This article from the Huffington Post makes a good point, and one I've been making since June. Deferred Action for young people, or DREAMERS, is not law. It is an exercise of discretion. As such, there is no guarantee that it would continue if a new administration is elected. In fact, those who are applying now should be aware that if there is a new administration, there is always the possibility that the program will be immediately terminated along with any employment authorizations issued under the program.
http://www.huffingtonpost.com/2012/08/16/deferred-action-romney-continuation_n_1790997.html
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Monday, September 10, 2012
Investor Visas Being Investigated
As this article points out, the Federal Government is investigating investor visas, or EB-5 visas. The whole idea is that a person can invest $1 million and employ 10 people, or $500,000 in a high unemployment or rural area and employ 5 people, and get permanent residency. I recognize that this tool exists, and would be happy to assist anyone who legitimately has that kind of money to invest in the United States.
Nonetheless, the visa does seem open to fraud. I know I had been approached by some who had an idea to create a scheme to allow people to apply for this visa. Smelling something rotten in Denmark, I told them that they could consult with another immigration lawyer.
So beware. Know that if you are applying for this kind of visa, that your application will be closely scrutinized.
As an aside, the article gets some of the legal facts wrong. To be clear, if the visa is granted, the person gets 2 years of conditional permanent residency. All that means is that the immigrant has to apply to lift conditions before the end of the two years, or the visa expires. This is much like the marriage visa when you have a very young marriage.
http://www.thedaily.com/article/2012/09/10/091012-news-investor-visa/
Nonetheless, the visa does seem open to fraud. I know I had been approached by some who had an idea to create a scheme to allow people to apply for this visa. Smelling something rotten in Denmark, I told them that they could consult with another immigration lawyer.
So beware. Know that if you are applying for this kind of visa, that your application will be closely scrutinized.
As an aside, the article gets some of the legal facts wrong. To be clear, if the visa is granted, the person gets 2 years of conditional permanent residency. All that means is that the immigrant has to apply to lift conditions before the end of the two years, or the visa expires. This is much like the marriage visa when you have a very young marriage.
http://www.thedaily.com/article/2012/09/10/091012-news-investor-visa/
Friday, September 7, 2012
Deferred Action: What About the Parents?
The President's new program promises deferred action and possibly work authorization for certain young people who are in the United States without legal immigration status. But, the program raises a question. What about the parents of the young people?
The deferred action program, also known as deferred action for Dreamers, applies to people brought into this country before age 16, who are under 31, and who have been in the United States for five years as of June 15, 2012. Certainly, among those who qualify will be minor children. If that is the case, can the Government ignore their parents?
To answer this, it is necessary too understand exactly what this program is. The deferred action program is not law. The DREAM Act has not been passed. The President has no power to grant legal status to the young people who qualify for this program. This is an exercise of discretion.
One way to think of it is to think of the police officer who observes illegal behavior on his beat. The police have the authority to arrest anyone they see who commits a crime. But, quite frankly, if the police were to do that, we would quickly run out of jail space. Well-trained police also know that sometimes, people break the law for stupid reasons, and they may not be dangerous criminals. So, the police exercise discretion. They do not always arrest every single law breaker they come across.
The same concept applies to the immigration system. Even though there are millions of people who are in violation of immigration law, the Government is not under a duty to enforce the law with respect to everyone. Quite frankly, if ever undocumented alien were detained and placed in removal/deportation proceedings, we would quickly run of resources. There are simply not enough immigration judges, ICE attorneys or detention facilities to enforce the immigration laws on every undocumented alien.
So, the Government has to choose against whom it will enforce the law. That is, it exercises discretion. Some cases are easy. Violent criminals, drug dealers and gang bangers are all top priorities for ICE, and well they should be. But, what about those people who came here simply to try for a better life, and to send money home to their families. Yes, technically they are breaking the law. But, if these are peaceful people, who do not break criminal laws, then ICE considers them low priorities.
