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Restriction on Adjustment of Status of Fiancé

A special kind of visa known as K-1 is available to allow a foreign fiancé(e) of a U.S. citizen to enter the U.S. for the purpose of marrying the U.S. citizen. In this type of situation, a tourist visa is not appropriate since the foreign fiancé(e)’s intent is to reside in the U.S. permanently after marriage.

But marriage alone does not confer permanent resident status. The fiancé(e)’s entry on the K-1 visa is only the start of a process to a green card, which comprises four main steps.

First, the U.S. citizen must file a petition (Form I-129F) with the USCIS along with evidence of the relationship with the foreign fiancé(e), including evidence that the two have met in person within the last two years. The couple also must both be free to marry and have a bona fide or good faith intention to marry.

If the petition is approved, the foreign fiancée will apply for the K-1 visa at the U.S. consulate or embassy abroad. The K-1 visa is a single entry visa that allows the foreign fiancé(e) to enter the U.S. to marry the visa sponsor within 90 days of arrival.

Second, the parties must actually get married within 90 days, or else the K-1 fiancé(e) would be required to depart the United States.

If the parties do get married within 90 days, the foreign spouse can proceed to the third step which is the application for adjustment of status. Under the law, the foreign spouse can become a permanent resident only as a result of marriage to the U.S. citizen who filed the K visa petition.

The foreign spouse may adjust only to a conditional lawful permanent resident (LPR) status. On the second anniversary of the green card, the spouses go through the fourth step which is the filing of the joint petition to remove the condition on the foreign spouse’s LPR status. This two-year period serves to satisfy the government that the marriage was entered into in good faith and not for immigration purposes.

If joint filing of the petition is no longer possible, such as when the marriage has ended in divorce, the foreign spouse can file for a waiver of the joint filing requirement. If the waiver is granted, the condition on the foreign spouse’s LPR status is removed. On the other hand, if it is denied, the foreign spouse loses LPR status and gets placed under removal proceedings.

What happens if the marriage does not survive the 2-year period and the foreign spouse’s joint petition waiver is denied? A recent decision from U.S. Court of Appeals for the Second Circuit highlights a specific restriction on those who were admitted to the U.S. on a fiancé visa: they may not adjust to LPR status except on the basis of marriage to the K-1 visa sponsor.

In the case Caraballo-Tavera v. Holder, the foreign spouse had gone through the first three steps described above. But since he and his U.S. citizen wife had already divorced, he filed the petition to remove the conditions by himself and sought a waiver of the joint filing requirement.

The USCIS denied the waiver request, finding that he failed to prove the bona fides of his marriage. Left without lawful status, he was placed under removal proceedings.

At that time, he was already the beneficiary of an approved immigrant visa petition by his U.S. citizen daughter. He argued before the immigration judge that he was eligible to adjust status on that basis.

The immigration judge disagreed, as did the Board of Immigration Appeals. The Second Circui Court of Appeals ruled that he was ineligible to adjust status through his U.S. citizen child or on any basis other than marriage to the original K-1 visa sponsor, his ex-wife.

The court in a footnote explained however that this does not mean that an alien who fails to comply with the K-1 process is forever barred from getting legal immigrant or nonimmigrant status in the U.S. under otherwise applicable law.

Bill Lifting Visa Caps Advances

The immigration bill easing the wait for green card for nationals of some countries will be introduced in the Senate soon. Republican Senator Chuck Grassley, who last year blocked the Fairness for High-Skilled Immigrants Act (H.R. 3012) which was overwhelmingly passed by the House of Representatives, has finally lifted his hold on the bill.

Senator Grassley put a hold on the bill because he believed the law did not protect high-skilled American workers. He has introduced legislation to reform the H-1B and L-1 visa programs.

A compromise was recently struck between him and Democratic Senator Chuck Schumer of New York. The bill would provide for increased oversight of the H-1B visa program. The Department of Labor would be able to better review labor condition applications and investigate fraud and misrepresentation by employers. There would also be annual compliance audits of employers who bring in H-1B workers.

H.R. 3012 eliminates per-country caps for the employment-based categories but not increase the over-all number of available immigrant visas or green cards. Its effect would be to shorten the waiting time of applicants from China and India, some of whom face waits of up to 70 years.

The bill would also adjust upward the per country limit on visas in the family-based preferences, from the current 7% limit to 15%. This would benefit nationals of the Philippines and Mexico who are waiting for a family-based green card.

