Frequently Asked Questions: Immigration

 

  1. Why should I hire an immigration attorney? Can’t I fill out the forms myself?

Immigration laws are complex and determining your eligibility for immigration benefits needs to be determined by a licensed professional. Each case presents a unique set of facts that an attorney needs to analyze to advise you on your options and the best legal strategy.

We have heard from many clients that they received certain advice from the customer service agents from USCIS- too often the information was incorrect! If you rely on that information and there is a problem with your petition, USCIS will not correct the mistake based on their mistake.

Even if you believe your case is an “easy” one, an experienced immigration attorney will make you feel confident and supported through each step of the way. It gives our clients great comfort knowing that their forms were accurately completed and the correct evidence was included in the package. They feel confident that if a problem should arise, they have a professional to help guide them through the process.

  1. I want my relative here now, how long does the immigration process normally take?

While USCIS has available online processing times, it is important to understand that each case is unique and it may take less or more time for USCIS to approve your petition. If you do not carefully complete the required forms and send the right documentation, USCIS may send you a Request for Evidence (“RFE”) that could delay your relative’s arrival to the United States. In some rare circumstances, USCIS may send more than one RFE on your case.

Working with the U.S. Embassy or Consulate in the country where your relative lives may also present challenges. Each embassy and consulate is responsible for its own scheduling- many are closed for both U.S. holidays and those of its host country. Civil unrest may close a location temporarily or permanently; in which case you would have to request a transfer to another country for the visa interview.

If you have hired an experienced attorney, you can feel confident that the process will be quicker and less stressful. With accurate information and the correct supporting documentation, you can avoid the delays of RFEs and if there is a problem with the embassy or consulate, your attorney will address the situation to help resolve things.

USCIS Processing Times:

https://egov.uscis.gov/cris/processTimesDisplay.do

  1. I’m worried that I don’t make enough money to sponsor my relative- how much money do I need to make?

As a petitioner (sponsor), you are required to make a minimum income requirement, which is 125% above the Department of Health and Human Services (HHS) poverty guidelines. The most current guidelines can easily be accessed from the USCIS website or calling 1-800-375-5283.

For example, a petitioner with a wife and two children must have a yearly salary of at least $34,462. Not only does USCIS consider all the household members, but you must also include the intending immigrant (your relative) in your calculation. This is because you are promising the government that you will sponsor the immigrant.

If you have declared any individuals as dependents on your federal tax return, you must include them in your total household income. You must also count all of your children who are under the age of 21 and unmarried, even if they do not live with you. Children can only be excluded if they have reached the age of majority where they reside and if you do not claim them as dependents on your income tax returns.

  1. I’ve heard that I need a medical examination done- why? Can I go to any doctor for the exam? Will I have to get more vaccinations?

A medical examination is required because individuals with specific communicable diseases are not able to immigrate to the United States.   Examples of such diseases include Chancroid; Gonorrhea; Granuloma inguinale; Leprosy; Syphilis and Tuberculosis. Those with Human Immunodeficiency Virus (HIV) do not have to apply for a waiver, as the disease was removed from the CDC’s list of Communicable Diseases of Public Health Significance.

You may not go to your regular provider for the examination- a list of approved civil surgeons can be found at www.uscis.gov. You can type in your postal code and a list of approved doctors in your area will be generated.

You should request a list of vaccinations that you have received from your previous medical provider. Take the list to your scheduled appointment and you may be able to avoid getting more vaccinations during your appointment.

  1. Why shouldn’t I work with a notario when I can pay a lot less money for their services?

You should not hire anyone to help you complete your petition/application is who is not a licensed attorney or accredited representative. A public notary or “notario” is not an attorney- they do not have legal education and are not licensed to be practicing law. While in many countries a public notary may have gone to school and received special training, there are no such requirements in the U.S. to be a public notary. Furthermore, someone who practiced law in a foreign country cannot work in the U.S. as an attorney (unless they obtain a license here).

Although working with a public notary or notario may seem like a less expensive option in the end, it may end up costing you much more money, as you often have to hire an attorney to fix mistakes they made.

  1. Currently I am in a relationship with a same-sex partner, I heard that we can apply for immigration benefits if we are married, but we live in Virginia- do we need to move to a state that allows for same-sex marriages to apply for immigration benefits?

No, under the Immigration and Nationality Act, DHS will evaluate the validity of a marriage based on the place of celebration; “the validity of a marriage is determined by the law of the State where the marriage was celebrated.” Matter of Lovo-Lara, 23 I&N Dec. 746, 753 (BIA 2005). Same-sex couples only need to marry in a state that allows same-sex marriages, not relocate to that particular state. Couples are encouraged, however, to check residency and other requirements when applying for a marriage license.

Virginia residents who have a same-sex partner may marry in either neighboring jurisdiction of Maryland or the District of Columbia and proceed with filing for immigration benefits.

  1. I have frequently travelled to the United States, but upon my last entry, I noticed that Customs and Boarder Protection (“CBP”) did not put the I-94 form in my passport- why not? How do I know the length of my permitted stay?

