Guru Immigration Law Blog

How Do I Get a Work Permit?

Posted in Work Permit with tags Adjustment of Status, I-130, Nonimmigrant Visa, Permanent Resident (LPR), Political Asylum, Work Permit on December 26, 2009 by Guru Immigration

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The work permit, or employment authorization document, is a document issued by U.S. Citizenship & Immigration Services (USCIS), usually with a validity of one year, and renewable. It allows the holder to legally work at any job, and it is also the document needed to get a social security number and a driver’s license. So, how and when can an immigrant get one?

At the outset, it must be stated that: a work permit is not something that is applied for as an end in itself, but only as an incidental, or side, benefit accompanying a main immigration application that results in the benefit of permanent residence, and only when the immigrant initially appears to qualify to apply for that main application. Sometimes, a potential client will ask us, “I don’t have any immigration papers but I just want to apply for a work permit. Can you help me?” We’d have to politely explain to this person that there is no such thing as “just applying” for a work permit. You must first see if you qualify for some larger main immigration benefit and apply for that benefit before you could get a temporary work permit.

Most immigrants receive a work permit shortly after their main application for “adjustment of status” to permanent residence is filed with USCIS. This is the application that will allow an immigrant already in the U.S. to receive the benefit of permanent residence (green card). However, not every intending immigrant in the U.S. qualifies to file for adjustment of status. There are requirements of who can and when, as described in our article, “Who Can Adjust Their Status to Green Card Here?” At the time of filing the adjustment application, the immigrant will either be in-status on some kind of temporary nonimmigrant visa, or out-of-status on that visa or illegal but qualifies under immigration rules to file for adjustment. Since the adjustment application will take four months to a year or more for USCIS to schedule an interview and to decide the case, the person is given the side benefit of a work permit so that they can work and take care of themselves in this country while the adjustment application is pending. The law recognizes in this kind of situation that the immigrant must be given a means to legally work and not just sit there doing nothing. Therefore, a separate application for the work permit, the I-765, is filed with USCIS at the same time the main adjustment of status application is filed.

The work permit card is then usually mailed to the immigrant about a month and half to three months after the applications are filed. This card can be taken to the Social Security Administration office to apply for a new social security number and to the local DMV to apply for a driver’s license. If the adjustment application is ultimately denied — there are numerous grounds on which the immigrant may be denied, or is “inadmissible” to the U.S. — the work permit will also be terminated. If the adjustment application is ultimately approved, then the person’s status becomes a permanent resident or green-card holder, and there will be no need for employment authorization since a green-card holder is entitled to live and work permanently in the U.S.

We stated above regarding the main immigration-benefit application that the immigrant must “initially appear to qualify to apply for that main application.” What this means is that, for example, with an adjustment application, the immigrant must upon initial review appear to qualify to file for adjustment of status. Examples? Well, someone who is still waiting in what we call Stage 2 (has an approved I-130 or I-140 petition, but who is still waiting for a visa number because their priority date is not current yet), is not qualified to file for adjustment yet. Or, someone who is still in what we call Stage 1 (does not have an approved I-130 or I-140 petition yet) is not qualified to file for adjustment yet. Or, someone who is not classified as an immediate relative, does have an approved I-130 or I-140 with a current priority date, but whose visa is out of status, will not qualify to file for adjustment (unless the I-130, I-140, or labor certification for them was filed by April 30, 2001). There are other examples. A person like this who applies for adjustment of status will have the application quickly rejected after USCIS personnel has done an initial review of the application package, and so no work permit is given.

So, to obtain a work permit, you must be at the point where you are now qualified to file for some type of application resulting in permanent residence. U.S. immigration law provides many methods for immigrants to receive a green card since there are so many types of immigrants and circumstances (although as a practical matter only a handful of methods are used for the vast majority of immigrants). Some intending immigrants simply do not qualify under any method for a green card due to their being either out of status on their visa, being illegal in this country, or simply do not have enough time or have the right relationship to qualify. We routinely consult with people who, unfortunately leave the consultation with no solution under current law. Such a person cannot get a work permit.

A person who is here on a nonimmigrant visa, such as a tourist, student, or H-1B visa, etc., who is applying to change their status to another type of nonimmigrant visa, is not applying for an immigration benefit resulting in permanent residence. That person is not going to receive a work permit by changing to another type of visa. However, that person, if they have an approved I-130 or I-140 petition which has a priority date that is current, and they are in-status on their visa, does qualify to file for adjustment and to receive a work permit.

Many immigrants whom we have helped are familiar with receiving their work permits not through the adjustment of status application but through a political asylum application. Political asylum is another type of immigration application eventually leading to permanent residence which gives a work permit as a side benefit. A grant of the asylum application will allow the person to remain (and work) permanently in the U.S. and then apply for permanent residence a year afterward. Under the law, a work permit must be given to the asylum applicant within 90 days. Thus, it was and still is a fast way to obtain a work permit in this country: to just apply for political asylum even if the person came to the U.S. illegally. However, asylum requires that the person must have experienced and does fear genuine persecution in their homeland due to their race, religion, nationality, political opinion, or being a member of a distinctive social group, and the persecution is a genuine verifiable reality in that country. People from countries that are stable or peaceful do not normally qualify for asylum. Yet, many people, such as from Mexico (a country in which the government is not persecuting its citizens for the most part), have been deceived in the past by unscrupulous immigration services, “notarios,” and sometimes lawyers, who promised they could obtain work permits quickly for them, but who did not tell these people that they were applying for political asylum on their behalf. Since the asylum application can take years to be decided by USCIS – sometimes 10 years – the applicant gets a renewed work permit every year and thinks that their immigration status in this country must be legal. Eventually, at the asylum interview, however, these people inevitably cannot prove their asylum case as described in their own asylum applications (many did not even read before signing what was in their applications), and so their asylum case is denied. USCIS then puts these people into removal (deportation) proceedings without exception.

