Immigration Law MonthlyFebruary/March 2006
Written by Henry J. Chang
I just received my master's degree from a United States university and I am currently on Optional Practical Training (at the same university as adjunct faculty). My boyfriend (a U.S. citizen) and I are planning to get married soon, after dating for over 2 years. Since both of us have been in school for the past 2 years and we do not meet the income requirements for the affidavit of support, can we argue that we will have the income from now on? (he, just like myself, is currently employed). Is there any legal way to avoid finding a sponsor?
As you know, your (future) husband would normally have to attach is three most recent U.S. Federal Income Tax Returns to his Form I-864 Affidavit of Support. However, if he was legally not required to file a tax return in some or all of those years (i.e. because his income was below the minimum amount), they are not required. Of course, without these tax returns, the consular officer/USCIS examiner may conclude that your husband does not have the ability to support you.
Evidence of present ability to support the beneficiary (i.e. current employment) may be considered when assessing a Form I-864, even if the sponsor has not been employed long enough to have previously filed a U.S. Federal Income Tax Return. However, depending upon the officer/examiner, a letter of employment alone may or may not be sufficient to demonstrate your husband's ability to support you.
If you have been living in the same household as your husband in the United States for at least six months, your income may be considered also. However, you probably also do not have a previous U.S. Federal Income Tax Return filed. You can submit an employment letter also, which will evidence additional income, but it may be discounted for the same reason as your husband's income.
The chances are that one or both of these letters will be sufficient to demonstrate the ability to support you. However, given the fact that neither of you can provide U.S. Federal Income Tax Returns with the Form I-864, it may be a good idea to find a co-sponsor (perhaps one of his U.S. relatives) who is willing to file a second Form I-864 on you behalf.
If you do not want to use this second Form I-864 unless it becomes necessary, you can hold back on submitting it until you know that there is a problem. At that point, you can provide them with the second Form I-864 to satisfy their concerns.
I am working in the United States under H-1B status. My company will be submitting my PERM application for me very soon. My girlfriend entered the United States as an F-1 student. She graduated and then overstayed for 1.5 years since her practical training ended. If we get married now, can she be included in my green card application? When is the best time (in terms of my green card and citizenship application) for us to get married so that we both can get a green card? Is there any way for her not need to leave the United States?
As long as you marry your girlfriend before you become a lawful permanent resident of the United States, she will be considered a derivative beneficiary in the same employment-based category. As a result, she will be entitled to receive lawful permanent residence at the same time as you, even if she is not originally listed on your Form I-140 petition (assuming that you are not already married at that time). However, if you marry after you become a permanent resident, the only way to file for her would be by submitting a family-based 2a preference petition for her. That will take years to complete because of the backlog of visa numbers for this category. So it is in her best interests to seek lawful permanent residence as your dependent under your employment-based case.
Unfortunately, your girlfriend is out of status in the United States so she is ineligible to file for adjustment of status. Instead, she will need to do consular processing of her immigrant visa in her home country.
If you are both from the same country, you may wish to consider also proceeding by way of consular processing instead of adjustment of status. This is because she cannot begin consular processing abroad until you have obtained your permanent residence. Normally, you need to also file an Application for Action on an Approved Petition, requesting that USCIS notify the consulate abroad that you have adjusted status. This can result in delays for your wife. If you both consular process, both of you will be able to obtain your immigrant visas at the same time.
Because your girlfriend is out of status, you should be aware of the unlawful presence bars under INA §212(a)(9)(B)(i). If she has incurred unlawful presence for more than 180 days, she is subject to a three-year bar. If she has incurred unlawful presence for 12 months or more, she is subject to a ten-year bar. If either apply, she will be inadmissible to the United States once she leaves the country unless she obtains a waiver. However, there is a good chance that she is not subject to either bar, notwithstanding the fact that she has already been out of status for more 1.5 years.
F-1 students are normally admitted for duration of status (D/S); if your girlfriend's Form I-94 shows D/S, she may not be subject to the bar. This is because unlawful presence is deemed to be any period beyond the expiration date shown on the alien's Form I-94. In D/S cases, there is no expiration date shown on the Form I-94. In such cases, unlawful presence will not begin accruing unless a formal finding of the alien's status violation if made either by:
- An immigration judge in exclusion, deportation or removal proceedings; or
- USCIS during the course of adjudicating a benefit application.
So assuming she was admitted for D/S, if your girlfriend leaves the United States before either of these events occur, she will not be subject to either of the unlawful presence bars. But if your girlfriend files an application with USCIS for some kind of immigration benefit (i.e. a work permit, adjustment of status, etc.) and they learn of her lack of status while she is still in the country, she will begin accruing unlawful presence. If she does not intend to immediately depart from the United States, your girlfriend should refrain from filing any application or petition that may bring her lack of status to the attention of USCIS.
I am a full-time student in the UK and a British Citizen. I have been offered a soccer scholarship in South Carolina. I have already attended a university in the U.S. for a semester last year under F-1 status. Unfortunately, I have been convicted of common assault. A person cannot be arrested for this, although can be charged. it is a very minor conviction and the maximum penalty is only community service, although I was given a fine of £150. I am looking to get my new F-1 and I want to know if there will be any problems.
You will require a formal consultation with me before I can give you a definitive answer on this because I would need to examine your court record and the applicable criminal statute in the U.K. to be sure. However, as a general rule, simple assault is not a crime involving moral turpitude and therefore does not result in inadmissibility under INA §212(a)(2)(A)(i)(I). In addition, even if it is considered a crime involving moral turpitude, this may fall under the petty offense exception if you have committed only one crime involving moral turpitude, the maximum penalty that may be imposed does not exceed one year of imprisonment, and the penalty actually imposed was six months or less of imprisonment.
