Fiance Visa

The fiance visa, also known as the K-1 visa, allows for a U.S. citizen to petition the U.S. government to allow their fiance into the United States for the purpose of marriage. The K-1 visa is not a temporary visa. The immigrant is classified as a non-immigrant for the purpose of a K-1 visa. After the marriage the nonimmigrant and the U.S. citizen spouse can petition the immigration services to adjust the nonimmigrants status to a conditional visa.

A conditional visa is generally good for two years. Towards the end of the two years the U.S. citizen and nonimmigrant spouse must petition the immigration services for a permanent visa. If granted the fiance is a permanent lawful residence and can start accruing time for citizenship.

A few things to know about K-1 visas. The nonimmigrant must still qualify for entry into the United States. This means no communicable diseases, they are not advocating the overthrow of the U.S government, they are not a security risk, etc. The nonimmigrant must show that they meet all the requirement that are necessary for entering the United States, they do not get special preference for being a fiance to a U.S. citizen.

The application for the K-1 visa takes place in the United States, however, the nonimmigrant will apply for the visa at the consulate or embassy in their home country.

A final few notes, the nonimmigrant and the U.S. citizen should get married within the allotted time otherwise the visa will be revoked. Lastly, the marriage should be entered into with good faith, the immigration services frown upon people getting married for the purpose of obtaining a green card or future citizenship. The are legal repercussions for both the nonimmigrant and the U.S. citizen.

Your past

Immigration is different than most other areas of law in that you past is always there, can always be used against you and there is little you can do to hide it. For example, lets assume you have lived in the United States for 20 years, all of them as a lawful permanent resident. In the past five years you have not committed any crimes, been arrested or detained by any police officer, immigration officer or anyone remotely related to law enforcement. This is of course fantastic for you. Generally, when looking at a lawful permanent residences viability for citizenship the immigration services only look at the past five years.

However, the immigration services can look at events that occurred more than 5 years ago in this case. They could look at a domestic abuse charge from 15 years ago. Or they could see that you had a criminal conviction for a small amount of marijuana (under 30 0z.) They could also look at anything you did outside the United States when determining your eligibility. This may seem harsh or unfair and to a certain extent it is. However, immigrating is a privilege, not a right. A privilege can be revoked for poor behavior or for other reasons that the immigration officer determines is appropriate.

Immigration Forms

In immigration law there are a large number of forms. Each government department that you work with generally has its own forms. This means that an unlucky applicant can be dealing with forms from four or five agencies! Generally each form has a set of instructions that are attached to it explaining what needs to be included.

For example the I-485 form is used for application for permanent residence or adjust status and has a filing fee of $1,010.00. The form comes with 11 pages of instructions informing the applicant of what they need to provide and how they need to provide it. The language can be confusing at times, especially if your command of the English language is weak.

The I-829 form is used by individuals who applied for an EB-5 visa and wish to remove the conditional status of their visa. The filing fee for this form is currently $2,930.00. This form comes with 4 pages of instructions.

As one can see the filing of immigration forms can be very expensive and add up quickly.

Visa Bulletin Dec. 2009

In the family section of the bulletin Visas are being issued to 1st preference individuals who applied during 22 Jan 2004, 15 Oct. 2003, 01 August 1992, 01 Nov 1993 and 22 January 2004 for the following areas China, India, Mexico, Philippines, all other areas respectively. 2nd preferences are categorized as follows: 01 November 2005, 01 November 2005, 01 October 2003, 01 November 2005, and 01 November 2005 for the following areas; China, India, Mexico, Philippines, all other areas respectively. 3rd family preferences are as follows: 22 May 2001, 22 May 2001, 22 August 1992, 15 November 1991 and 22 May 2001 for the following areas; China, India, Mexico, Philippines, all other areas respectively. 4th family preferences are as follows 08 September 1999, 08 September 1999, 15 November 1995, 22 March 1987, and 08 September 1999 for the following areas; China, India, Mexico, Philippines, all other areas respectively.

The employment based Visas can be broken down as follows.

