisdiction for your area.

Required documentation

Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and submit USCIS Form I-102 with the appropriate fee together with Form I-539.
Photocopy of your passport showing that it is valid for the period of your intended stay.
Written statement/letter

You must also submit a written statement explaining in detail;

The reason for the extension,
Departure arrangements, and
Any effect the extension would have on your permanent residence and employment in Jamaica.

I came to the US from Jamaica on a visitor visa to spend some time with my daughter and see my grandchildren. Three months ago month my daughter slipped on ice and broke her leg and now she relies on me to move around and go with her when she goes out. The doctor treating my daughter said her leg will take two more months to heal but only one month remains on my I-94 form.

How do I extend my stay in the United States?

To keep your non immigrant status you must file an application for extension of stay before your current period of authorized stay, on your I-94, expires. It is important that you file immediately.

The application process to extend your stay depends on the type of non-immigrant status that you have. In your case because you have B2 non-immigrant status you must use USCIS Form I-539 with the required fee and supporting evidence. You should direct the application to the USCIS service center with jurisdiction for your area.

Required documentation

  1. Original or Photocopy (front and back) of your I-94 Arrival-Departure document. If your I-94 is lost you must file and send USCIS Form I-102 with the proper fee together with Form I-539.
  2. Photocopy of your passport showing that it is valid for the period of your intended stay.

Written statement/letter

You must also send a written statement explaining in detail;

  1. The reason for the extension,
  2. Departure arrangements, and
  3. Any effect the extension would have on your permanent residence and employment in Jamaica.

Supporting evidence

A signed affidavit from your daughter explaining why you are seeking to delay your departure would be persuasive. Your daughter should also get a letter written by a recognized, licensed health care practitioner treating her. The practitioner should write the letter on his or her own professional letterhead stationery and it should state the specific (explained) medical condition that has caused you to seek an extension to spend more time with your daughter and grandchildren.The letter should also specify the dates involved in your daughter’s injury and that the practitioner expects the medical condition to end at a specified time.

You should also send a copy of your return ticket to Jamaica showing the date of your intended departure. You should show that you have funds to support yourself for the period of the intended stay in the U.S. If you have a job in Jamaica you should send a letter from your employer temporarily excusing you from work for the extra time you will spend in the United States.

What if authorized stay has expired?

The USCIS may exercise discretion to excuse your failure to apply before the end of your authorized when;

1.the delay was due to extraordinary circumstances beyond your control

2. the delay is right for the circumstances

3. you have not violated your non-immigrant status in other ways (e.g. unauthorized work)

4. you are still a good faith visitor to the United States, and

5. you are not in deportation or removal.

Processing time and effect of prompt application

The processing time for I-539 applications can take up to 3 -4 months. The time in which your application is pending will continue your authorized stay in the United States. The current filing fee for a Form I-539 application is available here. If USCIS approves your extension of stay application it will do so in six month increments.

Online Resources

B Visa Refusal Rates by Country

 

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US Citizenship for a child with a green card

For a permanent resident child to acquire automatic US Citizenship the law requires that:

1. at least one parent must be a US citizen;

2. the child must be under 18 years old; and

3. the child must reside in the US in the legal and physical custody of a US Citizen Parent (the child must be still living with a US Citizen Parent).

All three citizenship requirements must be met at the same time.

I am a US Citizen. My 16-year-old son came to the US 2 years ago on a green card. He lives with his mother who has a green card. Is my son a US Citizen?

 

US Citizenship for a child with a green card – The Requirements

For a permanent resident child to acquire automatic US Citizenship the law requires that:

1.            at least one parent must be a US citizen;

2.           the child must be under 18 years old; and

3.            the child must live in the US in the legal and physical custody of a US Citizen Parent (the child must be still living with a US Citizen Parent).

All three citizenship requirements must be met at the same time. Pursuant to the Child Citizenship Act of 2000 (effective Feb. 27, 2001) at the moment all these requirements are fulfilled the child is deemed a United States citizen.

Child must live with US Citizen Parent

Your son is not a US citizen at this time because he does not live with you. If you were to have legal custody of your son and can show a court order granting you custody of your son or if you can show factually that you son lives with you, (e.g. your address is contained on his school records, he is claimed as a dependent on your IRS tax returns and receives mail at your home), then all three  citizenship requirements would be met and your son is a US citizen.  Additionally if his mother becomes a US Citizen before he reaches 18 and he is still living with her, he could acquire automatic US citizenship then.

