Seguritan US Immigration Articles

Visa for Homebuyers Proposed

A new bill seeks to give a temporary “residential visa” to foreign nationals who invest at least $500,000 in residential real estate in the United States.

This visa is part of a package of immigration measures co-authored by Sen. Charles Schumer (D-New York) and Sen. Mike Lee (R-Utah). Last week they introduced the Visa Improvements to Stimulate International Tourism to the United States of America (VISIT USA) Act. It aims to promote foreign travel to the United States and alleviate the housing crisis by increasing the demand for residential houses.

The bill gives a three-year residential visa to foreign nationals who make a $500,000 cash investment in a single-family house, or spend $250,000 on a primary residence and invest the remaining $250,000 on properties to be rented out.

The purchase must be made in cash and no mortgage or home equity loan would be allowed. The buyer must also live in the home for at least 180 days each year. A foreigner may bring a spouse and children under 18 years old, but they would not be eligible for Medicaid, Medicare or Social Security benefits. They also lose eligibility for the visa if the property is sold.

The residential visa is not a work permit and the foreigners would need to apply for a work visa in order to work in the U.S. It also does not lead to citizenship.

The bill’s other proposals are likewise intended to bring in travelers more easily. For instance, Chinese nationals are encouraged to travel more frequently to the U.S. by giving them 5-year multiple entry visas. Currently, they are required to apply for a U.S. visa annually.

Retiring Canadians also stand to benefit from the bill’s “Canadian retiree visa” which would allow them to have a visa valid for 240 days and renewable every 3 years if they meet certain requirements. Under current rules, Canadian citizens may only stay a maximum of 180 days.

Premium processing, which for an extra charge provides faster processing of visa applications, would also be extended to B-1/B2 visa applications. The bill also proposes lower visa application fees for travel during off-peak seasons to encourage travel during these times.

The proposal was welcomed by many groups in the real estate and travel industries. If passed into law, the proposal is expected to boost residential home sales in many states including California, Florida, Texas and New York. Even tycoon Warren Buffett is said to have expressed support for an immigration policy that encourages rich immigrants to buy homes in the U.S.

A visa option which is similarly designed to attract investments but which has been in place for quite some time is the EB-5 category. Under the regular EB-5 program, one may get a green card through an investment of $1 million (or $500,000 in rural or high unemployment areas) in a new enterprise that directly creates 10 jobs. Under the EB-5 pilot program, the $500,000 investment must be made in a designated Regional Center which creates at least 10 jobs even indirectly.

Unlike the proposed residential visa, the EB-5 category grants conditional permanent resident status to the investor and his dependents. The condition may be removed by filing a petition to remove the condition within 90 days before the second anniversary of his admission as conditional resident. He will have to demonstrate that the requirements of the investor program have been satisfied.

The investor in a designated Regional Center is not required to manage his investment on a daily basis as he can just be a limited partner.

What to Do When a Family Petition is Denied

The I-130 petition is the first step in immigrating to the United States through a family member. It is filed by U.S. citizens or lawful permanent residents to establish relationship with an alien relative.

U.S. citizens may file an I-130 for a spouse, unmarried child under 21 years of age, unmarried son or daughter 21 years or older, married son or daughter of any age, brother or sister, or a parent. Lawful permanent residents may file for their spouses and unmarried children only.

When an I-130 is denied, it does not necessarily mean that the process is over. In some cases, the reasons for denial are impossible to overcome. But many times the denial is just a hurdle that only tests one’s determination. When faced with a denial there are several options to choose from as circumstances may allow.

The denial may be appealed to the Board of Immigration Appeals (BIA). The petitioner files the appeal on Form EOIR-29 with the USCIS service center or district office that denied the petition. The petitioner must file it within 30 days of the date of the decision and pay the filing fee of $110. On the other hand, the petitioner may also opt to simply re-file the petition.

The reasons given by the USCIS for denial is probably the first thing to consider when deciding whether to appeal. For instance, the I-130 must have been approvable when filed in order to make appealing the denial worthwhile. For example, the spouses in a marriage-based petition must be legally married at the time of filing. If the husband’s divorce was not yet final at the time he remarried, the petition could not be approved.

On the other hand, if the reason for denial was a finding of fraud in a marriage-based petition, the petitioner should definitely consider contesting the denial because a fraud finding bars the approval of any other immigrant petition for the beneficiary.

Also, if the I-130 was denied due to failure to submit required documentation, presenting the documentation before the BIA will not necessarily result in a reversal. For example, a beneficiary child’s birth certificate will most likely not be considered “new evidence” by the BIA because it was already available or it “could have been discovered or presented” when the petition was filed. In this scenario, the petitioner may be better off re-filing the petition.

The petitioner may actually choose to do both – simultaneously appealing the denial and re-filing the petition – but several other factors may influence the petitioner to choose one option over the other.

For instance, unless one has an immediate relative petition, he/she would most likely be concerned about priority date preservation, especially when the I-130 took years before it was adjudicated. Re-filing an I-130 means that the priority date in the first petition would be lost.

Another factor is processing time. Appeals with the BIA can take more than one year while I-130 adjudication may take a shorter time. One more thing to consider is the cost: the I-130 filing fee of $420 must be paid again when re-filing, which is a lot more money compared to the $110 appeal fee.

If an appeal to the BIA is unsuccessful, the petitioner may seek review of the I-130 denial in federal court.

