How to Serve as a Financial Sponsor on the Form I-864 Affidavit of Support for a Green Card Case

October 29th, 2017

A sponsor on any family-based immigrant visa petition for legal permanent residency (also known as the “green card”) must file a contract with the government known as the Form I-864 ‘Affidavit of Support’. This affidavit demonstrates that the beneficiary foreign national has adequate means of financial support and is not likely to become a public charge. The sponsor must meet tax filing and income or asset requirements and agree to potentially significant financial obligations under the contract.

The sponsor must have filed his or her Federal tax returns for the last three years, if required to do so. The total income noted on the last three filed tax returns must be noted on the Form I-864, but only the most recent Federal tax return (or IRS transcript), including all schedules and Forms W-2 and 1099s, must be filed.

By filing the Form I-864 Affidavit of Support, the financial sponsor must support the sponsored immigrant, if he or she is unable to support him or herself, at 125 percent of the federal poverty level for the sponsor’s household size based on the federal poverty guideline. The sponsor, or his or her household, must have a household income equal to at least 125 percent of the poverty level for his or her household size. One hundred and twenty five percent of the poverty level for a family of two in the contiguous United States is $20,300 (and an additional $5,225 for each additional household member). Income is determined by the sponsor’s total income noted on the most recently filed tax returns as well as by his or her current income. Also, if the sponsor is self-employed, his or her income may not be sufficient if not properly documented. If the income does not meet this standard then the assets or an affidavit of support from a joint sponsor can be used. Also, in certain instances the income or the assets of the sponsored immigrant may be used.

Only assets that can be converted into case within one year without considerable hardship or financial loss to the owner may be included. They must amount to five times the difference between the required income and the household income of the sponsor. In the case of sponsorship of a spouse, the assets must be three times the difference.

The joint sponsor must be at least 18-years-old who is a US citizen or legal permanent resident and who earns sufficient income for his or her household size or has sufficient assets. Household size is a specific legal term and is based on the number of certain family members living with the sponsor, dependents on his or her tax returns and the number of other immigrants sponsored pursuant to an I-864 that came into effect within ten years of the approval of the current immigrant visa or application to adjust status to legal permanent residency (I-485).

The sponsor’s obligation under the I-864 Affidavit of Support continues until the sponsored immigrant becomes a US citizen, can be credited with 40 qualifying quarters of work, departs the US permanently, or dies. Divorce does not terminate my obligation. In addition, the sponsor’s estate remains liable for repayment of benefits that arose before the support obligation ended.

Also, under the contractual obligations of the Form I-864 Affidavit of Support, the sponsor must support the sponsored immigrant financially and reimburse any government agency or private entity that provides the sponsored immigrant with Federal, State, or local means-tested public benefits. Agencies that provide means-tested benefits to intending immigrants will be able to sue the sponsor if he or she does not provide reimbursement for such benefits upon request. The sponsored immigrant may sue the sponsor to enforce the Affidavit of Support.

If any of the information on the Affidavit of Support is known by the sponsor to be false, he or she may be liable for criminal prosecution. The Government may pursue verification of any information provided on the form, including employment, income or assets, with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration.

The sponsor is required to report every change of my address to the US Citizenship and Immigration Service (“US CIS”) and the State(s) in which the sponsored immigrant resides, by filing Form I-865, Sponsor’s Notice of Change of Address, with the USCIS within 30 days of any change of address. Failure to give notice of any change of address may result in fines.

USCIS Adjustment of Status Visa Bulletin Filing Dates for October 2017

September 20th, 2017

USCIS has announced that for October 2017, the priority dates from the Filing chart must be used for family-based preference filings and the priority dates from the Final Action Dates chart must be used for employment-based preference filings.

USCIS to Expand In-Person Interviews for Certain Residency Applicants

August 30th, 2017

As of October 1, 2017, USCIS will begin expanding in-person interviews for certain applicants for legal permanent residency. In particular, as of October 1st, USCIS will start requiring interviews for (1) Form I-485 applicants for adjustment of status to legal permanent residency whose I-485s are based on employment and (2) refugees and asylees (Form I-730) who are in the US following to join a principal asylee or refugee.

USCIS states that this policy will strengthen the integrity of our immigration system and provide it with the opportunity to verify information. However, these interviews are not only unnecessary but will only exacerbate the already tremendous backlog for interviews for family-based applicants for adjustment and for those applying to naturalize. It can take approximately six to eight months for an I-485 applicant based on marriage to obtain an interview. The extent to which these new misguided policy could slow this process down further is very troubling. Also, for employment-based I-485 applicants, who currently are not interviewed unless there is an important issue that must be verified, this expansion will not assist in properly adjudicating whether the applicant is working at the sponsoring company, the key issue for such a case. If USCIS is serious about fraud issues, it should conduct ad hoc investigations to ensure such employment.

August 2017 Visa Bulletin: EB2 Worldwide Category Retrogresses

July 12th, 2017

The U.S. Department of State (DOS) released the August 2017 Visa Bulletin today showing a retrogression of the employment-based second preference EB2 worldwide category to April 1, 2015. It notes that it won’t become current again until October 1, 2017. The EB2 category for India is at July 22, 2008, and for China April 22, 2013. The EB1 category remains backlogged for India and China with a cutoff date of January 1, 2012, but the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2012, and at July 15, 2006, for India.

