Category: Immigration

Mistakes to avoid when applying for a marriage-based green card

Mistakes to avoid when applying for a marriage-based green card

Atty

Attorney Hankins is an immigration attorney based in Seoul, South Korea and serves people from all over the world. She specializes in bringing families together. Don’t make the mistakes listed here — have someone in your corner who can guarantee the best possible outcome of your case.

When going through the process of getting your green card, or adjusting your status, there are a number of mistakes you can make. If you’re called in for an interview with U.S. Citizenship and Immigration Services officer, you may be excited or stressed. It’s not uncommon to make a few minor mistakes during this important interview, and the USCIS officers understand this. But some mistakes that may delay the approval of your application or, in some cases, cause it to be rejected.

Marriage Based Green Cards

Marriage to a US citizen or lawful permanent resident does not, by itself, automatically guarantee a marriage visa. The USCIS and the US State Department are always on the look out for marriage fraud and scrutinize marriage-based visa applications.

Some of the most common, and fatal, mistakes applicants make are:

  1. Failing to enter into a valid marriage

If your state recognizes common law marriage, it’s not enough to live together. If you were previously married, you must have proof that the marriage has ended. This is done by submitting death or divorce certificates. Failure to include this evidence will, at a minimum, result in your application being delayed while the USCIS requests this information from you.

You must be legally married under the laws and customs of the state or country in which you were married. Then you must submit evidence of your valid marriage, along with the initial petition. The actual marriage certificate, issued by a government agency, is required.

2. Attempting to apply for adjustment of status after entering the US unlawfully

Even if you’re married to a US citizen, if you entered the US unlawfully you are not eligible to adjust your status. The adjustment of status is mostly limited to people who entered the US legally. Submitting an adjustment of status application may even result in your being placed in removal proceedings.

3. Attempting to adjust status after using a tourist visa or visa waiver to enter the US

If you’re married to a US citizen, the USCIS expects you to start your green card process by filing an I-130 and then meeting with an officer in an overseas consulate. This process generally takes months. Some immigrants have tried entering the US on a tourist visa and then adjusting status.

Technically, this is a possible combination for some people. However, in order for this strategy to work, you need to prove that you didn’t misuse the tourist visa (commit visa fraud) in order to stay and get a US green card. If you visited the US and during your visit decided to get married, that’s normally okay. The longer the time period between the tourist visa entry and the submission of the green card application, the more chance the USCIS will approve it.

But if the USCIS believes you did abuse your tourist visa then your case can possibly be denied based on visa fraud (a ground for inadmissibility).

4. Failing to show sufficient financial support

If the USCIS believes that the beneficiary of an immigrant visa is likely to become a public charge (receive need-based public assistance or welfare), it’s likely they’ll deny your application. The US citizen or lawful permanent resident spouse must file an Affidavit of Support to prove that they either make a minimum statutory amount or have sufficient liquid assets. These assets must be enough to maintain your and sponsor’s household for a period of years, as determined by the US Poverty Guidelines.

Failure to file this affidavit or to show sufficient financial resources will result in your application being denied.

5. Failing to Complete the Application Properly

Leaving questions unanswered and entering inaccurate information are the most common ways to get your application delayed or denied. All information must match, and you must provide photos that meet the government’s specifications. Don’t take a risk by taking the photos at home.

Many applicants also fail to include all the necessary documents, including certified English translations, as well as supplemental evidence that shows that your marriage is legitimate.

If you have questions about adjusting your status, contact us here.

Married and living abroad? Consular processing might be for you

Married and living abroad? Consular processing might be for you

Atty

Attorney Daphne Hankins specializes in bringing family together, no matter where in the world they might be. Barred in the United States and based in Seoul, South Korea, she handles cases from all over the world. For questions about how to bring your loved one to the United States e-mail her at Daphne@HankinsImmigration.com or call her at +82 010 3184 6858.  

