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USCIS Issues New Guidance on Same-Sex Marriage

The USCIS issued new guidance on same-sex marriage last July 26 which answers frequently asked questions on filing of petitions, applying for immigration benefits, reopening previously denied petitions, changes in eligibility, residency requirements for naturalization and inadmissibility waivers.

The guidance is intended to effect a quick implementation of the Supreme Court decision in
U.S. v. Windsor which declared Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional and ensure that same sex couples are given the same immigration benefits as all other couples.

A U.S. citizen or a lawful permanent resident who is in a same-sex marriage can now file an I-130 petition on behalf of his/her same-sex spouse. The USCIS will adjudicate the petition and the visa application or adjustment of status in the same manner that it adjudicates a petition or application filed on behalf and by an opposite-sex spouse. Also, a U.S. citizen who is engaged to a foreign national of the same sex may file a petition on Form I-129F on behalf of his/her fiancé/fiancée so long as other immigration requirements are satisfied.

The guidance further states that the validity of a marriage for immigration benefits is determined by the law of the place where the marriage took place and not the place of domicile. This rule is “subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage.” However, this would depend on “individual, fact-specific circumstances”. Further guidance will be issued on this.

Same-sex marriage is presently recognized in the District of Columbia and 13 states, namely, California, Connecticut, Delaware, Iowa, Maine, Massachusetts, Maryland, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

The USCIS is currently in the process of identifying I-130 petitions which were denied after February 23, 2011 solely on the ground of DOMA and will attempt to notify petitioners that their cases will be reopened. However, petitioners are advised to email USCIS at USCIS-626@uscis.dhs.gov notifying the agency that their cases should be reopened. Additional evidence will be accepted during this process.

For those whose petitions were denied before February 23, 2011, it is required that petitioners email the agency at USCIS-626@uscis.dhs.gov before March 31, 2014 for the USCIS to reopen their cases. It will reopen all applications associated with the I-130 petition including applications for adjustment of status and work authorization.

The USCIS guidance also clarifies that the spouse of a same-sex marriage is now eligible to benefit from the status as spouse accompanying a family sponsored or an employment-based immigrant or spouse of a nonimmigrant, asylee or refugee. Also, the effect of same-sex marriage on the qualifying relationship as a “child,” “son or daughter,” “parent,” or “brother or sister” for immigration purposes will be the same as opposite-sex marriage.

The residency requirement for naturalization for the same-sex spouse of a U.S. citizen will be three years so long as the couple were living in marital union three years immediately preceding the filing of the N-400 application.

Eligibility for waivers of inadmissibility on the basis of the status as spouse of a U.S. citizen or lawful permanent resident also extends to the same-sex spouse and the case shall be adjudicated in exactly the same manner as those of opposite-sex couples.

What To Do If Sponsor’s Income Is Insufficient

A U.S. citizen or lawful permanent resident who petitions or sponsors a family member for a green card must submit with the relative’s adjustment of status application or immigrant visa application an affidavit of support or form I-864 to guarantee that the intending immigrant will not become a public charge.

In order to be eligible to execute an affidavit of support, the sponsor must be a U.S. citizen or a lawful permanent resident, at least 18 years old and domiciled in the United States.

The sponsor’s income must also be able to meet at least 125 percent of the Federal Poverty Guidelines. This varies according to the sponsor’s household size which will include the number of immigrants previously sponsored. The 125 percent threshold is determined at the time of the filing of the affidavit of support.

Whether it is reasonable to assume that the sponsor will be able to sustain the minimum income required is the question that examiners look into to determine if the affidavit of support is sufficient. If the sponsor’s income in the most recent tax year meets the 125 Poverty Guideline threshold, then it is generally acceptable.

However, there are instances when even if the income indicated in the most recent tax return does not meet the requirement, USCIS may still find the affidavit of support sufficient. One example is when the sponsor’s income from a new job can meet or even exceed the 125 percent threshold. In this case, the affidavit of support in itself may be sufficient.

On the other hand, USCIS might also find that the affidavit of support is not sufficient even if the income reflected in the most recent tax return meets the requirement. An example is when the job is only temporary in nature and the USCIS finds that the sponsor is not likely to maintain the income.

When the sponsor’s income is insufficient, his assets may be counted to meet the shortfall. The net value of the assets must equal at least 5 times the difference between the household income and the minimum income required. The assets included should be “readily available into cash within one year.” Assets may include money in the bank and personal properties such as automobiles. The assets listed must be specifically described including the existence of liens and liabilities. If it is a bank statement, the transaction history must cover at least 12 months. Personal properties may be considered using standard valuations and appraisals.

