ImmigrationINFO ...Immigration News For Our Community

ImmigrationINFO …Immigration News For Our Community

May 25, 2014 News

By Attorney Gail S. Seeram

Through this “Question & Answer” column, our goal is to answer your immigration questions. We appreciate your comments and questions. If you have a question that you would like answered in this column, please email: [email protected].
Question #1: I married a U.S. born guy in November 2013 and he filed for me and my son. When he went back to the U.S. they sent him two sets of paperwork and he paid fees since February 2014 and he did not get any more. Do you know how long it would take for me to get an interview?
Answer #1: It takes about 9 months to 1 year after filing to get an interview. If there is a delay then your husband needs to check that he submitted all the required documents to the National Visa Center. Once file approved from the National Visa Center then it will be sent to the Embassy for interview scheduling.
Question #2: I was married for 21 years common law and have four kids together with my husband. I came to the U.S on March 15, 2011. I went back to Guyana and married my husband legally on May 15, 2011. I’m a green card holder. I fill out an I-130 form and I’m wondering how long I have to wait before my husband can come to live with us.
Answer #2: For spouse of a permanent resident, visas are currently available without a backlog but processing time should be one year. So, if you have not heard from the National Visa Center then contact our office.
Question #3: My mom, who is a permanent resident, sponsored her son who at the time was under 21 years old. The case was approved and completed in 2013. She’s finished paying for his visa and is just waiting for the appointment date for him to go in for the visa, but now he is over 21. Is he still able to get the visa now that he is over 21?
Answer #3: Since the beneficiary is now age 21, he has moved from a 2A family preference category to a 2B family preference category. For an unmarried child over age 21 of a permanent resident, visas being issued for petitions filed on or before October 2003. For an unmarried child under age 21, of a permanent resident, visas are being issued for petitions filed on or before May 2012. Also, the Child Status Protection Act may apply to recompute the child’s age to under 21, depending on the date the petition was received and the date the petition was approved.
Question #4: My Father-in-Law applied for us to migrate to the US. The Priority date is June 2002, which falls under the F3 category. My husband is the beneficiary. In 2008 my Father-in-Law died and my husband’s sister and her husband who migrated in the ‘80s are now the sponsors. Recently the USCIS sent a checklist for them to submit the relevant information that was sent back to them (USCIS) via express mail approximately two weeks ago.
Answer #4: I hope your sister-in-law applied for reinstatement of the I-130 filed by your father-in-law. When your father-in-law died, the petition is void. Reinstatement has to be approved before you can substitute a sponsor. Our office has handled many reinstatements and would be happy to help.

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Unlawful Presence in U.S. Results in 3- or 10-Year Ban

In applying to become a lawful permanent resident of the United States, there are many requirements that must be met by the petitioner and beneficiary. In most cases, the petitioner must prove income eligibility and the qualifying relationship (i.e., spouse, child, parent). On the other hand, the beneficiary must prove that they do not have a criminal record, are in good health (hence the medical exam) and do not face any type of bar from entering the United States.
Many beneficiaries of an immigrant visa (green card) are unaware of the three-and-ten-year bar from returning to the U.S. The “three- and ten-year bars,” provisions of the U.S. immigration law prohibit applicants from returning to the United States if they were previously in the U.S. illegally. Thousands of people who qualify for green cards based on their relationships to U.S. citizen or lawful permanent resident relatives discover the three-and-ten-year bans when they process at the U.S. Embassy.
If an alien or immigrant was in the U.S. illegally or without legal status for six to 12 months (such as overstay on visitor visa and then departs the U.S.) then they are barred from returning to the U.S. for three years; those in the U.S. illegally for more than a year illegally are barred from returning to the U.S. for 10 years.
The Secretary of Homeland Security may waive the bar to admission if extreme hardship to a spouse or parent can be established. But there are no waivers available for others, even if it would mean hardship for U.S. citizen children. Unfortunately, current policies and interpretations of these provisions have made it difficult—and sometimes impossible—for many deserving applicants to obtain a waiver. For those who qualify to submit a waiver for unlawful presence in the U.S., these waivers are submitted in the U.S. and not at the U.S. Embassy.
Under current policy, spouses of U.S. citizen who are illegally in the U.S. and have accumulated unlawful presence in the U.S. can file a provisional waiver in the U.S. to waiver the 3/10 years ban and once approved, they are required to return to their native country for issuance of the immigrant visa (green card) and then can re-enter the U.S. legally.
The waiting time for a decision on a waiver can vary significantly, but averages between six and twelve months. Of course, not all waivers are granted, and those immigrants may not reunite with their family members for years. An appeal of a denied waiver can take up to 28 months or longer before the Administrative Appeals Offices.