1st preference - current for all areas.
2nd preference - current for Mexico, Philippines, all other areas. 01 April 2005 and 22 Jan 2005 for China and India respectively.
3rd preference - 01 June 2002, 01 June 2002, 22 May 2001, 01 June 2002, 01 June 2002 for the following areas; all other areas, China, India, Mexico, Philippines.
4th preference - current for all areas
5th preference - current

The Diversity immigrant visa lottery is broken down as follows for November 2009.
Africa 17,800 (Except for Egypt[9,100], Ethiopia[9,000], and Nigeria[10,400])
Asia 8,250
Europe 12,400
North America 3
Oceania 675
South America and the Caribbean 725

Visa Bullentin Board

The Visa Bulletin Board is a very useful and highly informative website that contains information that will help anyone determine what is going on with their file. The website can be found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. On this page will be links to the current months bulletin and the following months bulletin. Lastly, there is a link to the archived bulletins.

For example, this month, November 2009, can be broken down as follows.

In the family section of the bulletin Visas are being issued to 1st preference individuals who applied during 15 Oct. 2003, 15 Oct. 2003, 08 July 1992, 22 Oct. 1992 and 15 Oct. 2003 for the following areas China, India, Mexico, Philippines, all other areas respectively. 2nd preferences are categorized as follows: 15 Aug. 2005, 15 Aug. 2005, 15 June 2003, 15 Aug. 2005, 15 Aug. 2005 for the following areas; China, India, Mexico, Philippines, all other areas respectively. 3rd family preferences are as follows: 01 Oct. 2001, 01 Oct. 2001, 01 June 1992, 15 May 1998, 01 Oct. 2001 for the following areas; China, India, Mexico, Philippines, all other areas respectively. 4th family preferences are as follows 15 Jun 1999, 15 Jun 1999, 08 November 1995, 15 Jan 1987, 15 Jun 1999 for the following areas; China, India, Mexico, Philippines, all other areas respectively.

The employment based Visas can be broken down as follows.

1st preference - current for all areas.
2nd preference - current for Mexico, Philippines, all other areas. 01 April 2005 and 22 Jan 2005 for China and India respectively.
3rd preference - 01 June 2001, 01 June 2002, 22 Apr. 2001, 01 June 2002, 01 June 2002 for the following areas; all other areas, China, India, Mexico, Philippines.
4th preference - current for all areas
5th preference - unavailable

The Diversity immigrant visa lottery is broken down as follows for November 2009.
Africa 14,000 (Except for Egypt[6,200], Ethiopia[6,700], and Nigeria[8,700])
Asia 7,200
Europe 9,500
North America 2
Oceania 475
South America and the Caribbean 575

The Bulletin has a host of other information on the website and I highly recommend taking a look.

Adjustment of Status

Change of status is a very useful tool in immigration law. When an individual seeks entry into the United States they generally must apply outside the country for a visa and or greencard. If an individual wants to change from non-immigrant status (for example, a student visa) to immigrant status (lawful permanent residence) or another non-immigrant status (for example, work visa) the individual must apply for a change in status. Instead of requiring the individual to go back to their home country and apply from there, the law allows the individual to apply for a change of status within the United States.

When applying for a change in status the alien must supply all the requested documents and pay the required filing fee. The general process can very greatly in length. As mentioned before the greatest benefit of applying for change in status is that it allows the individual to remain in the United States while the application is pending. It is also important to note that the requirements for a change in status are the same requirements that are needed for an individual applying for the first time. Meaning, if in the time you have been in the United States you committed a crime that would prevent entry it may prevent you from getting a change in status.

Refugee

Applying for refugee status is similar in nature to applying for asylum. In general an individual applying to be a refugee must apply when they arrive in the United States (this can be a port of entry, for example in Southern California, San Ysidro or Los Angeles International Airport) or are already in the United States. A refugee must show to the immigration official that they are unable or unwilling to return to the country of origin because of persecution or a credible fear of future persecution.

The applicant must show that they have been or will face persecution based on; 1) political views, 2) race, 3) nationality, 4) religion or 5) membership in a particular group. The applicant must also show that they have not participated in any act of persecution. Refugee status may not be granted to an applicant if they have permanently settled in another country. For example, a person flees Nigeria for France. He lives in France for 7 years, has a home there, works there and received some kind of status in France. This individual would probably not be granted refugee status as they have already permanently settled in another country.

A final note about refugee status is that the applicant can give derivative status to children or spouse.

Asylum

Asylum is a powerful tool that allows an individual(s) who has been prosecuted or has a well founded fear of future prosecution to remain in the United States. Asylum is actually a difficult form of relief to get, but once received it is a very effective and powerful tool. An individual can apply for asylum relief at a port of entry or when they are already within the United States.

