Articles Posted in Family Immigration

This is a very common question we receive all the time, “How do I get my fiancé a visa to come to the United States?” Should my fiancé come over on a visitor visa and then we will get married? Should I file a fiancé visa for her to come over and then we get married? These are all very good questions, and the answers very much depend on the facts surrounding each case.

Lets start with a brief overview of United States visas available for domestic relationships. If a U.S. citizen is married to someone who is not a citizen, the U.S. citizen can file an I-130 Petition for their spouse, which if approved, will provide the spouse with a visa and an opportunity to apply for a green card immediately. If a lawful permanent resident is married to someone who is not a citizen or lawful permanent resident, the process is the same, but once the I-130 is approved, there will be a wait of potentially several years before the spouse can apply for their green card.

If you are a lawful permanent resident of the U.S. and your fiancé lives in another country, sorry but you are out of luck. There is no visa available for the fiancé of a lawful permanent resident. You will either to apply to become a citizen and then file for a fiancé visa, or you will have to get married before you file the I-130 for your spouse.

If you receive your 2-year green card through your spouse, then it is VERY IMPORTANT TO REMEMBER, that 90 days before the expiration of the your card (90 days short of your 2-year anniversary of getting your card) you can file an I-751 Petition. You have until the expiration of your card to file that I-751. If you fail to file the I-751, for any reason, USCIS will terminate your conditional permanent resident status and likely issue you a Notice to Appear (NTA) to go to immigration court and prove why you should not be deported.

If you miss your 90 day filing window, don’t panic, there are sometimes excuses for filing after that time period, but you must specifically ask USCIS to accept your late-filed I-751 and give them a good reason why. If you don’t ask them to accept your late I-751 and don’t give them a good reason why you filed late, they will likely deny your I-751. If you missed your 90 day window, or preferably before you miss your window, consult with an experienced and preferably Board Certified immigration attorney to review your case and give you advice (like me: https://www.slgattorneysflorida.com/john-gihon.html). Or don’t talk to an attorney and risk wasting your money and time and having your Petition denied because you don’t know what you don’t know about immigration law.

Now that you know who has to file an I-751 and when you have to file your I-751, we can discuss how you file it. There are three different ways to file your I-751 and each depends on your marital status at the time you are ready to file (the 90 day window) and the hardship you would face if you were deported.

This is a question that many conditional permanent residents (married immigrants with 2 year green cards) face when they receive their decision letter on their I-751 Petitions. My I-751 was denied, what do I do now? Do I need an attorney? Am I going to be deported? What are my options? Can I appeal the denial decision? Can I file another I-751? Can I marry someone else and try to adjust status again? What are the bonafides of a marriage?

These are all extremely good questions and I will answer all of them. But before I answer the questions, its important to begin from the beginning about the entire process. If everyone understands where we have been, its easier to know where we are going.

When a non-citizen immigrant marries a U.S. citizen or lawful permanent resident (LPR), the U.S. citizen/LPR can file something called an I-130 Petition for Alien Relative. If approved, this Petition will allow the non-citizen spouse to receive an immediate relative visa that allows the immigrant to become a lawful permanent resident. If the immigrant’s spouse is in the United States at the time of marriage and eligible to adjust status in the U.S. (because they were admitted or paroled into the United States at their last entry), the petitioning spouse can file the I-130 and the non-citizen beneficiary can file an I-485 Application to Adjust status all at the same time. If the non-citizen beneficiary is not in the U.S. or not eligible to adjust status in the U.S., then the I-130 Petition comes first, and if approved, the non-citizen spouse can attempt to consular process and obtain their green card through a U.S. embassy overseas.

On Tuesday, the U.S. Supreme Court gave a glimmer of hope to President Obama’s 2014 Immigration Executive Action plans that have been stalled in federal court since last year. The high court will either lift the ban on the President’s immigration plans or they will affirm the lower federal court’s ruling, ringing a final death bell to these actions.

In November of 2014, the President issued executive actions creating two types of Deferred Action that would benefit about 4-5 million people currently in the United States without lawful immigration status. You may ask yourself, Do I qualify for DAPA or expanded DACA? I blogged about these programs in 2014:

See https://www.floridaimmigrationlawyerblog.com/2014/11/president_obama_announces_a_ne.html for DAPA, and

Congress recently passed legislation that changes who is eligible to enter the United States through the Visa Waiver Program (VWP). These changes are in reaction to the fears that terrorists and terrorist sympathizers will enter the United States exploiting the ease by which people can enter through the VWP.