If you’re living in Korea or outside of the United States, there’s a chance you’re contemplating marrying someone you’ve met in your new home. You might want to return to the US one day, but what many don’t realize is that now is the perfect time to start the immigration process for their loved one.

If you’re trying to choose between a fiancé visa or marrying your spouse and petitioning, see this article.

If you’re in the US, you’d normally petition for your spouse and when that’s approved, apply for adjustment of status / their green card. But if you live abroad, consular processing fulfills the same function faster and cheaper than the I-485. This means that you can jumpstart your spouse’s path to citizenship long before you ever return home.

Are you eligible for consular processing?

If you are a US citizen or a lawful permanent resident living outside of the US, you are eligible for consular processing.

What is consular processing, really?

Consular processing is the process of getting a marriage based green card. The entire procedure takes between 11 and 17 months and costs $1,200 if you’re living abroad. This price is all inclusive.

What makes it different from your standard green card process is that it’s an option for those living abroad. The United States Center for Immigration Services (USCIS) transfers your case to the National Visa Center (NVC), which is run by the U.S. State Department.

The NVC will forward your case to a U.S. embassy or consulate in the applicant’s spouse’s country of residence.

You’ll file your DS-261 online, which tells the State Department how to contact you. The next step is often the one couples struggle the most with. You’ll need to submit supporting documents which include:

  • An affidavit of support
  • A public charge questionnaire
  • Any additional supplemental documents the NVC requests.

For spouses living abroad, you’ll need to provide evidence that you intend to return to the US soon. You must also show that you have a job waiting for you, have enough liquid asset to meet the minimum financial requirement, or have a joint sponsor who agrees to take on the legal obligation of financially supporting your spouse in case you’re unable to.

Next, your spouse will have a medical examination by a State Department-approved doctor, then schedule a fingerprinting appointment at a visa application support center.

Once this is done, the green card interview is scheduled.

The Green Card Interview

This is the final step in the green card application process, and for many the most stressful and difficult part. It’s wise to go into the interview with an organized file and an idea of what questions the officer will ask.

The spouse living abroad attends the interview in their home country. The sponsoring spouse is sometimes not allowed to attend.

If the consular officer is sufficiently convinced that the marriage is not fraudulent, they may approve the green card application on the spot. But the officer may also:

  • Request for Evidence (RFE): ask for additional documentary evidence that your relationship is authentic. For example, requesting additional utility bills, bank statement, affidavits from your friends and family, etcetera.
  • Additional Review: the officer will review your case and then send you the decision in the mail.
  • Second Interview: the officer will invite you to return for a second interview to discuss certain areas of your relationship or background.
  • Denial: If the officer believes that the marriage is not bona fide the case may be outright denied. A denial may be on the spot. Factors that lead to denial include insufficient documents, issues uncovered in a background check, or immigration history issues. More often than not, the officer will give you a chance to clear up such issues before making a final decision.

Once you’ve been approved, your spouse has six months to enter the United States before the visa expires.

To ensure that you get the best possible result for your case, have an attorney guide you through the process and ensure that you’re prepared for all situations. For help with spousal petition and consular processing, contact Daphne@HankinsImmigration.com or call at +82 10 3184 6858.

The Most Commonly asked DACA Questions (2020)

The Most Commonly asked DACA Questions (2020)

Atty

The twelve most commonly asked questions about DACA, answered.

Deferred Action for Childhood Arrivals (DACA) is a policy which allows certain children who were brought into the US and accrued unlawful presence to receive a renewable two-year period of deferred action from deportation. Even the perfect candidate for DACA may struggle to jump through the many hoops this policy demands.

  • Am I still eligible for DACA if I dropped out of high school?

No. In general, if you dropped out of school or left an educational program you will not be eligible for DACA or a DACA renewal. But you may sign up for a new educational program and apply.

  • My primary school is no longer around to request transcripts from. Who do I contact?

Contact your school district to inquire about this information.