CBP has implemented a new program whereby it will no longer issue visitors paper I-94 cards upon their arrival to airports or other ports-of-entry.   Upon entry, your passport will be stamped by CBP; the stamp will reflect the date of admission, type of admission, and admitted until date. If you need a copy of your Form I-94, you can go to the website: www.cbp.gov/I94 to verify that the information on the form is correct and to retrieve a copy of your electronic Form I-94.

You do not have to do anything different when you depart the United States at the end of your stay. Your departure will be recorded electronically with manifest information provided by the commercial carrier or by CBP.

  1. I am a DACA recipient and I want to travel outside the United States- am I allowed to do so? What forms do I have to complete? How much will it cost? What if I just want to take a vacation abroad?

As a DACA recipient, you are able to travel for humanitarian, employment and educational purposes. Some examples include travelling to see a sick family member, attending funeral services of a family member, or other urgent family related matters. If your job wants you to take an overseas project or training, you also may be able to travel.

Before your departure, you need to apply for Advance Parole, by submitting Form I-131 to USCIS along with a $360 filing fee. Your application should include proof of your DACA status, details about the trip, and evidence to support the reason for travel. If your application is approved, you will receive an Authorization for Parole of Alien into the United States form (I-512L). This document must be shown to an inspecting offer upon your return to the United States.

It is important, however, that you understand that approval of your application does NOT guarantee your admission into the United States. The inspecting officer may find other grounds to keep you from entering (such as criminal grounds, unlawful presence bar, or immigration fraud). It is important that you speak with an experienced immigration attorney before you leave the country.

USCIS will not approve your application if the reason for your travel is for a vacation. The Frequently Asked Questions for DACA recipients on the USCIS webpage clearly establishes that travel abroad for the purposes of a vacation is NOT a valid reason for Advance Parole.

  1. I am undocumented, but frequently drive without having my license. How can driving without a license lead to deportation?

Currently, only eight states have passed laws granting the issuance of a driver’s license to any person; regardless of whether he or she can provide evidence of legal status in the United States. Those states include Illinois, Oregon, Maryland, Colorado, Nevada, Vermont, Connecticut and most recently California. A similar law is expected to pass in the District of Columbia very soon.

Driving without a license for an undocumented individual can be very dangerous and can result in deportation. Let’s say for example that a young man is on his way to work and he fails to use his turn signal or is follow another car too closely. An officer pulls him over and asks to see his driver’s license. If the driver can offer no identification, under Virginia law, the officer cannot write a summons and must take the driver to jail, even if it is a first offense. The young man is then booked in jail and Immigration & Customs Enforcement (ICE) is notified if the jail participates in Secure Communities or the Criminal Alien Program. Once ICE is notified, the agency will initiate deportation proceedings and the young man will be deported if he does not have any way under the law to fight the deportation.

If the driver does have a form of identification, the driver is issued a summons and a court date. If it is a first offense, the driver’s information will probably not be reported to ICE. If it is a second or third offense, however, he will probably spend time in jail and then his information will be shared with ICE.

ICE revealed that about 28% of those deported under the Secure Communities program were not criminals and that in addition, 30% were deported for minor offenses; including traffic violations and other non-violent charges.

  1. A friend asked me to be a joint sponsor to help bring over his alien relative, if I agree; what is my responsibility and when does it terminate?

When you agree to be a joint sponsor to help a friend or family member bring their alien relative to the United States, you should be aware that you will be entering into a fully enforceable contract with the United States government. Upon signing the Affidavit of Support (I-864), you are promising the government that you will maintain the immigrant at an annual income of 125% of poverty level. You must reimburse the state and federal agencies that provide mean-tested benefits to immigrant. Many times the immigrant will be barred from receiving any assistance for five years, but if he or she does manage to receive assistance you will be liable.

As a joint sponsor your support terminates when: (1) the immigrant naturalizes, (2) the immigrant dies, (3) the immigrant abandons LPR status, (4) the immigrant is ordered remove and adjusts status, (5) sponsor/household member dies or (6) the immigrant acquires “40 qualifying quarters” with the Social Security Administration.

Keep in mind, however, that there is no obligation that the immigrant become a naturalized citizen of the United States or seek gainful employment. If the person you are considering sponsoring never seeks to become a U.S. citizen or does not work, your liability under the Affidavit of Support may not terminate unless one of the other above mention events occurs.

11. My friend/family member was picked up by ICE officers and is now detained.  How do I get him out of detention? 

Individuals who are detained by ICE may be eligible for immigration bond.  A motion for bond must be filed with the local immigration court for the court to set a bond hearing.  During the hearing, the judge will hear evidence and testimony to help her decide to grant immigration bond.  The judge will use his/her discretion to grant bond and the dollar amount.  The minimum amount is $1,500 but can increase if the detained individual has criminal convictions.  Many families work with bail bondsmen to help pay the bond.