There are other less well-known types of immigration applications for certain groups of immigrants, such as NACARA, TPS, cancellation of removal, application for deferred action, etc., that also allow the applicant to receive a work permit as a side benefit. Some of these, such as TPS (temporary protected status) and deferred action, in fact, do not necessarily lead to permanent residence for the applicant but do involve giving him or her a longer term of stay in the U.S. that does not end on a definite date in the immediate future. These applications are more specialized and are beyond the scope of this article.

It must also be pointed out that there are certain people who are here on nonimmigrant visas yet who do work in the U.S. for U.S. companies. For example, H-1, or L-1 visa holders. However, the difference between these people and someone with a work permit is that the person with the work permit can work for any employer and can change to a new job anytime, whereas the person with the H-1 or L-1 visa can only work for that particular employer who petitioned for them on their nonimmigrant visa. If the visa-holder wishes to work for another employer, they have to go through the process of finding a new employer to file a new petition for them in that visa category.

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Who Can Adjust Their Status to Green Card Here?

Posted in Adjustment of Status with tags Adjustment of Status, Immediate Relative, Permanent Resident (LPR), U.S. Citizen Spouse, Unlawful Presence Bar (3- or 10-yr Bar), visa numbers on October 4, 2009 by Guru Immigration

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Recently, we’ve received many questions regarding adjustment of status. This is an extremely important issue, maybe the most important, for intending immigrants who are already here in the U.S. Not being able to adjust their status to green card here but having to go back to their countries to finalize the process could be disastrous due to the 3- or 10-year bar. However, from the emails and comments received, quite a few people are confused as to who is eligible to file for adjustment and when. So, we thought a post regarding this subject would be helpful to the readers of this blog.

First of all, adjustment of status is the process by which the status of a person already in the United States, either on some temporary nonimmigrant visa or no visa at all, is adjusted to that of a lawful permanent resident (LPR), or green-card holder. It is a process that involves making sure the immigrant is admissible to the U.S., that is, does not have problems in their past that would prevent them from getting their green card, such as criminal, health, drug problems, terrorism-related issues, immigration problems such as a prior removal, deportation, unlawful presence or being out-of-status in the U.S., and many other grounds. See Top 10 Reasons Why Immigrants Get Visas Denied. Thus, adjustment of status is not automatic and it is not a “right” to a green card, as some people have believed. In fact, many immigrants’ adjustment applications are denied for various reasons, and they are placed into removal proceedings soon after if they were in unlawful status in the U.S. prior to filing for adjustment.

When can an immigrant file for adjustment of status? The first thing that must be checked is: does the immigrant have an I-130 or I-140 petition for him or her that has been approved yet? If not, then they cannot yet adjust status, unless they are being petitioned for as an immediate relative who is filing the I-130 concurrently (at the same time) as the adjustment of status application. Only immediate relatives are allowed this type of concurrent application, and these people are defined as the following categories of relatives of U.S. citizens: (1) spouses, (2) children under 21, and (3) parents (when the citizen is at least 21). For other immigrants who are not immediate relatives, they must have a standalone I-130 (or I-140) filed for them and that must be approved. We have called this getting through Stage 1 of the process.

The second thing that must be checked is: is a visa number available currently in the correct category? The way to do that is to go to the State Department Visa Bulletin, click on “Current Bulletin,” and check what priority date is currently the cut-off date for your category and country. Compare the cut-off date to your I-130 petition’s priority date. Only those with priority dates prior to the cut-off date have visa numbers available. So, if your date is the same or after the cut-off date, no visa number is available at this time for you. The exceptions are those immediate relatives again. There are always visa numbers available for these people at any time, i.e., no wait for visa numbers for them.

If and only if a visa number is available for an intending immigrant can that person file for adjustment of status. Since a visa number may not be available for many years in the category the immigrant has been petitioned under, the adjustment application cannot be filed until then. In other words, the immigrant must go through Stage 2 of the process, which can take many years. Incredibly, people have consulted and informed us that some other lawyers have told them that they could file for adjustment now or soon, ignoring their situation that a visa number would not be available for years, or still waiting in Stage 2. Filing an adjustment application prematurely, before a visa number is available, may result in a loss of thousands of dollars in filing fees (U.S. Citizenship & Immigration Services sometimes collects the fees and then tells the immigrant they’re not eligible to file for adjustment yet!) AND may result in removal proceedings if the immigrant was out-of-status or illegal in the U.S. prior to filing for adjustment.

It cannot be overly emphasized that if you are even one day out-of-status in this country prior to filing for adjustment, the adjustment application will be denied, unless you fall into one of the exception categories below (categories 2 through 5). If no exception applies, you would have to go back to your country to receive the immigrant visa leading to the green card. However, stepping foot outside the U.S. will trigger the 3- or 10-year bar if you have been more than 180 days out-of-status in this country. As a result, you may not be able to come back for 3 or 10 years, a dilemma which is described in our other blog articles “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?” and “Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?“

Who can file for adjustment of status? The following are the ONLY categories of people who can file for adjustment when a visa number is available for them:

1. A person who is in-status on their visa, that is, maintaining legal status on their visa, at the time they file for adjustment.

Example: A is maintaining status on his student visa by duly attending school and finishing up his degree. A marries B, a U.S. citizen. A can file for adjustment through being sponsored by B since he is in-status on his student visa.

2. A person who is out-of-status on their visa, no matter for how long, BUT is being petitioned for as an immediate relative.

Example: A’s tourist visa expired 5 years ago and she is still in the U.S. A marries B, a U.S. citizen. A can now file for adjustment even though she is out-of-status because, as the spouse of a citizen, she is categorized as an immediate relative of B. Immediate relatives also include children under 21 of citizens, and parents of citizens when such citizens are 21 and over.

3. A person who is out-of-status on their visa, not being petitioned for as an immediate relative but in a preference relative category (other relatives who are not “immediate relatives”), or petitioned by a U.S. employer, but had an I-130 petition, I-140 petition, or labor certification filed for them on or before April 30, 2001.