The current visa system places an annual cap of 140,000 visas for employment based categories, and 226,000 for family-based categories. No more than 7% of that number is allowed to be allocated to any one country. Family members of the green card applicant are counted towards the number of available visas.

This current system is criticized for being unfair and arbitrary because it discriminates against nationals of countries where the demand for green cards is high and where many high-skilled immigrants come from. For the supporters of H.R. 3012, a first-come-first-served system in the employment preferences is the fair solution to the visa backlog.

However, since the bill would only redistribute existing visas and not add new ones, the elimination of the country caps would result in longer wait times for other countries.

For example, because of the most recent visa retrogression visa numbers in the EB-2 category (advanced degree holders and persons of exceptional ability) have become unavailable for nationals of China and India, and in July 2012 a cut-off date of January 1, 2009 was created for the Philippines, Mexico and other countries. Assuming that the retrogression continues, the two-year backlog faced by nationals of the Philippines, Mexico and other countries would increase as more immigrant visas are reallocated to China and India because of the operation of H.R. 3012. It is expected that by 2015, there would be a backlog for all countries in the employment-based categories as a result of the bill.

On the other hand, nationals of Mexico and the Philippines, the two most oversubscribed countries in the family-based categories, would face shorter waiting times for a green card, especially siblings and children of U.S. citizens.

H.R. 3012 passed in November 2011 with the support of 96% of the House of Representatives, a rare showing of cooperation in today’s deeply divided Congress. Businesses in the science and technology fields are ardent supporters of the bill.

Pending debate in the Senate, the fate of the bill is uncertain but, if the bipartisanship in Congress is any indication, it will likely be passed soon. President Obama endorsed the bill last year. GOP candidate Mitt Romney has expressed support for high-skilled immigration reform in general.

Abandonment of LPR Status Due to Trips Abroad

The process of becoming a permanent resident of the United States is often a long and costly journey. Perhaps because they are relieved to finally get their green card and long to travel or handle personal affairs abroad, some new lawful permanent residents (LPR) believe that they can just go in and out of the U.S. as long as they make it a point to reside here for at least a few months each year.

A recent decision of the 6th Circuit Court of Appeals should serve as a warning for green card holders. In Lateef v. Holder, the Court found that the LPR had abandoned her LPR status for spending the majority of her time as an LPR in her native country.

Immigration authorities found that out of 116 months that Lateef had been an LPR, she spent only 35% or 40 months in the U.S. and 65% or 76 months abroad. She had no employment history or properties in the U.S. and her only ties were her parents and brothers.

Lateef’s seven trips abroad were of various durations. She went back to her native country shortly after becoming an LPR in order to finish her medical studies and for this purpose obtained a re-entry permit. The court found this trip to be temporary because it ended upon her graduation, but not so with her subsequent trips between 1995 and 2001. She married her husband during one visit. On another, she took an exam and became pregnant. She made visits to see her husband and to attend to her daughter who was not only missing her but was also developing behavioral problems, and she also helped plan her brother’s wedding.

In November 1999 she returned to her home country because of her daughter’s continuing behavioral problems. In November 2000, her husband and children were granted immigrant visas. She remained abroad for another three months to attend weddings.

Lateef and her family attempted to enter the U.S. in February 2001 but a few months later they were placed under removal proceedings. Lateef’s abandonment of status was imputed to her daughter and served as basis to revoke the immigrant visas of her husband and her child. They were ordered removed by the immigration judge.

The law allows an LPR to temporarily leave the U.S. and maintain her LPR status if she has not abandoned her LPR status or if she has not been away from the U.S. for more than 180 days. A protracted trip abroad must have been caused by reasons beyond her control and for which she was not responsible in order for her to remain admissible.

In determining whether Lateef’s trips abroad were temporary, the appellate court looked into whether the trip was for a “relatively short period fixed by some early event” or ended “upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time”.

The Court said that Lateef remained abroad for one year and three months without any definite plans of returning to the U.S. It noted that although Lateef said that she wanted to return to the U.S. as soon as possible, she only did so three months after her family obtained immigrant visas. The Court found that this last trip showed that Lateef abandoned her LPR status because it was over 180 days and was not caused by reasons beyond her control.