  • Can I travel to more than one country on my Advance Parole?

You can but be certain that you return to the US before your travel document (Advance Parole) expires. The reason for your travel must also be employment, educational, or humanitarian related.  

  • I received a traffic ticket – do I include this in my application?

No. You don’t need to include minor traffic violations unless they’re alcohol or drug-related.

  • How do I prove that I’ve been in the US since 2007 if I did not attend primary school or go to a doctor?

You may prove residency in a number of ways. You can use your Parents’ Federal Income Tax Returns or Tax Transcripts if you’re listed as a dependent, if that is applicable. You may also use your parents’ leases, rental receipts, bank statements, etcetera.

Religious records from a church, mosque, or any other place of worship may also be used. For example, documents related to baptism, presentation, naming ceremonies, or any other public even or rite of passage your family celebrated with you while you were in the US.

Any photographs placing you in the US since the age of 16 and since 2007.

  • Can I travel to Puerto Rico or the Virgin Isles without Advanced Parole?

You may technically visit Puerto Rice and the US Virgin Islands without Advance Parole, but you should be aware that there are risks in doing so. Though they are US territories, flights can be rerouted through other countries, which may impact your ability to reenter the United States.

Additionally, entry back into the United States is always at the discretion of the Customs and Border Patrol officer inspecting your return. This means that even with an approved Advance Parole you’re not guaranteed to be allowed back in.

  • Can I submit bills and utility letters from my parents as proof of residence if my name is not on the bill?

Yes, if there is no better evidence available you may submit your parents’ utility bills in conjunction with evidence that you lived in your parents’ home at the time.

  • Can I purchase a home under DACA?

This depends on the lender. DACA status by itself does not stop someone from buying a home, that it can complicate the financing process since DACA status can make you ineligible from receiving certain types of loans. For example, the Federal Housing Authority loans from US Housing and Urban Development.

  • Do DACA recipients get COVID stimulus checks?

No, DACA recipients are not eligible to receive COVID stimulus checks. These checks are only being sent to US citizens, lawful permanent residents, and “resident aliens” (defined as a non-citizen who resided in the US for 31 days in 2019 and a total of 183 days in 2018 and 2019).

  • What kind of healthcare can I get under DACA?

DACA recipients are not considered an eligible immigration status for applying for health insurance through the Federal Marketplace under the Affordable Care Act (“Obamacare”). The type of health insurance you may qualify for depends on the state in which you live, and whether the state has any programs or private providers who accept enrollment from DACA holders.

  • Can I get a private loan under DACA?

It’s possible but it depends on the terms set by the lender. Some lenders accept enrollment from DACA holders who do not otherwise have status in the US.

  • Do I need to update USCIS if I move?

Yes. If you are in the US under DACA you should update the United State Citizenship and Immigration Services (USCIS) within 10 days of a move. But if you’re out of status, it’s not recommended to contact the USCIS, because it may draw unwanted and negative attention.

The Naturalization Test is Getting Harder

The Naturalization Test is Getting Harder

Atty

Becoming a citizen of the United States has gotten harder and the trend promises to continue with U.S. Citizenship and Immigration Services (USCIS) unveiling of a new test for naturalized citizenship.

Passing the naturalization test is the final requirement for permanent residents (also known as green card holders) to become US citizens. The test is taken orally during the naturalization interview as one of the final stages of the citizenship process.

This new test is drawn from 128 American history and government questions. Previously, there was a pool of 100 questions to draw from. Certain questions have been reworded and other questions will require more explanation.

For example, a question that had previously asked, “There were 13 original states, name three,” is now, “There were 13 original states. Name five.”

Another question, “What are two rights of everyone living in the United States?” is now, “What are three rights of everyone living in the United States?”

Additionally, applicants must answer 12 out of 20 questions correctly to pass. Previously, applicants needed to answer six out of 10 correctly. Despite the increase of questions, the pass percentage remains the same at 60%.