The sponsor may not use supplementary security income or SSI, food stamps and other federal means-tested benefits as income.

If the petitioner has not filed an income tax return, he may still sponsor his relative; however, he must file a late tax return and proof of late-filed tax return must be obtained prior to filing. If the petitioner had no legal duty to file, he must provide an explanation.

The income of other household members may also be included in the affidavit of support to augment the household income. This is made through Form I-864A. The intending immigrant’s income may also be included so long as the income was earned through lawful employment and it will continue to be available after he obtained her green card. This is indicated in the affidavit of support of the principal sponsor and will not require the submission of Form I-864A.

If the sponsor does not meet the income requirement, a joint sponsor may file a separate Form I-864. The joint sponsor must meet the income requirement separate from the sponsor. Their income cannot be combined to meet the requirement.

Great News for Spouse and Children of Green Card Holders

The August 2013 Visa bulletin shows that the Family-based 2A preference category which refers to spouses and children of lawful permanent residents (LPR) is current for all countries.

This means that starting August 1, those who are in the U.S. may file for adjustment of status while those who are processing their immigrant visa application abroad may be scheduled for visa interview.

In announcing the visa number availability, the Department of State said that the F2A preference category will be expected to remain current for several months. Although there is a large number of F2A registrants, the Department of State explained that it had taken this step to generate an increased level of demand since not enough applicants have been actively pursuing final action on their case. This will ensure that all of its available visa numbers will be fully utilized.

The Department of State also said that at some point during Fiscal Year 2014 which covers October 1, 2013 through September 30, 2014 the cutoff date could be retrogressed as a corrective action. Note that in July 2013, the cutoff date was October 8, 2011.

In light of this development, beneficiaries of family-based 2A petitions, regardless of their priority date, should file their adjustment applications. Those who have no I-130 petition should concurrently submit their I-485 and I-130 petition.

A pending adjustment application, will allow them to remain in the U.S. and work until their application is adjudicated. They may also be allowed to travel.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification filed on or before April 30, 2001. If the visa petition or labor certification was filed between January 14, 1998 and April 30, 2001, the alien must prove that he/she was in the U.S. on December 21, 2000.

The other family-based categories will not advance significantly from the July 2013 visa availability. F1 preference which refers to unmarried sons and daughters of U.S. citizens will advance by 3 months worldwide (9/1/06) and by 6 months for the Philippines (1/1/01).

F2B (unmarried sons and daughter 21 or older of LPRs) will advance by only a month worldwide (12/1/05) and none for the Philippines (12/22/02).

F3 (married sons and daughters of US citizens) will advance by 2 months worldwide (12/8/02) and 1 week for the Philippines (12/1/92) while F4 (brothers and sisters of U.S. citizens) will advance by 1 month worldwide (6/22/01) and 3 weeks for the Philippines (1/8/90).

There will be little or no change in the employment-based categories (EB) except for India’s EB2 category which will advance from September 1, 2004 to June 1, 2008. EB1, EB2, EB4 and EB5 will remain current. The EB3 for skilled workers and unskilled workers will have the same cutoff date of (1/1/09) worldwide but will advance by 3 weeks to 10/22/06 for the Philippines.

File Waiver If You Entered Under Different Name

Fraud or willful misrepresentation of a material fact is a ground of inadmissibility that prevents an alien from getting a green card. The act of entering the United States under a different name is an example.

However, the alien may apply for a waiver to forgive the fraud. To be eligible for this waiver, the alien must have a qualifying relative. The law considers only U.S. citizen or lawful permanent resident spouses or parents to be qualifying relatives. Children are not qualifying relatives for purposes of the waiver.

The alien must demonstrate extreme hardship to the qualifying relative in case of a finding of inadmissibility. Several factors are relevant in determining extreme hardship, including the qualifying relative’s family ties in the United States; political and economic conditions in the country of relocation; the financial impact of departure from the U.S.; and health conditions along with the unavailability of suitable medical care in the country of relocation.

Not only must these eligibility requirements be met, but the alien must also show that his/her case warrants a grant of waiver in the exercise of discretion. The negative factors must be balanced with the equities or the social and humane considerations in one’s case.