Example: A’s H-1B visa expired two years ago and he is still in the U.S. out-of-status. He came to the U.S. as an F-1 student in Aug. 2000 but changed status to H-1B in 2002. A has a U.S. citizen sister, B, who filed an I-130 petition for A on April 30, 2001 in the F4 category (brothers and sisters of U.S. citizens). A visa number is not available in this F4 category for many years, but when it is, A can file for adjustment even though he has been out of status and not categorized as an immediate relative of B.

4. A person who entered the U.S. illegally, but had an I-130 petition, an I-140 petition, or a labor certification filed for them on or before April 30, 2001.

Example: A came to the U.S. illegally in 1999. A now marries B, a U.S. citizen. However, A had a proper I-130 filed for him by a U.S. citizen ex-wife on April 21, 2001 that was discontinued due to their divorce. A can now file for adjustment through being sponsored by his current wife, B.

5. A person who has not been more than 180 days out-of-status on their visa by either violating the terms of the visa, or engaging in unauthorized employment, who is now adjusting under an employment-based category, i.e., being petitioned for by a U.S. employer. Also, this assumes this person is not in category 3 above, i.e., does not have a labor certification or employment petition filed for them on or prior to April 30, 2001.

Example: A is here on an H-1B visa to work only for company X. However, A engaged in unauthorized employment by working on the side for company Y for 180 days. Y filed an I-140 petition for A to offer a permanent job position. When a visa number became available last month on the I-140, A had otherwise maintained her H-1B status by continuing to work only for X, so she was allowed to adjust her status to green card based on Y’s I-140 for her.

Bad Advice on Adjustment of Status

An example of the bad and confusing advice given to some readers of this blog regarding the subject of adjustment of status is found in the following email from a concerned mother:

Wow, some terrible advice this woman got for her daughter here! She has been misled by the lawyers she consulted with (if what she has described is accurate). She said: “We consulted other lawyers and one said her I-94 should be ignored since we filed the I-130 form.” The I-94 was the form given to the daughter when she came on the tourist visa to put in her passport and on it is stamped the final date she is entitled to stay in the U.S. to visit, after which she must leave. This lawyer’s advice is bad because having an I-130 filed for the daughter does not extend the daughter’s lawful status in this country! It is only a petition to try to prove to the government that she is the daughter of her mother. If the daughter ignores the I-94, meaning she will not leave the U.S. on the final date stamped in there, she will overstay her tourist visa and be out-of-status, unless she manages to change her status in time to another type of nonimmigrant visa, such as a student visa. But, assuming she is unable to change her status and continues to stay in this country out-of-status, she will not be able to adjust her status to green card here, which we suspect is what she and her mother really want. After reading the information above regarding who can adjust their status, the reader can easily verify that the daughter here will not fall within category 2 of persons who can adjust because she is not an immediate relative of her mother (she is over 21 and the mother is only an LPR, not a citizen). She does not fall into category 3 because she does not have an I-130 petition filed for her on or before April 30, 2001.

“The other [lawyer] asked us to file the Adjustment of Status since she is already here with us, this way she could stay here and wait for her resident visa.” This is equally bad advice from another lawyer. As seen above, the daughter is in the F2B category, and a check of the October 2009 Visa Bulletin shows that the cut-off date in that category and for most countries is: 22AUG01. Therefore, only those people in the F2B category who had the I-130 petition filed for them prior to August 22, 2001 currently have visa numbers available. The daughter’s priority number here is somewhere in the summer of 2009, let’s say August 2009. Thus, her priority date is about 8 years behind! She cannot file for adjustment at this time, but must still go through Stages 1 and 2 of the process, which will take about 8 years or so. In fact, filing adjustment of status prematurely may lead to removal proceedings if she is out-of-status, as mentioned above. Perhaps what the lawyer actually meant was that she will be able to file for adjustment of status in the future (8 years or so from now, probably less) whenever a visa number becomes available in the F2B category. However, during that time, what this lawyer did not seem to understand, or failed to explain, is that the daughter has to find a way to maintain her legal status in this country for many years by some other type of nonimmigrant visa, such as a student visa, H-1B visa, etc.

The problem with these nonimmigrant visas is that one may find it difficult to change status to those visas or maintain status in one of those visas for that long. For example, can one really remain a student for 8 years or so? The student visa requires that the student enrolls in a school with a course of studies leading to a degree or objective. Perhaps if she tries to get a Bachelor’s degree, a Masters, and a Ph.D, then eight years might be possible. As for a work visa, such as the popular H-1B, many want that visa but do not qualify because they do not have a bachelor’s degree, and/or because they cannot find a U.S. company willing to petition for them in a job that normally requires at least a worker with a bachelor’s degree, or they simply cannot find such a job offer at all in this economy! Thus, it is not always easy to try to maintain legal status at all times in this country prior to filing for adjustment of status while waiting for a visa number to be available.

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Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

Posted in Immigrant Visas, Lawful Permanent Residence, Naturalization, Removal (Deportation) Proceedings, Voluntary Departure, Work Permit with tags Consulate Processing, Extreme Hardship, I-130, Naturalization, overstay, permanent residence, Removal (Deportation) Proceedings, Unlawful Presence Bar (3- or 10-yr Bar), voluntary departure, Work Permit on September 24, 2009 by Guru Immigration

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Many people have written us skeptical or not sure of the danger of the 3- and 10-year bars. Admittedly, these bars seem somewhat abstract or theoretical, and it can be difficult to grasp how they could affect oneself. Some people have asked how is it that people who are already in the U.S. “cannot get their papers here.” Well, that’s the way the law currently is. It was passed in 1996 as a way of penalizing people who came here illegally or who came legally but overstayed their visas for at least 6 months. The penalty was that these people could not get their papers here but must travel back to their home countries to do so. However, as soon as they set foot outside the U.S., they are subjected to these bars when they try to apply legally to return to the U.S. within 3 or 10 years.

With that in mind, it was quite nice that a reader of this blog recently commented and shared her experience with the 10-year bar. Her story was quite sobering, and we thought it has a little bit of everything that we’ve been blogging about, so we wanted to share it with you to show how this bar could wreak havoc on people’s dreams of living in the U.S. We’ve edited some of the original language to make it easier to read:

OK, this lady had an I-130 petition filed for her by her green-card holder husband in 1997, then went to the Immigration Office to try to apply for an employment authorization document (EAD, or work permit) and got caught. Why? Doesn’t having an approved I-130 entitle you to a work permit?