This is the first time the test has been updated in over a decade. Anyone who applies for naturalization after December 1st, 2020 must take the new version.

These modifications have come under criticism from certain immigration advocates, who state that the questions have been made more difficult without evidence of need for it. Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, has stated that the questions now have a, “subtle political stance”.

“One question in particular raises concerns of politicization. On the old test, applicants could be asked ‘Who does a U.S. senator represent?’ The suggested answer was ‘all people of the state.’ On the new test, the suggested answer is ‘citizens of their state,’” Reichlin-Melnick stated, adding, “This is not correct. Members of Congress represent everyone who lives within their district, regardless of citizenship status. It’s been that way since the nation was founded.”

The Woodrow Wilson National Fellowship Foundation compiled a national survey that found that just 1 in 3 Americans would pass the citizenship test. For this reasons, it’s important to have an attorney who can guide you through the process and ensure that you get the results you’re looking for the first time.

So far, it is unknown whether or not President-elect Joe Biden will make any revisions to this test once he takes office.

China Visa Series: Getting The Chinese Green Card (D Visa)

China Visa Series: Getting The Chinese Green Card (D Visa)

Atty

Whether you want to visit China long-term as a business owner or just on holiday, a necessary hoop you’ll have to jump through is getting a visa. And there’s no denying it’s a complex system. This will be a three part series that will guide you through the process of getting the three most desired visas: the permanent residence visa (D), the tourist visa (L), and the business visa (M).

The first visa we’ll be looking at is the D visa, frequently called The Chinese Green Card.

As a US citizen, you might be used to low-to-no cost entry into foreign countries. China visa fees stand at $140, with the maximum it asks for other other countries hitting a maximum of only $90 if they ask for multiple entries for ten years. There are only a handful of countries that charge US citizens at that rate or higher, though Saudi Arabia takes the cake with a visa fee amounting to half a grand at $533.

From the get go, you should know that $140 fee applies to your visa no matter how long you’d like to say, or whether or not you’re applying for multiple entries. For this reason, immigration attorneys and visa agencies will often advise you to go for broke and apply for the visa that offers multiple entries over ten years. If you tell them you’re not interested chances are they’ll look at you like you have five heads.

Ordinary Visas

A bit of background

There are four types of visas, the diplomatic, the service, the courtesy, and finally the ordinary. The vast majority of people seeking to enter China will fall into the ordinary category.

Ordinary visas are true to their name in that they apply to people who have ordinary reasons for trying to enter China. These categories of reasons are divided into twelve types: C, D, F, G, J1, J2, L, M, Q1, Q2, R, S1, S2, X1, X2, Z.

These visas range from foreign crew members on international transportation to foreign national students studying in China for a semester.

The Chinese Green Card

One of the most difficult ordinary visas to obtain is the D visa. In 2012, it was estimated approximately 5,000 D visas were granted to foreign nationals… since the program started in 2004. It’s possible that we’ll see the PRC issue more D visas in the future as the PRC seeks to entice top-level foreign talent.

But if you can get it, the D visa is one of the most desirable in that it’s essentially the Chinese version of the US green card. It grants its owner permanent residence in China and freedom to work, leave, and return to country at will… without ever having to apply for an extension or make a visa run. But it does not make the visa holder a Chinese citizen.

First and foremost, you must be 18 to qualify for this visa and not have a criminal record that the Chinese government will recognize. If you have that down, the next thing to consider is which of the six paths to permanent residence applies to you.

The types of qualification for D visa falls generally into two categories, only one of which will be considered here: either family related or business related.

For business related D visas, there are two roads. You must either be an investor or an employee. But beyond that, there are strict requirements attached to each.