Get Certificate of Citizenship to prove US Citizenship

If your son acquires automatic US Citizenship you should file an up-to date copy of Form N-600 ( available at www.uscis.gov) and include the application fee and supporting documents to get his Certificate of Citizenship. His certificate of Citizenship will then be used to document his US Citizenship and to apply for a US Passport.

Naturalization Process as a practical alternative

If your son does not qualify for automatic US Citizenship before he turns 18 he will have to satisfy the requirements for United States Citizenship through the Naturalization process using Form N-400 ( also available at www.uscis.gov). The requirements for naturalization are:

  1. permanent resident in the US for at least 5 years (continuous residence);
  2. physical presence in the US (he has not been outside the US for more than a specified time);
  3. good moral character ( he has conducted himself in a legal and acceptable way);
  4. an understanding of English and US history and Government;
  5. an understanding of and support for the principles of the US Constitution; and
  6. residence for a specific amount of time in the state or USCIS district where he will file.

US Immigration Attorney Gary Goodin.

Copyright © 2011 Immigration Navigator

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U Visas, Application Information (Part 1 of 2)

Any non-citizen of the United States – Green card holders, those with non-immigrant status, in or out of status, and undocumented persons may apply for a U Visa provided they are victims of qualifying criminal activity and meet other qualifying requirements. The applicant need not be present in the United States at the time he or she applies. But the non-citizen must have suffered substantial physical or mental abuse as a result of qualifying criminal activity.

What is a U Visa?

A U Visa is a non-immigrant visa available to non-citizens who are victims of certain qualifying criminal activity including domestic violence in the United States.They must have been helpful or are likely to be helpful to investigators or prosecutors of criminal activity. It is not enough to be a helpful witness the applicant must be the victim of certain qualifying criminal activity.

What are the benefits of U Visas?

U Visa holders are granted Employment Authorization Documents (EAD) allowing them to work legally in the United States.

For those green card holders who find themselves in removal proceedings, a U visa may allow them to remain in the United States. This potential benefit is a very important one that may be overlooked.

U Visas are normally issued for four years. The spouse (at the time of application) and children of the principal applicant (even unborn at the time of application) may be eligible for derivative U visa status.

Who qualifies for a U visa?

Any non-citizen of the United States – Green card holders, those with non-immigrant status, in or out of status, and undocumented persons may apply for a U Visa provided they are victims of qualifying criminal activity and meet other qualifying requirements. The applicant need not be present in the United States at the time he or she applies. But the non-citizen must have suffered substantial physical or mental abuse as a result of qualifying criminal activity.

What is qualifying criminal activity?

  1. rape;
  2. torture;
  3. trafficking;
  4. incest;
  5. domestic violence;
  6. sexual assault;
  7. abusive sexual contact;
  8. prostitution;
  9. sexual exploitation;

10.  female genital mutilation;

11.  being held hostage;

12.  peonage;

13.  involuntary servitude;

14.  slave trade; kidnapping;

15.  abduction;

16.  unlawful criminal restraint;

17.  false imprisonment;

18.  blackmail;

19.  extortion;

20.  manslaughter;

21.  murder;

22.  felonious assault;

23.  witness tampering;

24.  obstruction of justice;

25.  perjury;

26.  attempt, conspiracy, or solicitation to commit any of the above mentioned crimes, or

27.  any similar criminal activity.

There is no requirement that the criminal activity of which the non-citizen is a victim be the same one as that being investigated by law enforcement. In the midst of an investigation into embezzlement (a non-qualifying criminal activity), for example, the non-citizen witness may become the victim of threats intended to force her not to cooperate with investigators – obstruction of justice (a qualifying criminal activity).

What should I do if I suspect I qualify for a U Visa?

Any non-citizen who suspects that he qualifies for a U visa should consult an Immigration Attorney for legal advice based on his specific circumstances.

A non-citizen  with a pending removal proceeding who suspects that she qualifies for a U visa based on being a victim of qualifying criminal activity should bring this information to her immigration attorney at once.

U Visas, Application Information (Part 2 of 2) will deal with the Certification Requirement and the application procedure for a U-Visa.

Attorney Gary Goodin, for Immigration Navigator ™

Copyright © 2011, the Immigration Navigator

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