Obtaining a waiver therefore is not easy, but by no means is it impossible. In a case that our firm recently handled, we were able to help a client get his green card despite the misrepresentation he committed as he entered the U.S. with an assumed name more than thirty years ago.

Our client left the Philippines in the early 1980s to escape poverty and political strife, entered the U.S. using a passport and B-2 visa with a different name, and remained past his authorized period of stay.

Two years later, he met a fellow recent immigrant who was working as a nurse at a New York hospital and would later get her green card and then her U.S. citizenship. They fell in love, had children, and lived together as husband and wife ever since.

For almost three decades, our client kept secret his immigration status from other people until he neared retirement age. Unless he becomes a lawful permanent resident, all his hard work and perseverance since he arrived in the U.S. would be for naught. He had to come to terms with his past and decide whether to finally apply for a green card.

Faced with the possibility of being denied a green card if found ineligible for a waiver and eventually placed in deportation, he sought our firm’s assistance.

We showed the immigration authorities that his U.S. citizen wife would suffer extreme hardship whether she remains in the United States by herself or is forced to relocate to the Philippines to be with our client.

We submitted proof of her health conditions, including diabetes and hypertension, for which she was receiving top-notch medical care in the U.S., and compared that with the high cost of medicines and treatment in the Philippines. We pointed out that the wife has many family ties in the U.S., including her U.S. citizen children, while she no longer has family in the Philippines.

We also argued that relocation would cause financial hardship because she would lose her job at the hospital in the U.S. but most likely not get hired in the Philippines because of her age and the unfavorable labor market conditions for nurses there.

Our waiver packet included supporting affidavits and documentation to evidence the wife’s extreme hardship as well as our client’s good moral character.

Fortunately, we were able to convince the USCIS that the U.S. citizen wife would face extreme hardship if the waiver is denied and that our client was deserving of a favorable exercise of discretion.

Despite Lopsided Senate Vote, Immigration Bill Faces Rough Road in House

The Senate approved last June 27 the “Border Security, Economic Opportunity, and Immigration Modernization Act” by a 68-32 vote. Immigrant advocates are hoping that the broad bipartisan support would put pressure on the House of Representatives to act and vote on the bill which would finally fix the country’s broken immigration system.

But House Speaker John Boehner (R-Ohio) has indicated that the House is not going to take up and vote on whatever the Senate passed and that they are going to make their own bill. The House Speaker said that “For any legislation, including a conference report, to pass the House, it’s going to have to be a bill that has the support of a majority of our members.” For the immigration bill, this means that a majority of the party in control of the House will have to support the proposed legislation before it is voted upon by the full chamber.

With the majority of the members of the GOP-dominated House opposing the proposed pathway to citizenship for the 11 million undocumented immigrants living in the U.S., the comprehensive immigration reform bill will face a much longer and tougher road ahead. In fact, a group of conservatives in the House of Representatives are already employing the “piecemeal approach” to immigration reform by passing individual bills addressing specific aspects of immigration.

Among the piecemeal measures introduced in the House are the following: a bill dealing with farm workers, temporarily granting them permission to live and work in the U.S. but not providing a pathway to citizenship, a bill requiring businesses to check on the legal status of employees within two years, and a bill criminalizing undocumented individuals who are “unlawfully present” and allowing state and local governments to enforce federal immigration laws.

This “piecemeal approach” is staunchly opposed by Democrats and is seen only as a means to kill any efforts towards creating a pathway to citizenship for the undocumented in the country.

Despite the difficult and tumultuous road ahead, the passage of the bill in the Senate is a major step towards immigration reform which cannot be summarily dismissed nor ignored by the GOP-run House. Achieving the strong bipartisan support in the Senate did not happen overnight. The bill underwent a long process, with more than 300 amendments considered in the Senate Judiciary Committee and critical changes adopted one day before it was finally voted upon.

The amendment bolstering border security by allocating $40 billion for border enforcement measures including doubling the number of Border Patrol agents and installing 700 miles of fencing won over more Republican votes in the Senate.

Notwithstanding the strong opposition in the House, Democratic Senator Charles Schumer believes that the House will ultimately pass the comprehensive immigration bill before the end of the year. Top Republicans have said that with the growing Hispanic and Asian American voting block, any chance at winning the White House will depend on the passage of this bill.

The GOP-controlled House cannot simply put the bill on the back burner. The mounting pressure from religious organizations including evangelical Christians and the Catholic Church, business groups, the high tech industry, labor unions and farm groups just won’t allow it.

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