The Visa Waiver Program was designed to allow citizens of certain countries to avoid the lengthy process by which most foreign nationals must apply for a visa at a U.S. consulate abroad. The normal process involves an application, a background check, an interview and sometimes more. Applications for short-term visitor or business visas are routinely denied. The Visa Waiver Program allows qualified citizens from 38 countries to avoid this process and with a quick online registration, obtain an electronic visa and admission into the United States for 90 days at a time.

This list of 38 countries changes often and usually only contains first-world countries that have low rates of people overstaying their visas, claiming asylum or otherwise abusing the visa process. Citizens from all over Europe, Australia, New Zealand and parts of East Asia enjoy the use of Visa Waiver admissions.

Last month I had the honor of speaking at the Florida Public Defender Association’s 30th Annual “Trial with Style Conference” in unfortunately rainy Fort Lauderdale. While in one of my former lives as a state prosecutor and I like to think I always tried my cases with style, during this conference I did not talk about anything specifically to do with trying a case.

My topic was “Crimmigration: the intersection of Criminal and Immigration Law.” Let me preface this piece with the following caveat; not all immigrants are criminals (sorry Donald Trump) and recent research has shown that foreign-born residents are less likely to commit serious and violent crimes than native-born citizens.

That being said, this subject is of great interest to most criminal defense attorneys in Florida. Florida has the fourth-highest foreign-born population in the U.S. Almost 20% of all residents in Florida were born in another country. Because Florida is now the third largest state with a total population of over 20 million, that means we have roughly four million foreign-born people living in Florida. Florida is also top 10 in the country in crime rate. You combine all of these factors, and you see why criminal defense attorneys need to know immigration law.

Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the District Court Cases for Alabama, Georgia and Florida. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

District Court Decisions

Over the last few months I had the opportunity to work with some fantastic immigration attorneys across the Southeast United States on a collaborative project. Our goal was to find, review and summarize every immigration-related and useful District Court and Circuit Court Case from the Eleventh Circuit and put them together in a newsletter. This was an enjoyable and educational experience. We expect to send out this newsletter every quarter and it will contain published and unpublished District Court cases from Florida, Alabama and Georgia and the Eleventh Circuit Court of Appeals.

This would not be possible without the hard work of our multi-state team composed of Marshall Cohen, Roberta Cooper, Bruce Buchanan and myself, John Gihon. Here are the summaries of the 11th Circuit Cases. If anyone reading this newsletter has any suggestions, please contact me at John@slgattorneys.com or our editor, Bruce Buchanan at bbuchanan@visalaw.com

11th Circuit Cases:

There is a bill currently pending before Florida Senate that seeks to increase the maximum punishment for certain crimes committed by “illegal immigrants.” You can read the text of Senate Bill 150 here:

http://www.flsenate.gov/Session/Bill/2016/0150/BillText/__/HTML

Thankfully, there is no companion bill in the House. At first glance, many Floridians may think, “good, if someone is here illegally and commits a crime, they should face higher penalties.” But that gut reaction is wrong in this case, as the devil is always in the details. If you know anything about immigration law or have been following the protracted fights between the Obama administration and the federal courts over immigration, you know that the Federal Government and Federal Courts have a hard time interpreting and administering federal immigration laws themselves. What this bill proposes to do is to impose upon the Florida courts, prosecutors and criminal defense attorneys the additional time, financial and legal burden of determining the immigration status of a person before, during and after they commit a crime. This is much easier said then done.

Finding yourself in handcuffs and under arrest is a traumatic experience for everyone. Many thoughts run through your mind, where will they take me, will I be able to get out of jail, can I afford a criminal defense attorney? One thought that should also be at the forefront for everyone arrested who is not a U.S. citizen is, how will this arrest affect my immigration status and will I be deported?

For non-citizens who are arrested, hiring a criminal defense attorney is just the first step in protecting your rights. While criminal defense attorneys in both state and federal court are charged by the U.S. Constitution with providing accurate immigration advice to their clients, in reality, this often does not happen. Criminal defense attorneys are often unable to give accurate immigration advice because they do not practice immigration law and have no idea what the effects of a given criminal charge will be for a client.

This is true because the criminal aspects of immigration law, or crimmigration is a very nuisanced, complicated, ever-changing and inconsistent area of law that even the most experienced immigration attorneys are often fearful of practicing. If immigration attorneys don’t know the immigration consequences of criminal prosecutions, how can your criminal defense attorney be expected to know them?

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