I am a Canadian who met an American in 2002. I married him in the United States in 2004. I moved to the United States in May 2004 and married in August 2004. I did not get a visitor visa because I was told that, since I am Canadian, I did not need one. I did not get a fiancee visa either because from what we understood, as long as we got married in good faith while I was visiting [without it being intended for marriage itself and just for a visit], I did not need one. We then applied for permanent residence in 2005. I was waiting for the paperwork to be processed and to be contacted for interviews. During this time, our marriage fell apart and we decided a divorce was the only answer. This month, I moved out of the house and am staying with a friend while I wait for my divorce to be finalized [should take 90 days] and the applications to be withdrawn. I am receiving conflicting information regarding my situation. One source says that, since I stayed in the United States without a visa, I will be banned from the United States once I return to Canada. The other source says that, as soon as my application is withdrawn, I will revert back to being a visitor and I won't be banned. Which is correct?
The quick answer is that neither source is correct. I will try to explain this in greater detail below.
You were correct that, as a Canadian citizen, you do not need a visitor visa stamped into your passport before you can apply for admission (the visa exemption is discussed here.) However, you still need to satisfy the immigration officer at the time of admission that you meet the eligibility requirements for a visitor in order to be admitted under visitor status.
If, at the time you entered the United States as a visitor, it was your intention to seek permanent residence and remain in the United States, you would have immigrant intent and would be ineligible as a visitor on this basis. If you had this intention but lied about it at the time of admission, you could have been accused of making a material misrepresentation (which would have resulted in your being permanently barred from the United States). The only way this would have been legitimate is if you honestly intended to enter for a brief visit at the time of your entry and only later decided to marry and remain in the United States. As you can see, this type of strategy is very dangerous. Fortunately, it does not appear as though they accused you of material misrepresentation at the time that you applied for entry, although who knows if the USCIS examiner would have alleged it at the time of your adjustment of status interview.
Since they admitted you as a visitor and presumably did not issue a Form I-94 to you at the time of admission (because you are a Canadian citizen), you were lawfully admitted for an initial period of 6 months. So I believe you would have been in legal status as a visitor until some time in April 2005 (I cannot give you an exact date because you did not tell me exactly when you were admitted to the United States.)
If you applied for adjustment of status during this six-month period, your legal status would have continued while the adjustment was pending. If you waited until after the six months ended, you be out of status (making you subject to removal) and would normally be ineligible for adjustment of status. However, the spouse of a United States citizen is permitted to file for adjustment of status even if she overstays or otherwise violates her status prior to the filing of the adjustment application. So even if you filed the adjustment of status application after the six-month period ended, the adjustment of status application would have been valid, although you would have had a brief period when you were out of status (between the date that your visitor status expired and the date that your adjustment application was filed).
Normally, an overstay would cause you to begin accruing unlawful presence under INA §212(a)(9)(B)(i). If you exceeded 180 days of unlawful presence, you would be barred for three years upon your departure from the United States. If you reached 12 months of unlawful presence, you would be barred for 10 years upon your departure from the United States.
Fortunately, as Canadian admitted as a visitor (and who was not given a Form I-94) is treated the same way as duration of status (D/S) cases (see above). In such cases, unlawful presence will not begin accruing unless a formal finding of the alien's status violation if made either by:
- An immigration judge in exclusion, deportation or removal proceedings; or
- USCIS during the course of adjudicating a benefit application.
Based on what you have told me, you have probably not yet begun to incur unlawful presence. As a result, the 3- and 10-year bars probably have not attached to you yet.
You are now in the process of divorcing and terminating the adjustment application. Although there is some doubt whether you are still legally considered a pending adjustment applicant now that the marriage has broken down, you are probably still in status because it has not yet been withdrawn or denied. However, once the adjustment application has been withdrawn, you will immediately lose your legal status in the United States; you will not "revert" back to visitor status. I recommend that you leave the United States before this happens.
Assuming that you are not subject to the 3- or 10-year bars for unlawful presence at the end of all this, you are not prevented from seeking admission as a nonimigrant if you otherwise meet the requirements for that category. However, you should be aware that overstays and violations of status tend to suggest immigrant intent, which can disqualify you from the visitor category (and many other nonimmigrant categories).
An Italian citizen enters the United States under the visa waiver program in 1998 and stays two years beyond the 90 days originally given her. She is questioned at a bus station by ICE agents and eventually goes before an immigration judge who signs a deportation order. She puts up a bond and departs the United States for Nicarauga where she lives. Five years later, she visits family in Canada. On her way back to Nicarauga, she wants to transit through the United States. She does not have a non-immigrant visa. Can she use the visa waiver program again? What are the consequences if she tries?
I still don't know if was given voluntary departure or whether she was actually removed. If she was actually removed or left the country while an order of removal was outstanding (and not pursuant to voluntary departure), she would be barred for ten years under INA §212(a)(9)(A). If this is the case, she should not attempt to reenter the United States under any circumstances, since only five years have elapsed. If she attempts to enter while she is barred, the penalties will be even more severe. If she needs to enter before the ten years are up, she will need to apply for permission to apply after removal, which will be difficult to obtain.
Assuming that she was given voluntary departure and left the country during the period allowed, she is not barred under INA §212(a)(9)(A). However, since she has previously violated status while under the visa waiver program, she is permanently barred from using that program in the future. She will definitely require a visitor visa even to transit the United States, since the transit without visa program is not longer in place. Unfortunately, this person will have a hard time obtaining a visitor visa because of her previous overstay (which suggests immigrant intent).
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