Applicants for adjustment of status who have a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

Maintaining Legal Permanent Residency

June 26th, 2017

Legal permanent residency can be abandoned if the foreign applicant is outside the US for long periods of time and/or does not treat the US as his or her primary home. If the legal permanent resident (LPR) leaves the country for more than six months there is a presumption that such status has been abandoned and the LPR must prove otherwise to US government authorities, including showing that the LPR has maintained the US as his or her primary home. Once the LPR has been outside the U.S. for more than one year, then the LPR will not be able to reenter with his or her alien registration card and the government will deem such status abandoned.

However, there are exceptions to this rule. First, if the LPR applies for a reentry permit before he or she leaves the U.S., then the LPR may reenter the U.S. with this document for up to two years from the date of his or her departure from the U.S. Second, if the LPR seeks readmission into the U.S. more than one year after his or her departure and did not apply for the reentry permit, then the LPR may be able to obtain a special immigrant visa at a U.S. consulate abroad. If the LPR will not return to the U.S. within two years, then the LPR will also need to obtain a special immigrant visa at a U.S. consulate abroad. When making an application for a special immigrant visa, the LPR must establish that he or she has not abandoned legal permanent residence and has still treated the US as his or her primary home while outside the U.S. Evidence of maintaining legal permanent residence in the U.S. includes filing resident tax returns; maintaining a valid driver’s license; holding credit cards and bank account/s and owning property.

The reentry permit does not guarantee the LPR’s readmission into the US. It merely certifies that the U.S. government has accepted the LPR’s trip as temporary, i.e., that the LPR maintained legal permanent residency despite a lengthy absence. As a result, if the LPR has a reentry permit, then the LPR cannot be denied readmission into the U.S. solely on the duration of his or her absence. However, the LPR may still be deemed inadmissible under some other ground of exclusion (e.g. commission of certain crimes). If the LPR fails to pay US residence income taxes (on his or her worldwide income, not just U.S. source income) during his or her period of absence, this demonstrates an intent contrary to the required intent of a legal permanent resident and the LPR may be considered to have abandoned legal permanent residency despite the reentry permit.

Also, if the LPR commits activity that deems him or her inadmissible to the US, then the LPR may be stopped at the border when trying to reenter the US. Grounds of inadmissibility include the commission of certain crimes. However, the LPR may be eligible for a waiver of the ground of inadmissibility. Also, after acquiring legal permanent residency, the LPR is still subject to removal (deportation) for certain activity, such as drug-related offenses, aggravated felonies, crimes of violence, etc. The LPR may be eligible for relief from removal should he or she be placed in removal proceedings. However, once the LPR becomes a U.S. citizen, then he or she will not be inadmissible at the border or removable for certain activity.

The LPR may apply for naturalization three months prior to five years after the approval date of your legal permanent residency. If the LPR obtained legal permanent residency based on marriage and continues to live with the spouse sponsor, then the LPR may apply three months prior to the three year anniversary. Applying for a reentry permit does not negate the effect of a lengthy absence on the LPR’s ability to meet the naturalization requirements. Two of the naturalization requirements are the maintenance of legal permanent residency during the requisite three or five-year period (maintaining the US as his or her primary home) and physical presence for at least half of the three or five-year period (with certain exceptions). An absence of fewer than six months does not break an LPR’s continuity of residence; an absence of six months or more but less than one year breaks the continuity of residence unless the LPR can provide a reasonable explanation for his or her absence (an overseas assignment is most uniformly accepted); and an absence of one year or more automatically breaks the continuity of legal permanent residence (with certain exceptions for employment abroad).

Finally, the foreign national should keep track of all trips made outside the US until becoming a US citizen. The naturalization application requires that the applicant note each and every trip made since becoming a legal permanent resident with the date the applicant left and the date the applicant returned and all of the countries visited.

USCIS Announces Adjustment of Status Filing Dates for July 2017

June 23rd, 2017

US Citizenship and Immigration Services (USCIS) has announced the filing dates for applicants for adjustment of status to legal permanent residency for July 2017. Both applicants for family and employment-based cases must use the “Final Action Dates” chart in the Department of State Visa Bulletin for July 2017 (https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html).

Green Card Processing: Adjustment of Status Versus Consular Processing

June 13th, 2017

Recently, a client who is a US citizen contacted me about sponsoring her elderly parents for legal permanent residency and the optimum way to proceed. US citizens may sponsor their spouse, children, parents and siblings for legal permanent residency.

Foreign nationals can obtain legal permanent residency either by adjusting (changing) their status in the US or by going to a US Consulate abroad and getting the immigrant visa. For adjustment, the I-130 and the I-485 are the primary forms. If the adjustment application is based on marriage, then the foreign national and his or her spouse will be interviewed to determine if it is a real marriage and the foreign national is eligible (for parents of US citizens this interview is usually waived). The foreign national will definitely be scheduled for biometrics around one month after filing. Also, with the adjustment application the foreign national can file for the advance parole travel permission, which allows him or her to travel abroad while the I-485 is pending. If the foreign national departs the US before obtaining the advance parole document, then he or she will abandon the I-485 and need to consular process abroad for the immigrant visa (although there are exceptions for H-1Bs and L1s).