There are also humanitarian reasons why the Government may not enforce the law. Think of the mother of a new born baby. If the baby was born in the United States, the baby is a U.S. citizen. In my experience, I have found ICE reluctant to institute removal proceedings against the mothers of newborn U.S. citizens.
These concepts all tie back to the current deferred action program. The President has established a set of criteria to identify people to whom he wants to exercise his discretion not to deport. But, this does not mean that this is the only set of people who will ever qualify for deferred action. The Government has the authority to grant deferred action to any person who is in the country without a valid legal status. Just because you don't meet all of the criteria in this particular program, does not mean that there is no hope.
And that is where the humanitarian reasons come to play. Let's say you have a child who came to the United States at age three. Now the child is nine. That child is enrolled in school, and presently in the United States. That child can qualify for deferred action. But, how is that child to be supported? Who is going to pay for the child's food, housing and medical bills? The most obvious answer is the child's parents. It is for this reason, that I believe that the undocumented parents of such children may still qualify for deferred action, but in their own right and not under this particular program. Quite frankly, if the child is going to apply, the Government will already have the address of the family on file. Unless we are talking about criminal issues or security problems, I don't see much more of a risk for the parents to request deferred action too.
But how do you apply? The old guidelines for applying for deferred action held that you applied to the District Director. And perhaps that is still the right answer. However, I have made one application for a person ho did not meet all of the qualifications, arguing that the general policy should still protect my client. I made the application before the new policy procedures were announced. I got a phone call from USCIS on August 16, telling me that now that the new procedures have been issued, that I should re-apply, but this time using those procedures. Using that as my guide, I would make the application for the parents through the same procedures, but make sure it is clear that we are not applying under the President's specific guideline. Rather, we are applying based on the President's inherent authority to grant deferred action to any undocumented alien. Check in later, and I'll let you know how it works out.
The deferred action program, also known as deferred action for Dreamers, applies to people brought into this country before age 16, who are under 31, and who have been in the United States for five years as of June 15, 2012. Certainly, among those who qualify will be minor children. If that is the case, can the Government ignore their parents?
To answer this, it is necessary too understand exactly what this program is. The deferred action program is not law. The DREAM Act has not been passed. The President has no power to grant legal status to the young people who qualify for this program. This is an exercise of discretion.
One way to think of it is to think of the police officer who observes illegal behavior on his beat. The police have the authority to arrest anyone they see who commits a crime. But, quite frankly, if the police were to do that, we would quickly run out of jail space. Well-trained police also know that sometimes, people break the law for stupid reasons, and they may not be dangerous criminals. So, the police exercise discretion. They do not always arrest every single law breaker they come across.
The same concept applies to the immigration system. Even though there are millions of people who are in violation of immigration law, the Government is not under a duty to enforce the law with respect to everyone. Quite frankly, if ever undocumented alien were detained and placed in removal/deportation proceedings, we would quickly run of resources. There are simply not enough immigration judges, ICE attorneys or detention facilities to enforce the immigration laws on every undocumented alien.
So, the Government has to choose against whom it will enforce the law. That is, it exercises discretion. Some cases are easy. Violent criminals, drug dealers and gang bangers are all top priorities for ICE, and well they should be. But, what about those people who came here simply to try for a better life, and to send money home to their families. Yes, technically they are breaking the law. But, if these are peaceful people, who do not break criminal laws, then ICE considers them low priorities.
There are also humanitarian reasons why the Government may not enforce the law. Think of the mother of a new born baby. If the baby was born in the United States, the baby is a U.S. citizen. In my experience, I have found ICE reluctant to institute removal proceedings against the mothers of newborn U.S. citizens.
These concepts all tie back to the current deferred action program. The President has established a set of criteria to identify people to whom he wants to exercise his discretion not to deport. But, this does not mean that this is the only set of people who will ever qualify for deferred action. The Government has the authority to grant deferred action to any person who is in the country without a valid legal status. Just because you don't meet all of the criteria in this particular program, does not mean that there is no hope.