The answer is most of the times no, not at all. When the husband filed the I-130 in 1997 for her, that placed her into the F2A category of spouses and children of green-card holders. At that time in 1997, people in that category had to wait something like 4 years for a visa number to be available. However, as we’ve shown elsewhere, without a visa number available, one cannot get a work permit. So, in 1998, when she went to the local Immigration office to inquire (and most likely apply) for the work permit, she was not entitled to one yet. At that time, we know she was out of status because it had been 4 years since she came to the U.S. on the tourist visa (in July 1994) and no tourist visa lasts 4 years. The act of going to the Immigration office made them aware of her presence in this country as being out-of-status. Therefore, they detained and released her but ordered her to appear in front of a judge in removal proceedings!

This shows that people who are out-of-status in the U.S. should proceed extremely carefully when trying to apply for something with Immigration here without consulting a lawyer. The lady here presumably did not do so, or got bad advice that she could qualify for a work permit, and made the mistake of applying for it. That’s how Immigration discovered that she had overstayed her tourist visa by 3 or 4 years.

What about the husband becoming a citizen, wasn’t that supposed to help her? Well, no, not unless he was approved for naturalization and was sworn in on time. In removal proceedings, the judge only gives the alien a couple of continuances at most, a good lawyer could get even more. If, after the continuances, the alien still does not have any form of relief available, then the judge cannot keep delaying the case and either will order removal or allow the alien the privilege of voluntary departure. Voluntary departure allows the person to leave the U.S. cleanly without having a removal or deportation against them on their records, and the maximum time given is 120 days to leave. IF the husband had been sworn in as a citizen in time while the lady was still in removal proceedings, then she would have converted from the F2A category to the immediate relative category, and a visa number would have been immediately available to her. Then she could have applied to the judge for her green card without having to leave the U.S.!

But, unfortunately, as she stated, “I was waiting for my husband’s swear in coz he had his citizenship interview. Since it did not take place in time, I had to leave USA on 30th December 1998.” So, because her husband did not become a citizen quickly enough, she indeed had to leave the U.S. within the 120-day period granted by the judge.

Her story then continues:

So, back in Malaysia, after her husband had become a U.S. citizen, a visa number immediately became available for her. She naturally then tried to apply for the immigrant visa to return permanently to the U.S. She first was denied her visa due to the consulate’s finding that she overstayed previously by about 4 years on her prior tourist visa. Then, she filed the I-601 to try to apply for the extreme hardship waiver. However, this was also denied. Because of this, she could not get back to the U.S. legally, and had to wait 10 years from the date she left the U.S. before she could apply again! How could this happen, you might ask, since she got voluntary departure?

Well, voluntary departure at least prevented a removal order from being on her records, which would have been worse. However, the truth of the matter is that, receiving a grant of voluntary departure while in removal proceedings in court did nothing to erase the more than one year of unlawful presence that she had accumulated in the U.S. before starting her court proceedings. Thus, she became subjected to the 10-year bar as soon as she stepped foot outside the U.S. That’s how strict this bar is. The timing was particularly unlucky because not long after she left the U.S. on December 30, 1998, her husband became a citizen, and she became qualified for a visa to return to the U.S. But, unfortunately, at the consulate interview in Malaysia, the bar was invoked against her, as you can see, and so she had to wait 10 long years until December 30, 2008 to reapply.

Note: Some people are under the mistaken impression that this 10-year bar is only applicable if there was a removal (deportation) order against them. Not true! This 10-year penalty for being unlawfully present in the U.S. at least one year (either by overstaying one’s visa that long or being here illegally when one has no visa) kicks in no matter how one departs the U.S., even if it is voluntarily!

In any event, this lady’s heartfelt story above shows that there are real immigrants out there everyday who simply cannot “get their papers” here, but must return to their countries to do so. And, when they do that, they may be stuck in their countries for 10 years before being allowed to return, as happened with this lady. Having paid her dues, she is now in the process of reapplying again through her citizen husband, and should get approved easily this time since the 10 years have already passed with her being outside the United States. This is a real story. It is a story multiplied by thousands of times. For the sake of unification of families, let us hope that Congress will remove these bars from the law as soon as possible.

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Top 10 Reasons Why Immigrants Get Visas Denied

Posted in Grounds of Inadmissibility, Lawful Permanent Residence with tags Consulate Processing, Extreme Hardship, Unlawful Presence Bar (3- or 10-yr Bar) on September 14, 2009 by Guru Immigration

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We thought it would be fascinating and instructive to analyze and compile a list of why people were denied their visa applications in trying to immigrate to the U.S. An immigrant with one of these reasons potentially lurking in the background could try to gauge their chances of success to some extent using this list.

Only 2008 statistics are included in the list. Also, it only includes people who tried to apply for immigrant visas last year, that is, to immigrate permanently to the U.S. In legalese, these reasons for denial are known as “grounds of inadmissibility” or “inadmissible grounds.” These grounds come into play at the last step of the immigration process: at the consulate interview in the immigrant’s home country, or at the USCIS office interview here in the U.S. before the immigrant receives permanent residence (green card). This is after all the years of waiting for the visa priority date to be current, after all the facts of the relationship have been proved to be true between the petitioner and beneficiary, after all the forms appear to have been correct….but then these grounds appear suddenly like thieves in the night to derail the immigrant visa application.

For each inadmissible ground, along with our comments, the list includes the total number of people denied last year, as well as the percentage who were denied. In other words, out of the total number of applicants faced with a certain ground of inadmissibility, such as for example, criminal convictions, some percentage of applicants was ultimately approved for their visas because they managed to receive some type of waiver.

