Immigration Attorneys Blog

I am often asked if a man and a woman have a ceremonial or party marriage, purely for the enjoyment of the family who often cannot travel to the US for a US wedding, can they still obtain a fiance visa and have a legal marriage later in the states.
The answer is yes, But! Consideration should be given to some of the pitfalls this can raise and care taken to avoid them. First, in order to be eligible for a fiance visa both parties must be "able to marry". This means that they are not now married to anyone, that previous marriages have been dissolved or annulled or that one or more previous spouses are deceased. This also presumes that neither party has any other impediment to marriage such as illness, certain types of disability, and the like. What is an impediment to marriage will depend on the laws of the country wherein the previous marriage ceased and the laws of the state in the US wherein the parties will seek to marry upon arrival on the K-1 visa and Marriage visa.
As an aside, I am often asked "do I have to show that ALL my previous marriages ended or just the most recent ones? Setting aside the inherent humor in this question, the answer is All.
Generally speaking, the USCIS will recognize a marriage which is legally binding in the place where it occurs (also see: http://www.immihelp.com/immigration/marriage-certificate.html. ). Therefore the question is what is a legally binding marriage. It is one which meets All the criteria for a legal marriage. "Just a few will not do". Most countries require some form of government registration or sanction and or religious formalizing of the relationship. If the man and woman go through a ceremony, in effect only a family party, but do not register or otherwise formalize the marriage so that it would be binding in that country, then they are not truly married and are eligible for a fiance visa.
But be warned, there will usually be an interview before the USCIS and or consulate / embassy staff and many the prospective bride, after such a ceremony or party, has answered "yes" to the official's question about having been married... she meaning the unofficial ceremony...and at that point bang, lights out! Fiancée visa denied. So be careful. Know what to say and often and more importantly, what not to say. ....more later.

As discussed in my last cynical (but correct) the republicans got wacked good in the November elections; in no small part due to the voting power of our immigrant population and in in particular the Hispanic vote. No big news and wholly expected, but the scale and unity of this voting block was unique and a harbinger of things to come.
No less than John Boehner, the head republican in charge in the House, now has had an epiphany (a word I like) and decides that even he will, while if not "bow to the will of the people"; he is willing to recognize the fact that, at least on highly charged issues such as immigration, the demand of "the people", IE. Those with the votes, to have their immediate relatives come to the US, become permanent residents,and, if they choose, become citizens can no longer be ignored. In a recent speech Boehner said as much for the first time (see Article re Comprehensive Immigration Reform at:http://www.nytimes.com/2012/11/10/us/politics/republicans-reconsider-positions-on-immigration.html.
So...form and format is to be determined, (that means argued, threatened, etc., etc., ad nauseum) but will ultimately be addressed as an issue whose time has come for serious people to do serious work in resolution. News at 11.

Unlike the Dream Act, where Congress failed abysmally to reform and rectify immigration injustices (some may think there aren't any, but there are some and some are really glaring), some new, albeit temporary fixes, are now available for one of the worst. Many times I have had calls from persons who came into the US illegally with their parents. They have gone to school here all their lives, contributed to the community in many cases, worked and have even attended college or grad school. They feel, and justly so, that they should not have a continuing threat of removal from the US and want to become US permanent residents by adjusting their status and obtaining a green card and ultimately, citizens. Their parents may have tried to do this, or to be sponsored by another US citizen as a family member or even a spouse (through a marriage, or CR-1 or IR-1, visa; they or their parents have even considered leaving the US and coming back with a K-1 fiance visa spouse or marriage or other family based visa (DON'T DO IT, YOU MAY NOT GET BACK IN UNTIL AFTER UP TO A TEN YEAR BAN ON ENTRY, IF AT ALL...A BAD RESULT!!) or otherwise adjusting their status. The sad fact is that barring pretty unusual circumstances it "Ain't gonna happen", until now.

Now, something truly amazing has happened! WE ARE HAVING AN ELECTION and the Hispanic vote is, in fact, a big deal in most parts of our country. Thus for the first time, and a few months before the election, the government has taken some action, if only in a small way, to rectify the injustice of having kids, who are for all intents and purposes US citizens and acting like it (for better or worse), being subject to removal. While the actions of the Obama administration (could it be due to the election since no action was taken in 3.5 years previously?...but excuse my cynicism) in allowing these children/now adults to, at least temporarily, avoid removal and to live and work without fear, by deferring the long term determination of their ultimate status see "Deferred Action for Childhood Arrivals". Of course congress, being eternally deadlocked could/did nothing, as usual, we'll see after the election what long term action is taken by them)since the problem is far from finally solved. ...News at 11.