And that is where the humanitarian reasons come to play. Let's say you have a child who came to the United States at age three. Now the child is nine. That child is enrolled in school, and presently in the United States. That child can qualify for deferred action. But, how is that child to be supported? Who is going to pay for the child's food, housing and medical bills? The most obvious answer is the child's parents. It is for this reason, that I believe that the undocumented parents of such children may still qualify for deferred action, but in their own right and not under this particular program. Quite frankly, if the child is going to apply, the Government will already have the address of the family on file. Unless we are talking about criminal issues or security problems, I don't see much more of a risk for the parents to request deferred action too.
But how do you apply? The old guidelines for applying for deferred action held that you applied to the District Director. And perhaps that is still the right answer. However, I have made one application for a person ho did not meet all of the qualifications, arguing that the general policy should still protect my client. I made the application before the new policy procedures were announced. I got a phone call from USCIS on August 16, telling me that now that the new procedures have been issued, that I should re-apply, but this time using those procedures. Using that as my guide, I would make the application for the parents through the same procedures, but make sure it is clear that we are not applying under the President's specific guideline. Rather, we are applying based on the President's inherent authority to grant deferred action to any undocumented alien. Check in later, and I'll let you know how it works out.
Monday, September 3, 2012
Should I Apply for Deferred Action?
Sure, the President has announced a program to grant deferred action to young people who were brought to the United States before they were 16, are under 30, and have been in the United States for 5 years. Yes, you can receive work authorization if approved. But, should you apply?
The big concern is that everyone who affirmatively applies for deferred action will be calling attention to themselves from the Government. Deferred action is a discretionary program. That means that the Government is not required to grant it to anyone. So, if you are denied, there is a chance that the Government will come after you and place you in removal/deportation proceedings. Is it worth the risk?
First, if you are already in removal/deportation proceedings, or if you have been ordered removed or granted deferred action, then you have nothing to lose. The worst possible scenario has already happened to you. You might as well give it a shot and apply. Just be careful of your time frames, so your time for voluntary departure does not run our before USCIS makes a decision on your case.
There are people who should absolutely not apply. Do you have any kind of criminal record? Then do not apply. You will find that USCIS will deny your application. Then, on some random morning within a week of the denial, at about 3:30 am, you will find ICE officers, heavily armed, banging on your door to take you into custody.
Do you have an outstanding order of removal or deportation? Perhaps you crossed the Rio Grande years ago, were placed in proceedings, and released on your own recognizance. Then, you never made it back to court. If you have an old order of removal or deportation, then there is a chance that your application will be denied, and like the person with the criminal record, ICE will come banging on your door at 3:30 am to take you in and send you back to your home country.
So, who should apply? As long as you remember that you are taking a risk, then you might find it beneficial to apply for deferred action. If it is very important to you that you receive work authorization, then applying for deferred action may make sense.
Also, there is a chance that Congress will eventually pass the DREAM Act, or some other type of immigration reform. Maybe, just maybe, Congress will give those who applied for deferred action for young people a better place in line if they pass reform. Of course, this is pure speculation on my part. But, it is based on some history. When amnesty last passed, people who had a place in line were given priority over new applicants. It makes sense to some degree. When you apply for deferred action, the FBI will do a background check. If the person passes the background check, then the Government will know already that the person is not a security risk.
But, everyone who applies for deferred action should keep in mind that the program is only as good as the promises of the Administration in power. If Barrack Obama loses in November, then it is almost a certain thing that the Romney Administration will not renew the program after two years. In fact, there is no promise that a new administration won't use the information gathered through the deferred action program to round people up and immediately place them in removal proceedings. Realistically, the chances of that are probably low, as the strain on the Government's resources will be phenomenal.
In sum, if you apply for deferred action, and you are not currently in removal/deportation proceedings, remember that you are taking a risk and that there are no guarantees.
The big concern is that everyone who affirmatively applies for deferred action will be calling attention to themselves from the Government. Deferred action is a discretionary program. That means that the Government is not required to grant it to anyone. So, if you are denied, there is a chance that the Government will come after you and place you in removal/deportation proceedings. Is it worth the risk?