The list is ranked by the total number of applicants denied, from the smallest to the largest. So, let’s begin…

No. 10 – Crime involving moral turpitude (CIMT)

Persons denied: 994 Denial rate: 83%

The bad CIMT. In immigration work, we lawyers hate to hear this acronym mentioned because it means the client’s case will be a hard case! A crime, such as DUI (driving under the influence) will not involve moral turpitude because it does not involve “baseness” or a “bad heart,” which is a rough definition of “moral turpitude.” But DUI with death or injury involved may involve moral turpitude, depending on the local DUI law involved and if there was at least recklessness on the part of the driver in causing the death or injury. Of course, it goes without saying that more serious crimes such as fraud, theft, rape, murder, and so forth are CIMTs. A conviction for a CIMT in an applicant’s past will make them inadmissible to the U.S. although a waiver is possible. However, the 83% denial rate shows that the waiver will be quite difficult to get.

No. 9 – Smugglers

Persons denied: 1,018 Denial rate: 92%

Just to be clear, this refers to alien smuggling, not contraband. And yes, there is a waiver available if the alien being smuggled was someone in the immigrant’s immediate family. The term “smuggling” makes it seem as though the immigrant committed a very serious act, but actually, it includes acts such as “encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” So, it’s not only hiding another person in the trunk of a car that can make you guilty of alien smuggling! Regardless, the 92% denial rate shows that U.S. immigration authorities strongly frown upon this.

No. 8 – Ordered removed upon arrival

Persons denied: 1,208 Denial rate: 84%

When a person arrives in the U.S. and is seeking admission at the airport or at the border, but because of certain ineligibilities is placed into removal proceedings and then ordered removed, they will be barred from being readmitted to the U.S. for 5 years. Yet last year there were more than 1,400 immigrants under this bar who tried to immigrate back to the U.S. sooner than 5 years, and as can be seen, 84% were denied. The 16% who overcame this bar presumably sought and received permission ahead of time from U.S. immigration authorities, while in their home countries, to apply for a visa before the 5-year period had expired. This group includes those who were ordered removed multiple times upon arrival (20-year bar) and those who were aggravated felons at the time of the removal upon arrival at U.S. shores (permanent bar).

No. 7 – Public charge

Persons denied: 1,664 Denial rate: 24%

A public charge is someone who cannot support themselves in the U.S. but must resort to the government to support them. Such a person cannot immigrate to the U.S. As can be seen, however, this reason for denial is the easiest to overcome with more than 3 out of 4 immigrants able to correct the problem when they were told by the consulate that there was a problem. In reality, the immigrant’s petitioner had to sign the Affidavit of Support form ahead of time to agree they would pledge their income and assets to support the immigrant. Even if the income is not enough, a joint sponsor’s income can be used to help out. Thus, it is quite easy to overcome the ground of being a public charge and for the immigrant visa to be approved as a result.

No. 6 – Drug abuser or addict

Persons denied: 2,457 Denial rate: 100%

Some things are just self-evident. The 100% denial rate for this is not a surprise. What is surprising is how many people actually tried to apply even though they were drug abusers or addicts.

No. 5 – Unlawfully present after previous immigration violations

Persons denied: 4,267 Denial rate: 100%

This category is an extremely harsh category to be caught under. It consists of immigrants who had been unlawfully present in prior times in the U.S. for a total period of more than 1 year, or who were ordered removed or deported, but then entered or tried to enter the U.S. illegally. At their consulate visa interview, when this negative immigration history is discovered, such a person cannot be admitted to the U.S. It’s a lifetime bar! However, the person could wait 10 years outside the U.S. then apply to immigration authorities for permission to reapply for admission to the U.S.

The 100% denial in this category, however, probably means that all or most of the applicants faced with this bar did not wait the required 10 years to apply for the permission above, and so simply could not be approved no matter what.

No. 4 – Misrepresentation

Persons denied: 4,765 Denial rate: 79%

This is the “When you lie, you fry” category. These were immigrants who had their visas denied due to being caught committing fraud or misrepresenting (lying) some fact in order to obtain the visa or even any previous visa or admission document. The relatively high denial rate shows that U.S. immigration authorities do not have a high tolerance for immigrants not being truthful on their applications. Still, 21% of them ended up overcoming this due to a waiver being available. The waiver is to show extreme hardship to a spouse, child or parent who is a U.S. citizen or legal permanent resident and thus, is quite similar to the waiver used for the very common 10-year bar, which is the next category.

No. 3 – Unlawfully present 365 days or more

Persons denied: 13,977 Denial rate: 46%

As can be observed, the total number of immigrants denied last year under this No. 3 category was almost 14,000 people, compared to only 4,765 denied under the previous category (misrepresentation). So, we have a huge jump going only from No. 4 to No. 3. This category is very common because, as we discussed it in detail in our other article, “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?”, so many immigrants have formerly accumulated unlawful or illegal presence in the U.S. of 365 days or more, that when they leave to try to apply for their permanent visa at the U.S. consulate in their country, they are confronted with the 10-year bar. And, as was shown in that article, this bar does have an extreme hardship waiver available for it, which surprisingly, had only a 46% denial rate last year, or more than half approval rate!

However, a lower percentage rate of denial does not necessarily mean that this waiver is easy to get. Obviously the statistics used to construct this list does not, and indeed, cannot tell us how many people who knew ahead of time they would be denied and did not bother to apply. For example, someone with a weak case might have obtained legal advice ahead of time from their immigration lawyer that applying for a visa would be a waste of time even if there is a waiver available in the law. Thus, it may be that for certain waivers such as this one, there were more applicants with stronger cases to begin with anyway, thus biasing the rate of success more toward approval. To obtain approval of this waiver, the immigrant has to leave behind their family in the U.S. and travel back to their home country and apply at the U.S. consulate. If the waiver is denied, which is almost half the time, they are stuck in their country unable to return to their family. Thus, we believe in looking at the statistics that probably only people who felt more confidently ahead of time that they have a strong hardship case would take this risk.

