Immigration fraud by changed activities on a B-2 visa – the 30/60-day rule

When the stated purpose for which a person applies for a non-immigrant US visa or seeks admission at a port of entry is different from his activities within a given time an immigration officer may infer that the person committed fraud or misrepresentation at the time of the visa application or upon seeking entry.

“Say one thing and shortly after do another”

The 30/60-day rule

Misrepresentation by changed activities

When the stated purpose for which a person applies for a non-immigrant US visa or seeks admission at a port of entry is different from his activities within a given time an immigration officer may infer that the person committed fraud or misrepresentation at the time of the visa application or upon seeking entry.

The violation of status within certain periods of time after issuance of the nonimmigrant visa or admission to the US may indicate fraud or misrepresentation.

The special rule under which an immigration officer may infer misrepresentation or fraud in such a case is known as the 30/60 day rule. It is important to note that even though an officer may infer misrepresentation, legal proof of misrepresentation needs more than just a mere inference. It requires that the misrepresentation is proved by both direct and circumstantial evidence.

A person who commits a misrepresentation is inadmissible and may be denied admission (including adjustment of status) under INA 212 (a)(6)(C)(i).

What changed activities?

An immigration officer applies the 30/60 day rule and invoke inadmissibility under INA 212 (a)(6)(C)(i) when for example a B2 non-immigrant states on a visa application/interview or upon entry that his purpose is tourism or to visit relatives and violate his status by:

(1) Actively seeking unauthorized employment and, after, becomes engaged in such employment;

(2) Enrolling in a program of academic study without the benefit of the proper change of status;

(3) Marrying and taking up permanent residence; or

(4) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The 30/60-day rule

0-30 days – Presumption of misrepresentation – if the foreign national violate his Non-Immigrant Visa status within 30 days, the offer may presume a misrepresentation in seeking a visa or entry.

30-60 days – No presumption but the officer must look at the facts for reasonable believe of a misrepresentation. The foreign nation may present evidence to refute misrepresentation.

More than 60 days – If the violation occurs after 60 days the conduct is not a basis to invoke INA 212 (a)(6)(C)(i).

Conclusion

The 30/60- day rule is just one more reason to seek legal advice from an immigration law attorney before taking any action that could have immigration consequences.

If you have any questions please speak to a qualified immigration attorney. Feel free to email me at info@goodinlaw.net. I also urge you to subscribe to this blog or the RSS feed so you can see when new articles are posted.

 

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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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Naturalization denied – break in continuous residence by prolonged absence from the United States

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

Before you make an application for citizenship consider whether prolonged absence from the United States could cause your naturalization petition N-400 to be denied or delayed because of a break in continuous residence.

To become a naturalized United States citizen one of the set of requirements that a lawful permanent resident must meet is continuous residence in the United States.

What are the continuous residence requirements?

The continuous residence requirements for a lawful permanent resident to become a naturalized US citizen are –

  1. At least five (5) years of continuous residence immediately before the date of filing of his petition for naturalization (three (3) years in the case of qualified spouses of U.S. citizens), including physical presence in the United States for at least one half of the five-year (or three (3) years for qualified spouse of U.S. citizens).
  2. At least three months of continuous residence in the state or district in which she will file her naturalization petition, immediately before filing, including physical presence for at least one half of the period of continuous residence in the state or district of filing, and
  3.  Continuous residence within the United States from the date of the petition up to the time of admission as a citizen [1].

A person is not yet eligible for naturalization if there is a break or disruption in continuity of residence [2].

The purpose of the residency requirement

Since as far back as 1790 the US immigration laws have made residence within the United States after entry a requirement for naturalization as an American citizen.

The Second Circuit Court of Appeals has described the continuous residency requirement as a proving ground on which the alien’s good moral character and attachment to the principles of the U.S. constitution are tested [3].

The purpose of the continuous residence requirements has been to set up a period of probation during which applicants can learn the language; familiarize themselves with U.S. customs and institutions; shed foreign attachments; acquire attachment to the principles of the U.S Constitution and government; show their ability to conduct themselves as law-abiding citizens; and generally prove their fitness to be accepted as U.S. citizens [4].

Residence defined

The INA defines residence as “the place of general abode” and “the place of general abode” of a person as his or her principal, actual dwelling place in fact, without regard to intent. So therefore residence is where a person actually lives whether it was his intention to make it his residence or not [5]. For this reason (and for the issue of abandonment, not discussed here), a lawful permanent resident should seek legal advice before going abroad for anything more than a brief and casual visit.

Breaking continuous residence

Under current immigration regulations [6] absence for a continuous period of between six months and a year during the period for which continuous residence is required create a presumption of a break or disruption in the continuous residence. The naturalization petitioner has the burden to present evidence (discussed below) to rebut the presumption. If the petitioner presents satisfactory evidence he or she has continuous residence despite absence of 6 months to one year from the United States. With limited exceptions involving work overseas for the United States government and US government contractors, if the petitioner for naturalization has been continuously absent from the United States in excess of one year during the period for which continuous residence is required, then there is a break in continuous residence as a matter of law.