One of the most heart rending situations I encounter is when a potential client calls and says he was brought to the US as a young child, has been here for 30 years, worked, gone to school and has a family here who are all US citizens. His original entry was undocumented and now he wants to clean up his status. Can he apply for an adjustment of status , greencard or citizenship. While there are some avenues open to him the process is laborious and expensive; and of even more concern to the client is exposing himself to actual deportation and all that would mean to him and his family. This is a grey area and he wants a guarantee that he won't be kicked out for asking to stay...an anomaly which can and does happen.

What is the solution?

Our government and politicians (except where the electorate is substantially Hispanic and it is politically expedient to do so) shows not the will to solve this obvious problem in a comprehensive way. While I do not agree with a bunch of things President Obama says and does, he has demonstrated one solution and shown the gumption to "put a band aid on it" by just declaring victory and going home, i.e. By executive fiat he has instructed appropriate Federal authorities to simply not deport many persons in this subject class (see http://j.st/mPd and http://j.st/m8c for some interesting articles and recent developments). Amazingly enough we have here a politician (in fact, in many respects a consummate one) who is leading with his heart and not his head!...or is he? Has his political guru, David Axelrod, calculated the fall out vs. the impact on the Hispanic vote, and determined that this is the most expedient political move in this a good 'ole election year? In a world of rampant cynicism I will choose to believe the former until proven wrong. ...so what is the effect of this approach economically as well as socially...more later.

I have noted with some concern an increase in the number of situations where it may take longer to process a case than either of the parties (fiancés or spouses) would like. Though naive, I am often asked "well, suppose I just fly to (enter country name) get married and bring her back with me. It is then that I have to administer a dose of reality. While world wide the case processing times for fiance or marriage visas at AmeriLawGroup is in the 5-6 month range, individual factors in a case may cause this to be longer (or even shorter...believe it or not!). I feel it is an attorney's role to first and foremost be honest with his client. When I hear "well, I have been shopping around on the net and this lawyer told me that for $1500 he/she can do it in 2 months" I am bothered. If in fact, he or she actually said that (and there is often confusion on the clients part on this issue which must be clarified) then I am ashamed for the profession in this instance. It Just ai'nt so! Even more commonly the prospective client says "my friend got hers in 12 weeks" or some other period of time. I have found it incumbent upon myself to try and explain that each case is different in its facts and the people involved, and it is foolish, and basically impossible, to try an analogize one case to another (with the 12 weeks stated by the "friend" I highly doubt that is was a fiance or marriage visa and the conversation will usually bring out that no one is really sure of the facts of the "other" case).

But you might ask, "so what" if it takes a long time. I have seen, apart from being frustrating as hell, that this can, at times spoil a relationship if action is not taken. Sometimes the intended immigrant feels that the US citizen is not being honest with them or is "stringing them along"; harsh words, at a distance, can be just that much more destructive. However, I have found that a willingness to become personally involved by the attorney will often "pour oil on the water" and keep things from leading to a bad conclusion. Usually this involves writing a personal email to the overseas party explaining the facts of her/his case and how it effect the time to process. Sometimes a personal conference call is helpful as well and I am always happy to do it. We want a good result and "happy campers" at the end so a little extra effort is definitely worth it!...more later.

Ever hear of a black hole? It is an entity in space which is so dense that anything which goes into it, even light, will never be seen again.

This reminds me of a process called "administrative review" which is the black hole into which a fiance visa (K-1) is placed when sent from the overseas consulate back to the USCIS in the states when the consular official decides that the original USCIS approval is flawed in some way and needs a second look. The visa file goes back to the US and disappears into a black hole of administrative processing and review never to be seen again (CR-1/K-3 marriage/spouse visas are also subject to this vanishing act, though not as frequently); months if not years often go by with no word other than "...its in processing". The paper backlog at the USCIS is the suspected culprit, and often a stalled petition or other documentation can only be retrieved through draconian actions.