The one very important caveat is that foreign nationals cannot enter the US as a nonimmigrant with the intent to file to adjust their status in the US (with the exception of dual intent nonimmigrants such as H-1Bs and L-1s). They can enter as nonimmigrants, such as B-2 visitors or F-1 students, and then have an I-130 filed for them to obtain their immigrant visas abroad. Also, if the petitioner files only the I-130 immigrant visa petition for consular processing abroad, then the foreign national may not be able to enter as a nonimmigrant while the case is pending (except for those with dual intent visas like the H-1B or L-1).

If the foreign national does enter as a nonimmigrant (without a dual intent visa) with the “illegal” intent to obtain legal permanent residency in the US through adjustment of status, then the US government could make a fraud finding against this individual and bar the individual from entering the US. There is a waiver available for a foreign national who can show extreme hardship to a US citizen or legal permanent resident spouse or parent, but these cases are very challenging.

US Department of State Visa Bulletin for July 2017

June 10th, 2017

The US Department of State (DOS) has issued its Visa Bulletin for July 2017 with the current priority dates for immigrant visas. A foreign national may be issued an immigrant visa, or have his or her I-485 application to adjust status to legal permanent residency approved, only when the US DOS’s priority date on the applicable chart is past the priority date assigned to the I-140 immigrant visa petition. A foreign national may retain his or her priority date from an earlier approved I-140 in many situations.

For the EB-2 worldwide category, the priority date is still current (C). For the EB-2 category for those from India the DOS is issuing immigrant visas for those with priority dates up to July 22, 2008. For the EB-2 category for China it is March 22, 2013. For the EB-3 worldwide category, the DOS is up to the priority date of June 8, 2017, which is pretty much current. For the EB-3 category for India it is February 15, 2006, and for those chargeable to China (born in China) it is January 1, 2012.

It is important to note that there are two charts – Chart A for final action and Chart B for filing the application. USCIS is following the dates on Chart A for filing the I-485.

EB1 for China and India Retrogresses in June 2017 until October 2017

May 11th, 2017

The US Department of State’s June 2017 Visa Bulletin shows EB-1 final action dates retrogressing for China and India until this October. However, the filing dates remain current. Hopefully, USCIS will continue to allow those from India and China to file I-485 applications to file to adjust status pursuant to an EB-1A extraordinary ability or EB-1B outstanding research petition. This will provide them with status in the US, although not an approval.

How to Obtain the Green Card in the US Based on Marriage

April 16th, 2017

Those wishing to obtain legal permanent residency, or “green card” status, based on marriage should obtain legal counsel before filing for such status. Too many foreigners have made the mistake of filing the wrong type of case and subjecting themselves to a possible fraud finding, which can lead to a permanent bar to coming to or remaining in the US. There are two ways of obtaining legal permanent residency: (1) by filing to adjust status to legal permanent residency for those already in the US; and (2) to obtain an immigrant visa from a US consulate abroad after being interviewed by a consular official in a foreign country.

Most foreigners prefer to change their status in the US if they are already here, since the processing time to obtain an immigrant visa abroad can be long and the process of going through the US consulate abroad is burdensome. Most importantly, for those who are spouses of US citizens, the wait could be up to one year on average, and for those whose spouses are only legal permanent residents, the wait could be months, or even years longer, depending on immigrant visa availability. Also, if one must consular process abroad, he or she may be unable to enter the US in the interim on another type of nonimmigrant visa.

In order to adjust to change status to legal permanent residency in the US (Form I-485), the foreign applicant must show that he or she entered the US lawfully (inspected by a US border official) and that he or she did not enter the US with the intent to remain and obtain legal permanent residency if he or she did not enter using a nonimmigrant that allows for immigrant intent (such as the H-1B or L-1A or L-1B). In other words, a foreigner may not enter the US as a B-2 visitor or visa waiver entrant with the intent to remain in the US and get his or her green card status. This bar only applies if the US border official asked the foreigner his or her intent or purpose for staying in the US and the person lied.

If at the adjustment of status interview the US adjudications officer determines that the person entered with immigrant intent and misrepresented his or her purpose to the US border official, then a fraud finding will be made. If the applicant cannot obtain a fraud waiver, showing extreme hardship to a spouse or parent who is a legal permanent resident or US citizen, then his or her case will be denied and she will be barred from the US. The applicant can file the hardship waiver again, and that is recommended where circumstances change showing the extreme hardship. USCIS’ policy is to deny such hardship waivers where the qualifying relative would suffer the usual emotional hardship from the separation. It is critical to obtain as much evidence as possible documenting how such emotional hardship would be unusual and extreme, including an evaluation from a psychologist or psychiatrist and evidence of a prior history of depression, suicide or anxiety and any medical treatment followed. The applicant can also provide other evidence of hardship, such as economic hardship were the US spouse compelled to live abroad and lose the source of his or her income.