Overcoming presumption of a break in continuous residence for applicant’s absence for between 6 months and one year.

To rebut a presumption of a break in continuous residence because of a prolonged absence from the United States for between 6 months and one year, a petitioner can submit documentary evidence showing that during the absence:

(A) She did not stop her employment in the United States;

(B) Her immediate family remained in the United States;

(C) She retained full access to his or her United States home; or

(D) She did not obtain employment while abroad.

________________________________________

[1] See, Abdul-Khalek v. Jenifer, 890 F. Supp. 666 (E.D. Mich. 1995)

[2] Id.

[3] United States v. Camean, 174 F.2d 151, 153 (2d Cir. 1949)

[4] United States v. Camean, 174 F.2d 151 (2d Cir. 1949); United States v. Mulvey, 232 F. 513 (2d Cir. 1916); In re Vasicek, 271 F. 326, 329 (E.D. Mo. 1921); In re Di Giovine, 242 F. 741 (W.D.N.Y. 1917) .

[5] 8 USCS § 1101(a) (33).

[6] 8 CFR 316.5(c).

 

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Often asked questions about affidavit of support form I-864

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Do not let confusion over the affidavit of support requirement delay you bringing your spouse or family members to the United States or cause the consular officer to deny your family members their immigrant visas. Here are some often asked questions and their answers.

Q. What is an affidavit?

A. An affidavit is a statement that is either sworn to before someone authorized to administer oaths such as a notary public (e.g. an affidavit of marriage) or signed under penalty of perjury (e.g. an affidavit of support form I-864.)

Q. What is an affidavit of support for an immigrant?

A. It is a legally enforceable promise by the sponsor to show that the intended immigrant has adequate means of financial support and is unlikely to become a financial burden to the United States (A Public Charge). The sponsor also promises to reimburse any federal or state agency that provide certain means tested benefits to the sponsored immigrant and to inform the United States Citizenship and Immigration Services (USCIS) of any change of address (Form I-865) within 30 days of the change while the agreement is still in force.

The law requires an affidavit of support in most family based immigrant and some employment based immigrant cases. The petitioner must either submit an affidavit of support on Form I-864 or Form I-864EZ. Certain classes of immigrants who are exempt from the affidavit of support requirement (e.g. self-petitioning battered spouse or child of US citizen) must still submit Form I-864W, Intending Immigrant’s Affidavit of Support Exemption along with their application for an immigrant visa or for adjustment of status.

Even if an applicant has a valid affidavit of support, consular officers may still consider the applicant’s age, financial status, health, education and skills, and family status in determining whether the applicant is likely to become a public charge.

Q. When must the affidavit of support be filed?

A.  It is filed as part of the Adjustment of Status Application package. But if processing at a US consulate the National Visa Center (NVC) will send an Affidavit of Support processing fee invoice and payment instructions to the petitioner. After the petitioner has paid the fee and obtained a receipt he or she will get the proper instructions about completing the Affidavit of Support forms. He or she must be sure to complete the form properly and send tax returns and other supporting documents such as a job letter on company letterhead stating his or her income to the NVC with the applicants name and NVC case number at the upper right hand corner of each document.

Q. Who is eligible to be a sponsor?

A. A sponsor on an affidavit of support must satisfy all the following three requirements;

  1. A U.S. citizen, national or LPR;
  2. At least 18 years old; and
  3. Domiciled within the United States or in any U.S. territory or possession.

Q. Does the sponsor have to be employed?

A. No. The sponsor has other options besides income to show adequate financial support for the sponsored immigrant if his income falls short of the minimum requirement for his family size. He may show adequate assets, usually between 3 and 5 times the shortfall. The sponsor can also count the assets and income of household members (Form I-864A) to prove adequate support for the intended immigrants or seek a joint sponsor with the required minimum income as a last resort. If the intended immigrant has significant assets (e.g. real estate, stock, bonds) which are available, then this may also be counted.  Therefore a retired or temporarily unemployed person can still be a sponsor though current use of welfare benefits is a negative factor.

Q. If the household members join their income and assets, because the petitioner does not have enough income, must the household members file a change of address form with USCIS?

A. No. Only sponsors must inform the USCIS of a change of address. Household members who execute Forms I-864A, Contract Between Sponsor and Household Member have no obligation to inform USCIS when they change address.

Q. How does income does my sponsor have to show and how does she prove income?

A. The key is using the federal poverty income guidelines Form I-864P to find the minimum income requirement for the family size unit of the sponsor. The sponsor must be able to show the minimum income for his or her family unit size. While a bigger family unit size increases the minimum income requirement it does allow the sponsor to include more household member’s income.

The minimum income requirement is 125 percent of the federal poverty guideline for a given family unit size. But if, the petitioner is actively serving in the US armed forces, the minimum income requirement is 100 percent. The sponsor should verify his or her income with certified copies of federal tax returns for three earlier years. Additionally notarized copies of employment letters should also be used.