No. 2 – Labor certification

Persons denied: 17,561 Denial rate: 97%

A less well-known way of immigrating to the U.S. is through an employer petition. A U.S. employer can petition for an immigrant worker to take a permanent job position in the U.S. In order to qualify, however, the employer must file a labor certification application with the U.S. Department of Labor to certify that there are no willing, able, and qualified U.S. workers for the job position. Only if this labor certification is certified will the immigrant worker be approved a visa to immigrate. However, at the consulate interview, there are many reasons why the worker may be denied a visa, such as when the consulate officer believes the worker does not truly intend to work for the employer, or fraud in obtaining the labor certification, etc. This ground of denial is almost impossible to overcome as seen in the almost 100% rate of denial.

Finally, we come to the TOP REASON FOR VISA DENIAL, which is…:

No.1 – Application does not comply with provisions of law or regulations!

Persons denied: 87,843 Denial rate: 34.1%

Amazingly, for something that is #1, it is not a fancy reason to deny a visa! The Department of State does not break out in fine details what these consisted of, but they have to do with reasons such as the applicant not being eligible for the visa being sought, filing requirements not met, lack of required evidence, missing forms, missing information, etc. Pretty mundane reasons actually. That said, this category seems to also be a catch-all category containing reasons for denial that do not fit neatly into any of the main categories laid out in the Immigration and Nationality Act (INA).

This reason for denial (legally, section 221(g) of the INA) is relatively easy to overcome. This is understandable if the denial has to do with deficient application forms or missing evidence since those can be easily fixed by the applicant. A HUGE number of applicants were told initially they were in this category last year, more than 257,000, which easily dwarfs all the other nine categories combined. The lesson here is, make sure you are eligible for the visa ahead of time and your applications and documents in tip-top shape! Hiring a good immigration lawyer is obviously a good start toward this end.

So, those are the top 10 reasons for denial in terms of number. In terms of percentage, the ranking goes like this from the most difficult to overcome to the easiest:

1. Unlawfully present after previous immigration violations – 100% denial
2. Drug abuser or addict – 100%
3. Labor certification – 97%
4. Smugglers – 92%
5. Ordered removed upon arrival – 84%
6. Crime involving moral turpitude (CIMT) – 83%
7. Misrepresentation – 79%
8. Unlawfully present 365 days or more (10-year bar) – 46%
9. Application does not comply with provisions of law or regulations – 34.1%
10. Public charge – 24%

We hope you will never face any of these reasons for denial in your quest to immigrate to the U.S.!

40 Comments »

I-130 Approval Is Not Green Card!

Posted in Lawful Permanent Residence with tags Adjustment of Status, Consulate Processing, I-130, Immediate Relative on August 30, 2009 by Guru Immigration

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The I-130 Petition for Alien Relative is probably the most common immigration form filed by people in the U.S. immigration system. A lot of people contact us right after the I-130 petition has just been approved. They’ve been waiting for years and happy. They want to know what they can do to claim their green cards right there and then!

Sorry, we have to tell them. The I-130 approval is a necessary first step for immigrants but does not necessarily entitle them to a green card right away, except for “immediate relatives.” The purpose of the I-130 petition is simply to classify the immigrant as a close relative of the person filing the form to put them into one of the recognized categories of U.S. immigration law. So, when U.S. Citizenship & Immigration Services (USCIS) approves the I-130, it is simply saying in effect: “OK, we find this immigrant is indeed your spouse/son/daughter/sibling as you claim.” That’s all. They’re not saying the immigrant got the green card. Not yet.

Family-Preference Categories

The five family-preference, or relative, categories are:

F1: unmarried sons and daughters 21 and over of U.S. citizens
F2A: spouses and children under 21 of legal permanent residents (green-card holders)
F2B: unmarried sons and daughters 21 and over of legal permanent residents
F3: married sons and daughters 21 and over of U.S. citizens
F4: brothers and sisters of U.S. citizens

In the above, “F” just stands for “Family.” The U.S. citizen or permanent resident filing the I-130 for his or her relative will be referred to as the “petitioner” and the relative(s) will be referred to as “beneficiary” or “beneficiaries.” From the categories listed above, yes, of course you are probably wondering, “What about spouses and children under 21 of U.S. citizens, shouldn’t they be listed somewhere?” The answer is, yes, but not in the five categories above. They are part of a separate and special category called “immediate relatives” that was mentioned. Whereas, the relatives in the categories above are in the “family-preference categories.” F1 has the highest preference and F4 has the lowest preference. Meaning there are generally more visas allocated each year to the higher preferences although every category has a limited number of visas allocated to it each year. Obviously, the F4 category is the slowest category because it has the lowest priority, i.e., the least number of visas available each year for it. Waits of 10 years or more is normal for F4.

Long Waits for I-130 Approval and for Visa Numbers

The problem is that an I-130 filed for a relative in one of these preference categories usually takes years just to be approved. Let’s call this Stage 1: from the time of filing the I-130 until its approval. For example, it’s currently taking over 5 years until approval for an I-130 in the F1 category at the California Service Center (CSC), and 3 years until approval at Vermont Service Center (VSC). For brothers and sisters, or F4 category, it’s currently taking 9 1/2 years until I-130 approval at CSC and about 2 1/2 years at VSC. These are average processing times reported on the USCIS website; your own petition may be longer or faster. You would think it’s normally not too difficult to prove that someone is your child or sibling, and you would be correct, since usually USCIS only asks to see birth certificates (except for marriage cases because of the prevalence of fraud). Yet, they can take that long to get through Stage 1! It is thus not surprising that when they receive the I-130 approval notice from USCIS, the beneficiary and their petitioner feel such happiness that they believe the beneficiary’s green card has been approved or will be soon.

The truth is that, after getting through Stage 1, most of the times the beneficiary still has to endure another wait, sometimes very long. That wait is for a visa number to become available. Let’s call this Stage 2: from I-130 approval until a visa number is available. As mentioned, there are limited number of visas available each year in each category. It’s first-come first-served, so whoever got the I-130 filed for them first will be in line ahead of another person who was petitioned for at a later date. The date that USCIS receives the I-130 is called the “priority date.” This is the date that determines if there is a visa number in your category.

