Monday, August 27, 2012

Deferred Action for Childhood Arrivals (DREAMers)

The procedures for Deferred Action for Childhood Arrivals (DREAMers) who were brought in before age 16 are here. The requirements are:

You may request consideration of deferred action for childhood arrivals if you:

1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15, 2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Applications are made on Form I-821D, I-765 and I-765WS. The filing fee is $465.

Any applicant should be aware that you are bringing yourself to USCIS's attention. If USCIS decides that you do no qualify, then it is entirely possible that you will be placed in removal proceedings. USCIS promises that only those with criminal issues will be referred to ICE. But, that is only a policy, and can be changed, especially if there is a new administration.

I am happy to assist in completing the application, to enter my appearance with USCIS and to do reasonable follow-up for a fee of $500. If an interview is requested, there would be an additional attorney's fee of $500. If there is a need to respond to a Request for Evidence or a Notice of Intent to Deny, or a desire to file a Motion for Reconsideration, then I would charge my hourly rate of $250.

The procedures can be found at this website:

William J. Kovatch, Jr.
(703) 837-8832

Friday, August 17, 2012

Handling Consular Processing

When you are handling a consular processing case, it is often important to remember with whom you are dealing.  All people who join the US foreign service will do a rotation in the consular division.  That means that many of the people in the Consular Section are just "doing their time," until it is their turn to move into a policy position.  In many cases, the consular staff may not be as well trained as USCIS officers on the intricacies of immigration law.  Many of them will simply be looking to the Foreign Affairs Manual, and applying it as if it were law.

For an immigration attorney, that usually means being polite, and sometimes going with the flow.  For example, there may be complications in analyzing just how many co-sponsors are needed in a particular case.

All family-based immigrants need a sponsor.  That is, they need someone who will promise to be financially responsible for the immigrant to assure the US Government that the immigrant won't become a public charge (i.e. go on welfare).  The sponsor must make 125% of the poverty level for the size of the sponsor's family, plus the immigrant (100% poverty level if the petitioner/sponsor is in the military).  So, if the sponsor has a family of 4, and is sponsoring 1 immigrant, the sponsor's income must be above 125% of the poverty level for a family of 5.

The petitioner must always act as a sponsor.  But, if the petitioner's income is not enough to meet the requirement, the petitioner needs a co-sponsor.  The co-sponsor must also have a sufficient income to support his or her family, plus the immigrant at 125% of poverty level.

The complication for the Consular staff is analyzing the Affidavit of Support, which is the form the sponsor and co-sponsors use to show their willingness to be financially responsible.

When you have an immigrant who is coming in under the preference system, that immigrant may have derivative beneficiaries.  For example, if a permanent resident files a petition for a foreign spouse, and that foreign spouse has minor children, the minor children can immigrate as derivative beneficiaries of the foreign spouse.  In this situation, the sponsor files one form, and lists all of the derivative beneficiaries on the form.

When the immigrant is  the spouse of a US citizen, then the immigrant is considered an "immediate family member."  Immediate family members get their visas sooner, but cannot have derivative beneficiaries.  That means that if the foreign born spouse has minor children, the US citizen spouse has to file separate visa petitions for the foreign spouse and each of the minor children.  This also means that separate affidavits of support have to be filed for the foreign spouse and each minor child.

Consular staff do not always get this.  They see a family immigrating, and assume that the head of the family is the principal beneficiary, and each of the children are derivative beneficiaries.  So, they may expect one affidavit of support, with the children listed as derivative beneficiaries.

This is not the proper way of doing things.  With immediate relatives, each immigrant has a separate petition, and each should have a separate affidavit of support.

As an attorney, the first line of communication should be to try to explain this to the Consular staff.  But, you need to approach this with the understanding that the Consular staff may not be as well trained as you would like, and will likely stick to their guns, even if they are wrong.  Thus, you should have prepared the second line of communication.  Be ready to submit the forms the way the Consular staff is requesting, but with a polite explanation of why you think this is the wrong way to do it.  That way, you don't cause too much of  a delay in processing the visa, and getting the family members over to the United States as soon as possible.

This is another reason why it is important to have an attorney assist you in the Consular Processing stage.  Some of the rules are very esoteric, and having someone who understands immigration law and immigration law speak could help move things along much quicker.