Q. How do I determine family unit size for my case?

A. The family unit size includes the following persons even if they do not live at the same residence (count each person once[1])

  1. The sponsor
  2. The sponsor’s spouse
  3. The sponsor’s unmarried children under 21 unless they are emancipated
  4. Any person  claimed by the sponsor as a dependent for tax purposes on the most recent tax return
  5. The number of aliens the sponsor has sponsored under past Forms I-864 for whom the sponsor’s support obligation has not terminated
  6. Any of the sponsor’s spouse, child, adult son or daughter, parent or sibling residing with the sponsor if including their income would be helpful, and
  7. The sponsored immigrant and all accompanying derivative family members (spouse or dependent children of sponsored immigrant) under current Form I-864, even if such persons do not or will not have the same principal residence as the sponsor.

Q. Must the co-sponsor be a relative?

A. No. But a relative should be used where possible.

Q. Can the income of joint sponsors be joined together to satisfy the minimum income requirement?
A. No. Each joint sponsor must satisfy the income requirement on her own or combine assets/income with the intended immigrant or with members of her household.
I hope this helps you to comply with the affidavit of support form requirement.

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Immigration Navigator RSS feed now available!

Thanks to those subscribers who were kind enough to let us know about the problem, the RSS feed for Immigration Navigator is now fixed!

To keep up-to-date with immigration and visa issues, visitors are invited to subscribe to the RSS feed. Please also remember our contact page for US immigration and visa questions.

Thanks to those subscribers who were kind enough to let us know about the problem, the RSS feed for Immigration Navigator is now fixed!

To keep up-to-date with immigration and visa issues, visitors are invited to subscribe to the RSS feed. Please also remember our contact page for US immigration and visa questions.

Continue to tell us how we are doing.

With Thanks,

Gary D. Goodin, Esq.

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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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Protected: Renunciation of US Citizenship

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What is an H1B visa?

H-1B status is a temporary work status for foreign workers performing services in a specialty occupation requiring the specialty worker to possess a US bachelor’s degree or its equivalence.
The H-1B application process begins when a US employer files a Labor Condition Application or LCA Form ETA – 9035 with the Department of Labor. Among other things, the LCA must list the location(s) where the work will actually be performed and the wage rate.

H-1B status is a temporary work status for foreign workers performing services in a specialty occupation or in a Department of Defense (DOD) administered cooperative research and development project or co-production project, or for fashion models with national or international acclaim. Most H-1B petitions however are for specialty occupations requiring the specialty worker to possess a US bachelor’s degree or its equivalence. 

H1B Biotechnology worker
H1B worker

If you are a foreign professional (e.g. computer systems analysts and programmers, physicians, professors, engineers, and accountants), an international student nearing graduation, or a US employer with a special need for foreign workers this H-1B information may be of particular interest to you.

The H-1B application process begins when a US employer files a Labor Condition Application or LCA  Form ETA – 9035 with the Department of Labor. Among other things, the LCA must list the location(s) where the work will actually be performed and the wage rate. The prospective US employer should print and sign a hardcopy of the electronically filed and certified LCA and maintain a signed hardcopy of this LCA in a public access file.

The petitioner should then file a completed and signed H1-B petition on USCIS Form I-129 on behalf of the alien beneficiary (the prospective specialty worker). The petitioner should also complete and sign H-Classification Supplement to I-129 and H-1B Data Collection and Filing Fee Exempt Supplement and include supporting documentation. These supporting documents should include a copy of the beneficiary’s final transcripts, or documents showing the beneficiary’s education and experience, detailed job description, the US employer’s company articles, financial statements and marketing brochures. All these documents together with a signed hardcopy of the LCA should be sent to the correct USCIS Service Center in support of the I-129. A duplicate copy of the H-1B petition (identified as “COPY”) should also be mailed if the non-immigrant is seeking or may seek consular processing outside the United States.

A properly executed form G-28 must also be submitted if the prospective employer is being represented by an attorney. The petition must be accompanied by the correct filing fees to retain the original filing date. A completed and signed USCIS Form I-907 and the correct filing fee should also be included if the prospective employer is requesting premium processing to expedite the USCIS adjudication of the H1B petition.

The approved H-1B petition will then be sent to the Kentucky Consular Section for Consular for processing of an H-1B visa abroad at a U.S. consulate where the H-1B beneficiary will be interviewed.

An alien may be admitted to the United States in H-1B status for a maximum period of six years; however, each H-1B petition may only be approved for a maximum period of three years. However, an H-1B holder performing DOD work may be admitted for a maximum of ten years with each such H-1B petition being approved for a maximum of five years.

 At the end of the 6 year period the alien must either change to a different status, if eligible or depart the United States. A former H-1B holder who departs the United States for 1 year may be eligible for re-admission for a maximum period of 6 years.

As there are very detailed laws and regulations related to the petition and application for H-1B status, interested persons are strongly advised to seek the services of a U.S. licensed attorney specializing in Immigration & Nationality law for professional advice in specific situations.

Attorney Gary Goodin, for Immigration Navigator ™

Copyright © 2011, the Immigration Navigator

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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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