Generally, there needs to be a credible threat towards the individual based on one of five enumerated categories; 1) nationality, 2) race, 3) religion, 4) political opinion and 5) membership in a particular group. It is also important to note identity can be based upon a self-perceived identity or on how others view you (this is particularly true in regards to number 5, membership in a particular group).

1) Nationality - this is based upon your country of origin, are you Mexican? Chinese? Taiwanese? Indian? English? etc.

2) Race -are you African? European? Asian? Hispanic? Native American? This group is often confused with nationality but they are two distinct groups.

3) Religion - are you Catholic? Muslim? Orthodox? Hindu? Buddhist? You can be the same overarching religion and still be prosecuted. For example you could be Christian but of a denomination that is the minority in your country and subject to attacks.

4) Political Opinion - are you a libertarian? Socialist? Communist? Nationalist? Liberal? Conservative? Member of the opposition party?

5) Membership in a particular group - this is possibly the largest group and the courts have had difficulty in determining what constitutes a particular group. Some have held that being a child qualifies, but others say that being a child is not a permanent group status as one grows up and is no longer a child. Others have said that being a woman is being part of a particular group, the critics to this say it is too broad. However, a few things have been determined to generally apply; 1) the group must be sufficiently small to be defined, 2) the characteristics of the group are generally permanent, 3) either you or the persecutors identify you within the group, and 4) the government is unable or unwilling to prevent the attacks upon this group.

A few other notes need to be mentioned regarding asylum. The individual seeking asylum must show that the fear is genuine and that a normal person in their position would also be afraid. The individual must show that there is a threat of future harm, for example if the violence against the person happened 20 years ago when there was a civil war going on it would be difficult to show to the court that you have a credible fear of persecution upon returning. There are many other factors that go into determining the viability of a petition for asylum. The above mentioned factors are just some of the largest.

Immigrant Visas

Immigrant Visas cover a large group of people. Under the immigration laws an immigrant is an individual who intends to stay in the United States and give up their residency in a foreign country. This means you intend to stay in the United States indefinitely. While one does not have to give up their nationality of origin, one is not a U.S. citizen. Instead one is a lawful permanent resident. Historically, there was a point in time when the lawful permanent residence card was green, this is where the term green card comes from. Today the card is not green but white like most government issued cards.

When most people think of immigrants they are thinking about individuals who have moved to the United States for a better life and the immigrant does not intend to go back to their home country. Application for lawful permanent residence can be a time consuming process and can take a number of years depending on what classification you fall into.

For example, an applicant can be an immediate family member, an unmarried son or daughter over 21, a married son or daughter, or a brother and or sister. Each of these classifications have a different wait period when applying for the visa. The easiest way of telling where the immigration services are on the wait list for applicants is to visit the Visa Bulletin Board at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html (this address is only accurate at time of posting and may change) and click on current bulletin. This page will display what year and month they are now processing for visas (both immigrant and non-immigrant).

Lawful permanent residence status grants the individual more rights than non-immigrant status but less than citizenship and the lawful permanent resident can still be deported or denied entry at a later time.

Non-immigrat Visas

Under immigration law there are four types of individuals. Citizens, immigrants, non-immigrants and illegal. Citizens have the most amount of rights. A citizen cannot be deported for committing crimes or doing other illegal acts (this applies to individuals who become U.S. citizens as well as those born U.S. citizens).

Immigrants are those individuals who come to the U.S. as lawful permanent residents. These are individuals who come to the United States intending to give up their residence the foreign country.

Non-immigrants are individuals who come to the United States for purposes other than immigration. They may come here for work, research, travel, investment, etc.

Illegal individuals are individuals who are in the U.S. without the permission of the United States government. These individuals have the least amount of rights while present in the United States.

The non-immigrant visa covers a large area of law. Non-immigrants include but are not limited to work visas, investor visas, religious visas, and travel visas. A large majority of individuals want to come to the United States for work. In order to come to the United States on a work visa, the applicant needs to show a number of things to the immigration officials. This depends on the type of visa applied for - priority worker, exceptional ability worker, skilled or non-skilled.
Generally the following need to be shown.
1) the employer is unable to find someone who is a U.S. citizen who is willing, qualified or able to do the job
2) the employer will be paying the prevailing wages or higher to the non-immigrant
Certain classes of individuals have different rules when applying for a non-immigrant visa. For example, professional athletes or teachers.

Naturalization Process

There are a number of steps that are required to become a U.S. citizen. As mentioned before an applicant must be physically present in the United States for a set period of time and have residency in the United States for a certain period of time. Once these requirements are met the individual may apply for citizenship.