D Visa: Investment

If you’re seeking to gain permanent residence in China based on your investments you must have made:

  • direct investments in China for three consecutive years and have a record of taxation as well as,
  • made an investment of over $500,000 USD in industries that are noted in the Catalogue of Industries of Foreign Investment produced by the PRC government
  • have made a total investment of over $500,000 in China’s western counties, or in counties which are currently the focus of poverty relief action by the PRC government,
  • have a total investment of over $1 million USD in the central part of the country, or
  • have invested over $2 million USD in the PRC government.

If you meet any of the above, you can then consider whether you have or can do the last four requirements.

  1. You’ll need to complete the D Visa form.
  2. A valid foreign passport.
  3. Two valid passport photos.
  4. Received a certificate of health after undergoing the Exit-Entry Inspection, conducted by the Quarantine Bureau or issued by a foreign medical agency that is accredited by teh Chinese embassy. Worth noting is that once you receive your certification it is only valid for six months.
  5. Finally, you must have certificates of registration, approval of foreign funded enterprises, proof of combined annual inspection, proof of personal tax payment, or any other document that would be relevant and material in proving the validity and worth of your investment in China.

Assuming you’ve managed to overcome every hurdle, the next step is to actually submit your documentation and fees, then kick back your feet and wait for it to process.

You’ll submit your application, with a copy of your passport page, your two passport photos, your health certification, evidence of no criminal record, all relevant documents surrounding your investment, and fees (1,500 RMB Application Fee for each person, 300 RMB for each Foreigner’s Permanent Residence Permit) to the Public Security Administration of a province of your choice, so long as it’s controlled by the PRC.

You can submit it yourself in person or you can have a third party go in your stead, but the third party must have power of attorney to submit the documentation, which should be attested to by a Chinese embassy or consular office.

Once your material is submitted, the Public Security Authority will provide a decision within six months.

D Visa: Employment

The requirements for those seeking a D visa through the professional or employment channel also face their own strict set of requirements:

  • the applicant must have worked as a deputy general manager, deputy factory director or above, or of associate professor, associate research fellow and other associate senior titles of professional post or above or enjoying an equal treatment;
  • she must have worked at least four successive years, with a minimum period of residence in China for three cumulative years within that four-year time frame;
  • she must be in good standing in terms of taxation;
  • the units where she worked must meet any of the following terms and conditions:
    • institutions subordinate to the various ministries under the State Council or to the provincial level people’s governments;
    • major higher learning schools;
    • enterprises or institutions executing major engineering projects or major scientific projects of the State;
    • high-tech enterprises,
    • foreign invested enterprises in encouraged type,
    • foreign invested advanced technology enterprises or foreign invested export-oriented enterprises.

If you fit these narrow qualifications, then you may be eligible for a D Visa. Similar to the Investment path, you must then meet then submit all of the necessary paperwork.

You’ll submit your application, with a copy of your passport page, your two passport photos, your health certification, evidence of no criminal record, all relevant documents surrounding your employment, and fees (1,500 RMB Application Fee for each person, 300 RMB for each Foreigner’s Permanent Residence Permit) to the Public Security Administration of a province of your choice, so long as it’s controlled by the PRC.

But beyond that you must also provide one of the following:

  • units are foreign funded enterprises, the certificate of approval of foreign funded enterprises and proof of combined annual inspection should also be provided;
  • persons of enterprises or institutions executing major engineering projects or scientific projects of the State should provide testifying documents for the projects issued by the competent authorities of the provincial level people’s governments or ministries;
  • persons working for high-tech enterprises should provide certificates of high-tech enterprises;
  • persons working for encouraged type foreign funded enterprises should provide letter of confirmation of the encouraged type foreign invested projects;
  • persons working for foreign invested advanced technology enterprises should provide letter of confirmation of foreign invested advanced technology enterprises;
  • persons working for foreign invested export-oriented enterprises should provide letter of confirmation of foreign invested export-oriented enterprises.

Whether you’re applying for a D visa under investment or employment, both offer very high bars for Chinese-resident hopefuls. But we may see China relax these strict requirements in the coming years.