The U.S. Department of State publishes the Visa Bulletin each month which you can use to check what priority dates are current in your category. Once there, click on the link for the current month (or latest month). For example, the December 2009 Visa Bulletin, under the F2A category, shows the cut-off date of “01NOV05″ for beneficiaries who are citizens of most countries (that is, not India, China, Mexico, or Philippines, who have their own columns in the Visa Bulletin table — Mexico and Philippines are notoriously slow since there is so much demand for visa numbers from those two countries). This means that currently, only I-130 petitions filed for a spouse or child of a legal permanent resident before November 1, 2005 have visa numbers available for most countries. For the month before, the November 2009 Visa Bulletin shows the F2A cut-off date was “15AUG05.” So in this category at least, the priority dates moved by 2 1/2 months in a month of real time, which is actually pretty good since usually they move one month of priority dates, or less, per month in real time.

Example: As an example of the Stage 2 wait for visa number after the I-130 has been approved, let’s say you’re a U.S. citizen petitioning now for your unmarried daughter over 21 (F1 category) from Mexico, so the priority date is in November 2009. Currently, for the December 2009 Visa Bulletin, visa numbers are available in the F1 category for those Mexicans with I-130s filed on or before August 1, 1992 (more than 17 years ago). So, even after the I-130 has been approved, which took about 5 years for F1 as seen above at California Service Center, your daughter still has to wait for about another 12 years before a visa number is available for her to immigrate. Or, let’s say you’re a U.S. citizen petitioning for your brother now from the Philippines. Looking at the same Bulletin, visa numbers are currently available in the F4 category for those Filipinos with I-130s filed on or before March 22, 1987 (more than 22 years ago!). So, even after the I-130 has been approved, which took about 9 1/2 years for F4 at CSC, your brother still has to wait about 12 or 13 more years for a visa number, or to get through Stage 2.

Looking up the Visa Bulletin can only give an estimate as to when a visa number will become available. It is impossible to give a precise answer as to how fast each category will move in the future, especially if your priority date is several years behind. For some months, the visa numbers can move very fast, but then they will slow down, barely moving at all. All one can say is, for example, right now, the December 2009 Visa Bulletin shows that in the F3 category (married sons and daughters of U.S. citizens), the priority cut-off date is “22MAY01″ for most countries, which means only those F3 petitions filed prior to May 22, 2001 have visa numbers, for beneficiaries of most countries. If your priority date is in 2007, for example, then it may take six years, more or less, until there is a visa number available for you.

Note: Sometimes, USCIS takes so long to approve the I-130 due to whatever glitches or problems in the particular case that Stage 1 becomes much longer than it should, so that once the I-130 is approved, the Stage 2 wait for a visa number can be relatively short. In even rarer cases, on the date that a visa number becomes available for the beneficiary’s particular priority date, the I-130 is not even approved yet! That is, Stage 2 and Stage 1 are effectively reversed. In that case, the beneficiary still has to wait until the I-130 is finally approved before they could proceed to Stage 3.

Note: Sorry, but we cannot answer for free questions of the type, “I’m in so-and-so category, with I-130 petition filed on so-and-so date. How long do you think I have to wait?” This blog article was originally written to show people how to use the Visa Bulletin to look the information up themselves and to estimate how long the wait might be in their own cases. Hundreds of people have asked this question on the blog or emailed us when they can do this themselves. It is quite easy to do. As mentioned, using the Visa Bulletin will give you only an estimate of the wait. No one can predict precisely how quickly visa numbers will move in the next few years. Not even USCIS or us lawyers can tell you for sure.

No Benefits While Waiting for Visa Numbers to Be Available: During the wait until a visa number is available, or in Stage 2, the fact that a beneficiary has an I-130 filed for them does not mean that they get any immigration benefit because of that I-130. The same thing during Stage 1. If the person is here in the U.S. in unlawful status, they must take care not to be picked up by USCIS and put into removal (deportation) proceedings.

Also, people ask us this all the time but with only an approved I-130, the person does not get a temporary work permit if a visa number is not yet available. Neither will they get a driver’s license since the DMV will not issue a license unless the person has work authorization in the U.S. or proof of legal status. In other words, if you’re here illegally or you’re out-of-status on your visa, the I-130 by itself does not do anything to make you legal. This is just a false hope. It’s amazing how many of our clients were duped by notarios, non-lawyers, and even bad lawyers who told them otherwise about what the I-130 could do for them.

For example, some immigrants are under the mistaken impression (or given bad advice) that despite the long waits for visa numbers above, as soon as they have an I-130 filed for them and received by USCIS, or receive news of the I-130′s approval, that they can start filing for their green card or to be legal at that moment. There is no such thing. Be careful: filing such application or paperwork too early will, at best, leads to rejection of the application and loss of filing fees, and at worst, may result in removal proceedings if the immigrant is out-of-status or illegal in this country. Unless the immigrant is an immediate relative, there is no shortcut or going around Stage 2 before the next step for the green card can be taken.

What Happens Once Visa Numbers Are Available

However, after the wait when the priority date is finally “current,” meaning that a visa number is finally available, the beneficiary at that point can proceed to the final Stage 3: actually applying for permanent residence or green card status. This stage has three different alternatives, depending on what kind of relative the beneficiary is, how they entered the U.S. or if they’re outside the U.S, and if they’ve been out-of-status/illegal while in the U.S. or not:

a. If they came to the U.S. originally with a visa or were inspected, are not an immediate relative, AND have not been out-of-status, they can file for adjustment of status in this country, just like the “easy” boyfriend or girlfriend scenario described in “It’s Easy for Me to get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend, Right?”

b. If they came illegally (whether an immediate relative or not) or have been out-of-status in the U.S. (and not an immediate relative), then they must go back to their country and apply at the U.S. consulate, with the 3- or 10-year bar being an obstacle (except for those out-of-status/illegal for 180 days or less, or those who had an old petition filed by April 30, 2001), a difficult situation just like the boyfriend or girlfriend that was described in “I’m Illegal, I Can Still Get a Green Card by Marrying My U.S. Citizen Boyfriend or Girlfriend?”

c. On the other hand, if the beneficiary is outside the U.S., they will file the immigrant visa package with the U.S. consulate in their country, submit police background and medical checks, among other documents, and then be interviewed at the consulate to receive the immigrant visa (unless if they had spent more than 180 days illegally/out-of-status in the U.S. on a prior stay). With the immigrant visa in hand, they can be admitted to the U.S. as a legal permanent resident.