In a recent case paperwork in this "black hole" could only be retrieved by resorting court action. http://j.st/P4o Hector Valencia has a deportation hearing June 11. But before he faces an immigration judge, he wants a copy of his complete immigration file to prepare his defense. Good Luck! His attempt to get the documents from the U.S. Citizenship and Immigration Services under the Freedom of Information Act hit a wall, so his lawyer had to ride to the rescue and he has asked a federal court to compel the agency to provide the documents. Can even a federal court order be stonewalled? We'll see... In many cases the hapless visa petitioner, with no right to appointed counsel, does not have the wherewithal to seek these remedies and may just have to abandon his petition and years of work and start over. Procedural time limits, and the funding to make them work, are not only fair but needed NOW.

More Later...

Well, you can't have it both ways. Workers, especially skilled workers, are needed and needed now. While the husband or wife of a US citizen can assume a new legal status in a matter of days by adjusting their status and going to the head of the line for their green card, persons in other classifications in the past had to jump through endless hoops and wait months or years to even get a shot at it. Even other marriage based visas (K-1/fiance or CR-1/marriage can take many months and a substantial amount of paperwork.

Amazingly enough the U.S. government is responding to industry's needs.

Manufacturers want the immigrant visa program to work for them, so earlier this month, the U.S. government began accepting applications for an immigrant worker visa program designed to counter fluctuations in the high-tech workforce. But experts say it could be used to solve Southeast Michigan\'s immediate need for skilled laborers. The current H-1B visa program is too rigid to fill that need, said David Koelsch, associate professor of law and director of the immigration law center at University of Detroit Mercy.

Will this effort survive the cries for tougher immigration policy in this election year. We'll see...

In a recent New York Times article (see March 7, 2012 Cuomo and G.O.P. Quiet So Far on Tuition Aid for Illegal Immigrants (N.Y. TImes) (adjustments of status and green cards) it is highlighted how gingerly our politicians, even liberal ones such as Governor Andrew Cuomo, are treating immigration issues in general and the financial impact (some would argue benefits) of the undocumented immigrant.

The conservative would frame the question as "should real US citizens pay for medical care, schooling, etc. for the undocumented?".

The liberal would frame the question as "why should we deprive those who have done nothing "wrong" themselves (in this case children brought to this country illegally) from access to intrinsically important, possibly life changing, government services? Or possibly, "we are all God's children".

With immigration still a contentious issue around the country, Gov. Andrew M. Cuomo and Republican lawmakers have maintained a noticeable distance from New York State proposals that would make financial aid available to illegal immigrants at colleges and universities.

As noted in an earlier blog, the concept of "fairness" is central to our values as Americans. This question begs for a "case by case" analysis. As a nation of laws, including immigration and or tuition laws, we cannot afford (either in a moral sense or a financial sense) to have those who willfully flaunt our law be given benefits simply because they are here.

However, if reasonable verification is provided that the undocumented immigrant was, through no fault or choice of his/her own, brought to this country where he/she behaved reasonably as a citizen, then law and fairness should dictate that that person can compete on a level playing field for benefits such as tuition help. Right?...I think so but it will take strength of will (read political guts) for those allegedly in charge to implement a system to achieve this goal. Not so easy when you are directly impacting your constituents pocket books!

The Bible, among other things, posits the question should the sins of the father (or mother) be visited upon the son (or daughter). A conundrum which just cries out for solution is that of the minor child who is brought into the US illegally by the parent(s) who is also entering illegally. The problem is, of course, compounded when the child has been in the US for many years, gone to school and the prom and in all other relevant ways acted as a US citizen/young person only to find out at some advanced stage of "young person hood" that he/she is subject to removal and can no longer play the game

Our country is founded on the premise that the result of our government and laws should, in the end, be "fair". While what is fair is in the eyes of the beholder, as a community we define fair in our compact of laws and our willingness to obey then (or have them enforced).
In a recent American Bar Association article (see March 7, 2012 CUNY Law Grad Reveals Undocumented Status, Fears He Can't Practice Despite Passing NY Bar (ABA Journal) A 28-year-old Mexican immigrant who graduated from law school at the City University of New York and passed the state bar exam in November fears he will not be able to practice law in New York because he was illegally brought to this country as a 5-year-old child by his mother.