The petitioner’s other options include the filing of a motion to reopen/reconsider. A motion to reopen must include new facts supported by affidavits or other documentary evidence. In a motion to reconsider, the petitioner must show that the decision was incorrect based on the evidence of record at the time of the decision. There is a $630 filing fee and a 30-day period to file the motion.

Naturalization Denial Due to False Statements

Giving false information on immigration applications not only leads to a possible denial of the benefit requested. It could also someday result in a denial of one’s naturalization application.

In one case, a district court agreed with the USCIS in denying a naturalization applicant for false statements she had made in her I-751 petition to remove conditions on her permanent residence.

At the time that she filed the petition, her U.S. citizen husband no longer resided with her and was not even in the same state. She also had a child by another man. However, in the I-751 she listed a Florida address for her husband and falsely stated that she had no children.

False statements made in order to obtain any immigration benefit can result in a finding of lack of good moral character. Good moral character is one of the requirements for naturalization. The applicant has the burden to establish that he/she had it for the required period of residence and up to the time of filing and administration of oath.

The USCIS generally looks only at the statutory period (generally five years, three for spouses of U.S. citizens) to determine whether the applicant meets the requirement.

If before the statutory period the applicant committed acts or exhibited conduct that would otherwise show lack of good moral character, the USCIS may not deny the application solely on these acts or conduct, but it will consider whether, during the statutory period the applicant has reformed his/her character.

The law gives no specific definition for good moral character but the USCIS has adopted a reasonable standard. It is described as that character measured by the standards of average citizens of the community, but which does not require the highest degree of moral excellence.

Certain classes of people are enumerated in the law as ineligible for naturalization for lack of good moral character, such individuals who were at any time convicted of murder or an aggravated felony.

Aliens who during the statutory period were convicted of a crime involving moral turpitude, or committed 2 or more offenses and sentenced to at least 5 years in prison, or committed drug offenses, are also deemed to lack good moral character.

Admission that one has committed a criminal act either in the U.S. or abroad, although not formally charged, arrested or convicted for it, makes him/her ineligible for naturalization.

Other classes of ineligible aliens include habitual drunkards, smugglers, polygamists, illegal gamblers and those engaged in prostitution or commercialized vice. A bar also exists for aliens previously ordered removed, illegal voters, and those who have made a false claim to U.S. citizenship.

Other grounds include willful failure or refusal to support dependents, adultery, or unlawful acts that adversely reflect on moral character, committed during the statutory period. However, applicants may be able to overcome a negative finding by showing mitigating or favorable factors.

Some male applicants also overlook the requirement of selective service registration. Save for a few excepted classes such as nonimmigrants on student, visitor, tourist or diplomatic visas, all men over 18 but less than 26 years old must register with selective service. Knowing and willful failure to do so will raise concerns on one’s eligibility for naturalization.

Abandonment of Permanent Resident Status

For many people, obtaining a green card is the fruit of a long and arduous struggle. But once they become lawful permanent residents (LPR), they sometimes make the mistake of thinking that they can freely travel in and out of the country. Still some believe that if they wait a few more years they are already eligible to become naturalized U.S. citizens.

It is easy to forget that lawful permanent residence gives one the privilege of being able to reside in the United States on a permanent basis. It is not a legal right but a privilege that can be revoked, which is why one should be aware of the requirement to maintain that status.

Most LPRs who reside or make frequent trips outside the U.S. do so because of employment, school, business, medical reasons, or other family members’ immigration status. They must remember, however, to maintain a continuous and uninterrupted intention to return to the United States because failure to do so may result in a loss of that status through abandonment.

Having the intent is not enough and the LPR must be ready to prove it through sufficient evidence. Some of the circumstances that may demonstrate ties to the United States include home ownership, maintenance of a U.S. bank account, family ties in the U.S., employment, business or properties in the U.S., and maintaining a U.S. driver’s license.

Generally, absence from the U.S. for more than one year is considered abandonment of residence. However, the test is not the length of time spent abroad but whether the LPR intended to be abroad only temporarily.

As a rule, a visit is temporary if it is for a relatively short period which is fixed by some early event or if the LPR had a continuous uninterrupted intention to return to the U.S. during the entire time of the visit. The LPR upon re-entry may demonstrate the reasons for staying abroad by showing legal and medical records, school records, employment letter, and affidavits, as may be applicable.

A reentry permit is a travel document issued by the USCIS to those who expect to spend lengthy periods of time abroad. It is generally valid for two years. The LPR will not be deemed to have abandoned status just because of the duration of his/her stay/s abroad. However, it is still not a guarantee of admission and the LPR may be asked to give proof that there was no abandonment of residence.

Maintenance of permanent residence is also important for naturalization purposes. One of the requirements in a citizenship application is continuous residence in the United States for at least 3 or 5 years. The applicant must not have, within the last 3 or 5 years, been outside of the U.S. for one year or more. Absences less than 6 months generally do not break continuous residence, while absences more than 6 months but less than 1 year raise a rebuttable presumption of abandonment of residence.

With or without a re-entry permit, and regardless of the length of stay abroad, classifying oneself as a nonresident alien for tax purposes raises a rebuttable presumption that an LPR has abandoned that status. Furthermore, LPRs should not overlook the requirement of filing U.S. tax returns even while living abroad.

Still, an LPR has certain rights, including the right to due process. For instance, where his/her status is challenged as having been abandoned, the LPR has the right to have that issue determined by a judge. It is important to note that even while in removal proceedings, the LPR remains a permanent resident and continues to be so until a final administrative order is issued that changes that status.

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