First, if you are already in removal/deportation proceedings, or if you have been ordered removed or granted deferred action, then you have nothing to lose. The worst possible scenario has already happened to you. You might as well give it a shot and apply. Just be careful of your time frames, so your time for voluntary departure does not run our before USCIS makes a decision on your case.
There are people who should absolutely not apply. Do you have any kind of criminal record? Then do not apply. You will find that USCIS will deny your application. Then, on some random morning within a week of the denial, at about 3:30 am, you will find ICE officers, heavily armed, banging on your door to take you into custody.
Do you have an outstanding order of removal or deportation? Perhaps you crossed the Rio Grande years ago, were placed in proceedings, and released on your own recognizance. Then, you never made it back to court. If you have an old order of removal or deportation, then there is a chance that your application will be denied, and like the person with the criminal record, ICE will come banging on your door at 3:30 am to take you in and send you back to your home country.
So, who should apply? As long as you remember that you are taking a risk, then you might find it beneficial to apply for deferred action. If it is very important to you that you receive work authorization, then applying for deferred action may make sense.
Also, there is a chance that Congress will eventually pass the DREAM Act, or some other type of immigration reform. Maybe, just maybe, Congress will give those who applied for deferred action for young people a better place in line if they pass reform. Of course, this is pure speculation on my part. But, it is based on some history. When amnesty last passed, people who had a place in line were given priority over new applicants. It makes sense to some degree. When you apply for deferred action, the FBI will do a background check. If the person passes the background check, then the Government will know already that the person is not a security risk.
But, everyone who applies for deferred action should keep in mind that the program is only as good as the promises of the Administration in power. If Barrack Obama loses in November, then it is almost a certain thing that the Romney Administration will not renew the program after two years. In fact, there is no promise that a new administration won't use the information gathered through the deferred action program to round people up and immediately place them in removal proceedings. Realistically, the chances of that are probably low, as the strain on the Government's resources will be phenomenal.
In sum, if you apply for deferred action, and you are not currently in removal/deportation proceedings, remember that you are taking a risk and that there are no guarantees.
Saturday, September 1, 2012
Deferred Action: Do I Need a Lawyer?
I had a consultation last week with a young woman interested in the new deferred action for young people program. She admitted that at first, she thought that since the forms all looked straight forward, and since she could find all of the documents USCIS wanted, she thought she could do it all on her own.
But then, she saw one of the questions in the Form I-765WS, or the worksheet for the application for employment authorization. Specifically, the worksheet asks for her to list her current annual income. She paused when she got to this question, because by admitting that she has a current annual income, she is admitting that she is working illegally.
I think this is a very savvy point, and one that a lot of immigration lawyers who are writing on this topic are missing. The grant of deferred action is discretionary. That means, the Government is by no means obligated to grant it to anyone. By filling out these forms and sending them to the Government, you are calling attention to yourself. If the Government denies the application, there is always a possibility that the applicant will be placed in removal/deportation proceedings.
If you put an income down, you are admitting to working illegally. This is itself a reason for the Government to remove you from the United States. On the other hand, if you put down zero, when you were in fact working illegally, you have just lied in an attempt to gain an immigration benefit. Lying on an immigration form can earn you a lifetime ban from ever receiving a visa. And remember, the FBI is doing a background check on you.
Personally, I would find it hard to believe that any person who was brought here under the age 16, and is currently over 18 has not worked "under the table." If people are being honest, then the Government will receive thousands of applications with people admitting to illegal work. Now this is just my opinion, but I would not expect illegal work in and of itself would lead to a denial of deferred action. But I cannot guarantee that.
The real concern is whether USCIS will ask follow-up questions. If you admit to an income, then USCIS could follow-up with a Request for Evidence. That is, the Government may ask how you earn your income. For one thing, the Government could be looking for people who have used another person's green card, or have claimed to be a U.S. citizen, in order to get work. So, it is entirely possible that the Government will ask you how you got your job, where you worked, and whether you used a false ID card. It may also spark the Government to ask whether you have been paying taxes on your income.