A very important benefit for these family-preference categories is that the spouse and children under 21 of the main beneficiary are also entitled to immigrate at the same time, and in the same order of priority as him or her when a visa number is available. This is not the case if the main beneficiary is an immediate relative, however: a separate I-130 petition will also be required for the main beneficiary’s child under 21 (the petitioner’s stepchild).

Good to Be Immediate Relatives

The exception or shortcut to all the long waiting described above is the category of “immediate relatives” mentioned. This is composed of three subcategories: (1) spouses of U.S. citizens, (2) children under 21 of U.S. citizens, and (3) parents of U.S. citizens when the citizen is at least 21. There are always visa numbers available for these people in unlimited numbers. So, they are highly preferred, or favored, in the U.S. immigration system, much more preferred than those in the five “family-preference categories” above. That is why you see so many people who came in originally with visas try to marry a U.S. citizen, whether the marriage is real or not, since they want to be classified as an immediate relative and bypass the long wait. For an immediate relative, on the date the I-130 is filed, they can skip Stages 1 and 2 and go directly to Stage 3 if they qualify for adjustment of status in the U.S. to green card. If they’re outside the U.S., only Stage 1 (filing of I-130 until approval) has to be waited for, Stage 2 would be zero.

The other major advantage for an immediate relative is that if they entered the U.S. legally with a visa, any unlawful presence or time out-of-status since then is waived, or forgiven, as long as they have remained in the U.S. since entry and have not made a trip overseas, i.e., they will still be allowed to adjust status to green card without being forced to do so overseas. That is why you see many parents who came with visas and have kids born here wait many years even while the parents are out-of-status until the kids turn 21. Another advantage for an immediate relative is that both the I-130 petition and the adjustment application are allowed to be filed concurrently, i.e., filed at the same time. Compare that with immigrants in the family-preference categories who must first wait for an I-130 to be approved (go through Stage 1), which could take years as described above, then wait for Stage 2 to complete, and finally proceed to Stage 3 for the adjustment application to green card.

So, to sum it up, if you are someone interested in immigrating to the U.S. and you are not an immediate relative, having a U.S. citizen or legal resident relative file the I-130 for you, despite the long wait for visa numbers, is still good future planning because it reserves your place in the line. We can assist you with filing the I-130 since approval can sometimes be difficult.

384 Comments »

Can I Be Deported When I’m Not Even There in Court?

Posted in Uncategorized on August 25, 2009 by Guru Immigration

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Dear Guru,

after my 130 and 485 was denied, i left the usa. that was last year. unfortunately, last week, my parents told me that i have received a ”notice to appear.” at their usa mailind address. I read online that I would be deported ”in absentia” by the Immigration Judge. what should i do please?

——————
Answer: Deported in absentia (now called ‘removal in absentia’ just means you can be deported in your absence. But, you cannot be ordered deported if you have already left the US. An attorney would need to appear in court for you at the hearing set on the Notice to Appear, with proof of your non-presence in US, and move to dismiss. It’s important that you do so or else you will have a removal (deportation) on your record for at least 10 years.

If the Immigration Court is in Southern California, contact our office and we can represent you.

Best

12 Comments »

Boyfriend got DUI hit-and-run and now deported

Posted in Uncategorized on August 20, 2009 by Guru Immigration

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[Note: The following paid consultation question is taken from the Guru's past client files.]

Today we have a very interesting question from a young woman that illustrates that sometimes, loved ones and close friends are very concerned for the immigrant and want to help, but unfortunately are prevented from doing anything under the law.

By the way, these questions are unedited without fixes as to spelling or grammatical errors.

So, here goes.

Dear Guru,

My boyfriend (we lived together but weren’t married) got a DUI, hit and run he was in jail
and got sent to Mexico on early January but not deported and he had a court date for early April. When he was trying to cross the border to come back in March 19 he was caught by the border patrol and they deported him for 5 years. He got send to Mexico when we had just had our first baby he was a week old. is there anything i can do? Can I apply to get him a legal residence card? I’m a legal resident. if i can howmuch would it cost? would i need to go get married?
THANK YOU for all your help

———————————–
Answer:

Probably nothing can be done for years. First, boyfriends and girlfriends cannot do anything for each other. So, you would have to get married to him first. Second, lawyers who answer need to tell you upfront that with only a green card (i.e, you’re a legal permanent resident, not a US citizen), even if the deportation could be waived for your husband (when he becomes your husband), and you apply for him today as the spouse of a legal resident, he is stuck in Mexico until a visa number is available for a spouse of a legal resident. And when will that be? Well, currently they’re running about 4 years behind for Mexicans in that category. See “What to Look for When Your Green-Card Holder Helps You Immigrate.”

If you apply for citizenship (at least 5 years after obtaining green card), then the wait won’t be 4 years. But, the waiver of deportation will be pretty difficult to get approved, especially since he has repeated illegal entries to the US AND he has a DUI hit-and-run on his records, which is very bad.

Few cases are impossible, but this is a pretty difficult case. Cases like this can sometimes be successful, but it will cost you a LOT of money in attorney’s fees because so many resources have to be thrown at it. And, frankly, in this economy, a lot of people are not willing to spend that money.

Best.

5 Comments »

Guru Immigration Law Blog

How Do I Get a Work Permit?

Who Can Adjust Their Status to Green Card Here?

Is the 10-Year Bar for Real and Could It Stop Me from Getting My Green Card?

Top 10 Reasons Why Immigrants Get Visas Denied

I-130 Approval Is Not Green Card!

Can I Be Deported When I’m Not Even There in Court?

Boyfriend got DUI hit-and-run and now deported

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