Lateef was found to have abandoned her LPR status even though the record showed that she took steps to be licensed as a doctor in the U.S., applied for medical residency positions, and applied for citizenship. Note that she also tried to bring her own family here as immigrants and that her main reason for her last stay abroad was her daughter’s continuing behavioral problems..

This case is a reminder that abandonment of status is a serious matter that could affect not just the LPR but also any minor children and those whom the LPR petitioned for. A green card holder must not embark on extended trips abroad without a strategy to preserve LPR status in case issues arise. It must be remembered that having a green card is a privilege that grants an alien benefits and obligations, but it is also a privilege in the sense that it can be taken away.

Under CSPA Child Must File Adjustment Within 1 Year

For ten years now, the Child Status Protection Act (CSPA) has given relief to many thousands of children of U.S. citizens and lawful permanent residents who would have otherwise “aged out” or lost the privilege of getting a green card simply for turning 21 years old. Their long wait was in most cases due to government delay in processing the immigrant petitions.

The CSPA allows a child who has turned 21 to still be considered a “child” for immigration benefits purposes. Under Section 3 of the INA, to qualify as a “child” the length of time the petition was adjudicated is deducted from the beneficiary’s age on the date a visa number became available. If using this formula the child’s age falls below 21, the child can benefit from the CSPA if he “sought to acquire” lawful permanent resident status within one year of visa availability.

Previously, the “sought to acquire” portion of eligibility for CSPA age-out protection was interpreted broadly to include “substantial steps” in pursuing lawful permanent resident status. However, the Board of Immigration Appeals recently rendered a restrictive interpretation of this provision.

In a recent case, Matter of Vazquez, a derivative beneficiary of an I-130 petition filed an adjustment of status application more than one year from the date that his visa number became available. The USCIS denied it on the ground that he had “aged out” of his derivative beneficiary status.

The USCIS reasoned that he had not “sought to acquire” permanent resident status within a year of visa availability because he did not file his adjustment application within 1 year of the visa number becoming available. Since he did not meet the “sought to acquire” requirement, he was denied the benefit of the CSPA.

He was then placed under removal proceedings. He argued before the immigration judge that he met the “sought to acquire” requirement because, within the 1 year period after a visa became available, his parents consulted with a notario about filing an application. The judge disagreed with this interpretation and ordered the respondent’s deportation.

He appealed to the Board of Immigration Appeals (BIA) and argued that since the law uses “sought to acquire” instead of “filed”, Congress intended to allow a range of actions aside from the “filing” of the adjustment of status application.

The Department of Homeland Security (DHS), on the other hand, persuaded the BIA that Congress had to use language that would cover the different processes used by the Department of State (DOS) and the DHS, both of which adjudicate requests for immigrant status. The DOS does not ordinarily use the term “filed” to refer to the initiation of the visa application process. Instead, it uses the word “submit” when referring to the Form DS-230 or the Application for Immigrant Visa and Alien Registration.

The BIA agreed with the DHS and said that it was reasonable for Congress to avoid using the word “filed” because of the difference in language between DOS and DHS.

To the BIA, the 1 year period given to the alien to take advantage of CSPA’s age-out protection was more than enough to enable the alien to seek legal assistance, gather documentation and execute the forms. When it comes to DHS (USCIS) cases, therefore, the proper filing of an adjustment of status application will unquestionably satisfy the “sought to acquire” requirement.

The alien may also meet the requirement through other actions that fall short of filing, such as when an alien submits the application to the DHS but it is rejected for a procedural or technical reason.

Extraordinary circumstances may also satisfy the requirement, as in cases where the failure to file timely was because of circumstances beyond the alien’s control. For example, the alien may have paid an attorney to file the adjustment application but the attorney failed to do so in time.

Contacting an attorney about initiating the process of obtaining a visa is not enough to meet the requirement, according to the BIA.

Unfortunately, since Vazquez is a precedent ruling it has to be followed even if one may argue that it is not faithful to the intent behind the remedial legislation. Congress passed the CSPA to bring families together and give relief to children who lose the opportunity to become permanent residents when the government takes too long to process their adjustment of status applications. A court has even ruled that the CSPA should be interpreted in a way that provides expansive relief to children of U.S. citizens and permanent residents.

The ruling in Vazquez limited itself to DHS cases. For DOS cases or consular-processed immigrant visa applications, the broader reading of the “sought to acquire” provision should still apply.

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