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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A discussion of the frightening Notice to Appear

Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship if an alien is deported.

What is a notice to appear?

The issue of a notice to appear (NTA) is notice to a person that removal proceedings has began against him or her. But removal proceedings begin when the notice to appear is filed in an immigration court (8 C.F.R. 1003.14). A notice to appear form I-862 is a charging document containing allegations against a person in removal or deportation proceedings. It alleges that the person is not a United States citizen, states the grounds under which the person is removable, and the specific law that supports removal.

The notice to appear may also state the date, place and time of the immigration court hearing for the person to appear before an immigration judge. However the notice of hearing may be sent in a separate letter.

It is very important that any person who has received a notice to appear tell the immigration court in writing of any change of address within 5 days of any such change so that they may receive notices from the court. Otherwise an immigration court judge may issue what is known as an in absentia order. If a judge makes an in absentia order against a foreign national it can be used by ICE to rapidly remove the foreign national from the United States without the benefit of a hearing.  Avoid an in absentia order by showing up on time for court and notifying the court of any change of address.

The NTA also tells the foreign national of his or her right to an immigration attorney for representation or to answer any legal questions.

Not everyone who receives an NTA is arrested. But a person who is arrested by immigration must be issued an extra Form I-826 Notice of Rights and Request for Disposition. If you wish to stay in the United States to pursue your rights and apply for relief, you must not allow anyone to talk you into agreeing to the allegations and accepting voluntary departure. Preserve your right to a hearing before an Immigration Judge – tick the option to ask to have a hearing before an immigration judge.

Will I be put on a plane and physically removed from the United States when I appear at the immigration court?

No. This is often cited by some persons for their failure to appear at immigration court. The law does not allow a person coming to immigration court to protect his or her rights to be deported. The deportation process must be completed. Furthermore you have a right to an appeal to the BIA or to federal courts. One of the most important things to realize is that deportation is a process and it typically takes many months depending on how crowded an immigration court docket is. With appeals, the process can sometimes take years.

Do I need a lawyer?

Yes you do. Removal proceedings are one of the most serious consequences that an alien can face. This is especially so for an alien who has lived continuously in the United States for a long time such as more than 10 years. It is also a frightening experience for their United States family who are citizens or permanent residents. United States parents, spouse or children may also suffer extreme and unusual hardship from removal of their alien relatives. A person without an attorney may not have his legal rights protected. You can be assured that the government will have its attorneys working to get you deported. So lawyer up and protect your rights!

A lawyer will also help you to find the type of relief for which you are eligible and gather the right evidence (e.g. affidavits, court records etc.) necessary to support your defense and application for discretionary relief that will allow you to remain in the United States.

Conclusion – Pursue your legal rights before an Immigration Judge

The removal process can take years: removal does not happen overnight. Furthermore there are many defenses and relief from removal (e.g. cancellation of removal, withholding of removal, adjustment of status, asylum, registry etc) that may be available depending on the facts of your case. Seek legal counsel to know and protect your rights.

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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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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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Never mail a single document to USCIS unless you do this

The documents that must be filed with USCIS in an adjustment of status, removal of condition or other green card case are time-sensitive. Your case may be denied if the right document is filed late.

The documents that must be filed with USCIS in an adjustment of status, removal of condition or other green card case are time-sensitive. Your case may be denied if the right document is filed late.

Even when the right documents are filed in a timely manner they could become mishandled and lost in the US Immigration bureaucracy – yes accidents do happen at the worst times.

Leave nothing to chance. Obtain proof of delivery and date for your green card filings by using one of the following mailing methods.

1. USPS Certified Mail with Return Receipt Requested (ask a USPS employee for help if you need it)

2. USPS Express Mail Overnight Guarantee

3. FedEx or UPS

But before you pop the package in the mail to USCIS remember to make photocopies of all documents for your own immigration file.

Attorney Gary D. Goodin, for Immigration Navigator

Copyright © 2011, The Immigration Navigator

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