In order to apply for citizenship, the prospective individual should get all documents relating to time in the country, employment, time spent outside the country, a copy of their visa and any immigration documents they may posses. It is also important to have a document(s) stating how and when the immigrant entered the United States.

An applicant must show an understanding of the English language, history, principles and form of government of the United States.

English Language - an ability to read, write and speak words in ordinary usage in the English Language. The applicant must be able to read and write simple words that are necessary to take the naturalization test.

History, Principles and Form of Government - the applicant is required to know basic information regarding the history (e.g. formation of the U.S., civil war, involvement in WWII); principles - freedom of the press, religious tolerance, separation of church and state; and form of government - legislative/executive/judicial branch separation and representative democracy.

These requirements may not be applicable to all applicants depending on the circumstances.

The applicant must meet a good moral character requirement, believe and/or promote the principles of the Constitution and have a favorable disposition to the United States. Good moral character is related to moral turpitude (which will be discussed in bars to admission) and can be generally understood as the U.S. wanting to make citizens those who are willing and able to follow the law. The applicant must believe and promote the U.S. government and the principles of the Constitution. Advocating the overthrow of the government or the killing of The House of Representatives will likely prevent the applicant from becoming a U.S. citizen.

All of the above information must be provided to the immigration services when applying for citizenship. Complete honestly is highly recommended when filing with the immigration services. If one of the government organizations handling your case discovers you lied on your application there is a possibility it will become a permanent bar from entry or citizenship!

Assuming all of this goes well, the next step after paying the filing fee is to have an interview with an immigration officer. This is one of the most important steps in the naturalization process. If you pass your interview you will be given the opportunity to take your oath shortly after approval. Upon taking the Oath you become a U.S. citizen.

Naturalization

Naturalization is the process in which a Lawful Permanent Resident (LPR) goes from being an alien to becoming a U.S. citizen. This is an exciting process and requires a great deal of work on the alien's part. Naturalization is the pinnacle of immigration law, there is nothing higher than this. Once you become naturalized you have all the rights and obligations that occur to anyone who was born in the United States. You are able to vote, move freely, cannot be deported, can only voluntarily give up citizenship, etc.

In order to qualify for citizenship two things generally have to occur. First, you have to be in the country legally. This could be through a family petition, work visa or any other method that gets one into this country legally. The second hurdle is that you must be physically present for a set amount of time in the United States and you must have resided in the United States for a set period of time. This may sound like the same thing, but it is not.

Physically present - this is the amount of time an alien has physically spent within the United States. This is the amount of time within the continental U.S. or Hawaii/Alaska. Generally, this amount must equal 30 months. Any time spent out of the country for work, visiting family or vacation does not count towards this 30 month total.

Reside within the United States - this is the amount of time that the alien has resided in the United States. Meaning how long have they rented an apartment/condo or lived in a home in the United States. This time can include time spent outside the United States, but the longer one is outside the United States the more problematic it becomes. There is a presumption that an alien spending more than 6 months outside the United States is giving up their residency. This can be overcome, but it is best to avoid the issue all together.

Here is an example, lets say Nicole (from England) moved to the United States in 2004 on a family visa (her father lives here). For the past five years she has lived with her father or on her own within the United States. However, every year she goes back to see her mom for 4 months of the year, generally around Christmas as she loves the weather back in Englad during this time of year. She also has to travel a decent amount for her work, over the last five years she has traveled outside the United States for 8 months.
Following the requirements of 5 years residence and 3 years physical presence, Nicole is unable to petition for citizenship. She meets the 5 year residency requirement as she has resided within the United States for five years. However she has not been physically present within the United States for 3 years. Her business travel plus visiting her mom totals 28 months, which is over 2 years worth of time outside the United States.

As you can see the requirements for becoming a U.S. citizen can be tricky and is heavily dependent on your time within the United States. The next post will discuss the process in which one becomes a U.S. citizen.

Immigration 101

The point of this blog is to give consumers the basic understanding of immigration law. Immigration law is a complex and ever evolving area of law that can have a huge impact on the individual or the individuals family. If alien does something wrong in the immigration process or violates one of the laws within a state there are serious consequences.

This blog will cover the vast majority of immigration policy and the various administrative hearings that can occur in immigration law. For example, deportation hearings, naturalization proceedings, asylum request, and refugee hearings.