This sort of block to the pathway through our society is unfair on its face, but it is the law. Can it/should it be changed so our budding lawyer can adjust his status have a green card, and practice his craft in peace, (or raise legal hell if he so chooses?). What are the other considerations besides just fairness?...more on this later.

What was good for Perry Mason (for those of you old enough to know who that is...if not, Google it...he was a TV lawyer who never lost) is good for us immigration guys. He always told the truth.
Most people who want to bring their loved ones here with a K-1 fiance visa or marriage visa or to keep them here with an adjustment of status have not done this before. They have been doing a good deal of reading on the net and have decided that they would like to look into getting a lawyer to assist since they are getting conflicting information, some many years old, and it is confusing; so they start to "Shop Around". They call many lawyers advertising on the internet. Sometimes they get through to the attorney, sometimes a paralegal and sometimes not at all.
The policy of my office is to try and always answer the phone myself if at all possible (the sound of shock at having a real live lawyer answer is worth the trouble), and to try and provide some valuable information to the caller who has taken their time to call me. What are some of the questions we most frequently hear?
#1: Having seen our site, with the prices out front, I am asked "how can you offer quality professional services at that low price?" They have been shopping lawyers and have seen pricing ranging from many thousands of dollars down to perhaps a couple of hundred bucks (usually a form mill). I suggest that the potential client inquire of those they talk to about what type of office they have. Is it full of large, leather (read expensive) sofas and paralegals (doing most of the work) (read high overhead) or at the other end of the spectrum do they just send you some forms. Is the lawyer directly available to you. Is there an extra charge for "lawyer contact", is contact limited, etc. You are shopping for value but you don't want to sacrifice quality in this, one of the most important "legal actions" you will ever take... More questions to help you "cull the heard" shortly.

I get a lot of calls in my office. I do primarily internet advertising and people call from my web site. In almost all cases I answer my phone (or call back quickly...to ring my own bell) and have a discussion about a client's particular case issues and offer information. Being internet based, and having a net focus of K-1 fiance visas and CR-1 (formerly K-3) marriage visas and family related adjustments of status, I often talk to the client who has been on the net for hours or days "shopping around". Assuming they have been able to even talk to the attorneys they have called they have found wide differences in costs and the level of service, and have developed a kind of "check list" for the discussion. I can always tell when a potential client has been shopping as a couple of questions are always asked. The 100% Quandary: "what is your success rate" is a very common question. Well, I tell them, "anyone who says they have a 100% success rate is blowing smoke (to put it nicely) at you." Stuff happens. Even assuming that the attorney is experienced, competent and cares (I like to think that is my case...there is that bell again) things such as inaccurate reporting of income, forgetting to get divorced from an earlier spouse, serious criminal records, illness, etc. may all effect the time and viability of the petition and may be beyond the "repair" of even the best immigration attorney...there goes the 100% despite your best efforts. I would be really skeptical of anyone who tells you...100%. So, what are other good questions?...more later.

One of the most common questions asked is "why is this taking so long. When one wants to bring his or her spouse to the US with a CR-1 Marriage visa or your future wife or husband (fiance) with a K-1 fiance visa or even just keep a loved one here with an adjustment of status it can seem like a million years goes by before you can get it done. However, do not feel like the Lone Ranger, as this is true of many types of immigration, including obtaining citizenship status. Consider this horror story:

Twenty-one years after he set foot in the United States, Facebook engineer Wei Zhu was overjoyed to take his oath of citizenship Wednesday at a special Silicon Valley immigration summit. But why, he asked, did becoming American have to take him two decades? The path for me to become a citizen was really too long. It really shouldn't have to be this long, said the 39-year-old Cupertino engineer, one of the brains behind the social network's Facebook Connect application.

So, what can make it better? The USCIS is really no help. While they post your case status on their web site months and months usually go by with nothing noted except "in process" or some other inanity. Call customer service? Good luck with that endless phone tree.

Well, I hate to say it, (I don't really) an attorney's assistance may be your best bet. He/she will make sure that your filing is correct. If he/she knows what they are doing they will make sure that your forms are not only correct, but that you have presented the proper and complete "picture" with you petition to avoid THE DREADED RFE (request for further evidence). Should you mess up when filing yourself (or your less than experienced attorney does) this could set you back many months in a already long process.