This is where things could get treacherous. Using a false ID to get work is a crime. Using an ID that you know belongs to someone else is identity theft, which is an aggravated felony and can earn you a lifetime ban from receiving immigration benefits. Claiming to be a U.S. citizen is also a kiss of death for any future immigration benefits.
But, you would not be the only person to be put at risk by responding to these types of questions. USCIS can ask for details of your job, including your employer. If your employer has hired you knowing your immigration status, then the employer has violated the law and can face civil and criminal penalties. Sure, if your job has been with a local fast food restaurant, you may not care too much for your employer's liability. But, what if you worked for your uncle in his construction business? Do you really want to risk having your uncle found to be in violation of U.S. employment law?
So you see, even answering a simple question on an immigration form can have real, adverse consequences. If you are going to apply for deferred action, you need to know the full risk you are taking. The best person to explain the risks is an experienced immigration lawyer. Even then, many experienced immigration lawyers are missing some of the possible pitfalls present in this Government program.
But then, she saw one of the questions in the Form I-765WS, or the worksheet for the application for employment authorization. Specifically, the worksheet asks for her to list her current annual income. She paused when she got to this question, because by admitting that she has a current annual income, she is admitting that she is working illegally.
I think this is a very savvy point, and one that a lot of immigration lawyers who are writing on this topic are missing. The grant of deferred action is discretionary. That means, the Government is by no means obligated to grant it to anyone. By filling out these forms and sending them to the Government, you are calling attention to yourself. If the Government denies the application, there is always a possibility that the applicant will be placed in removal/deportation proceedings.
If you put an income down, you are admitting to working illegally. This is itself a reason for the Government to remove you from the United States. On the other hand, if you put down zero, when you were in fact working illegally, you have just lied in an attempt to gain an immigration benefit. Lying on an immigration form can earn you a lifetime ban from ever receiving a visa. And remember, the FBI is doing a background check on you.
Personally, I would find it hard to believe that any person who was brought here under the age 16, and is currently over 18 has not worked "under the table." If people are being honest, then the Government will receive thousands of applications with people admitting to illegal work. Now this is just my opinion, but I would not expect illegal work in and of itself would lead to a denial of deferred action. But I cannot guarantee that.
The real concern is whether USCIS will ask follow-up questions. If you admit to an income, then USCIS could follow-up with a Request for Evidence. That is, the Government may ask how you earn your income. For one thing, the Government could be looking for people who have used another person's green card, or have claimed to be a U.S. citizen, in order to get work. So, it is entirely possible that the Government will ask you how you got your job, where you worked, and whether you used a false ID card. It may also spark the Government to ask whether you have been paying taxes on your income.
This is where things could get treacherous. Using a false ID to get work is a crime. Using an ID that you know belongs to someone else is identity theft, which is an aggravated felony and can earn you a lifetime ban from receiving immigration benefits. Claiming to be a U.S. citizen is also a kiss of death for any future immigration benefits.
But, you would not be the only person to be put at risk by responding to these types of questions. USCIS can ask for details of your job, including your employer. If your employer has hired you knowing your immigration status, then the employer has violated the law and can face civil and criminal penalties. Sure, if your job has been with a local fast food restaurant, you may not care too much for your employer's liability. But, what if you worked for your uncle in his construction business? Do you really want to risk having your uncle found to be in violation of U.S. employment law?
So you see, even answering a simple question on an immigration form can have real, adverse consequences. If you are going to apply for deferred action, you need to know the full risk you are taking. The best person to explain the risks is an experienced immigration lawyer. Even then, many experienced immigration lawyers are missing some of the possible pitfalls present in this Government program.
Monday, August 27, 2012
Deferred Action for Childhood Arrivals (DREAMers)
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:
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD
William J. Kovatch, Jr.
(703) 837-8832
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:
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD
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.
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.
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