Contrary to popular belief an attorney can be a good thing; but SHOP AROUND. Prices, competency and other factors can vary widely...more on this later.

A North Carolina man recently highlighted what many feel is an injustice for many potential students who, through no fault or action of theirs, and after our K-12 education system has given them the expectation of an affordable higher education in their home state, are, in many cases, "priced out of the market" when attempting to enter their local college.

A Winston-Salem man wore a graduation gown and a mask Wednesday. Why, you ask? While this may or may not be unusual in Winston-Salem, read on...

Speaking in front of about 50 people during a meeting sponsored by the Latino Club at Winston-Salem State University, he said his parents brought him to the United States when he was 8. He attended elementary, middle and high school in Forsyth County, but college is out of reach because he must pay out-of-state tuition as an immigrant who is not authorized to be in the U.S. So, what is his path to higher education. He could marry a US citizen, apply for a marriage visa or enter some other category and attempt an adjustment of status (a path not likely to be successful) or just give it up. Since one cannot turn on the "tube" without hearing about the benefits to our state, nation in general, and economy (to say nothing of the student) of a higher education, both short and long term; it would seem to me to be very short sighted to put up unnecessary and unfair barriers to higher education before exactly the sort of person we are trying to reach and empower. ...more later.

Oh yes, the young man, to the shock of many, pulled off the mask saying "I am Angel Fuentes and I am undocumented"...now what? We shall see.

While federal efforts to fix our broken immigration system remain largely ineffective, at the state level, legislators are becoming proactive in expanding opportunity for all, both immigrant and native-born. Across the country, a growing and diverse number of forward-thinking state legislators are abandoning unproductive and economically unsound approaches taken by states such as Arizona and Alabama. Instead they are advancing inventive policies that make economic sense for states' bottom lines and uphold their reputations. One such approach, tuition equity, continues to gain political and popular support and build momentum in statehouses across the country.
Under current federal law, states have the option to enact laws that grant the same access to higher education for undocumented students as their U.S. citizen and legal permanent resident classmates. Fourteen states have already enacted such laws with several more poised to move this year. Only a month into the 2012 session, pro-active legislators have already introduced bills to increase access to higher education in five states including Colorado, Hawaii, Florida, New Jersey and New York.
Tuition equity laws expand educational access for undocumented and non-resident students but, importantly, also increase the revenue stream for state university systems--expanding the resources available for all students at a time when budget crunches loom. In Colorado, for example, proposed tuition equity bills will bring in over $2.8 million in increased tuitions within the state university systems next year.
So now the "push" of economics at the state and local levels may accomplish what our mired down Federal government representatives cannot and or will not tackle and solve. For documented or undocumented immigrants wanting to integrate into and contribute to the good 'ole USA this will become an increasing necessity as well as a benefit to the country at large with a projected two thirds of the projected areas of job growth requiring a college degree...more later.

While it is unfortunate, it occasionally happens that when the a potential spouse comes to the US on a K-1 visa the two parties (or at least one of them) just don't click like they thought they would and decide not to go on together as man and wife (as different situation arises if the spouse arrives on a CR-1 marriage / spouse visa...but more on that later.

Ok, so the two of them are not going forward as man and wife. The situation is quite different depending on if the parties have married within the 90 days allowed for this or not. A K-1 visa is good for 90 days from the time the fiance enters the US on the visa. It expires after that 90 days if the parties have not married. The fiance must also file for an Adjustment of Status / Green Card within that first 90 days. . Obviously, if they do not marry the visa will expire and the foreign fiance must return to his/her country. This is also true of any children who may have come with the foreign spouse on a K-2 visa (not marry, return...but you knew that)

But what happens if they do marry; then, for whatever reason, they decide not to continue as man and wife. What now? Can the fiance, now wife/husband stay in the US? Can he or she divorce and stay? Can he/she apply for Adjustment of Status, work and travel permits ? What if he/she is sponsored by the US citizen spouse and adjusts status to a green card, has work and travel permits, but now wants a divorce.

The difference for immigration law, as it so often is in other phases of the law, is in the parties INTENT; so its really a case of "nothing but the facts"...oddly, no one really cares about who is right, wrong, hurt or angry...just the facts. More about this sad development later...