Category: Adjustment of Status Application

Immigration Reform: Will Registered Provisional Status Lead to Permanent Residence?

Undocumented immigrants Senate Bill 744, otherwise known as the Gang of Eight’s Comprehensive Immigration Reform Bill was passed by the Senate Judiciary Committee and has begun debate on the Senate floor.  While debating the bill on the Senate floor, it is my hope that a special emphasis on the visa numbers is analyzed and discussed.  It is my opinion that the current Immigration system has been severely damaged due to the insufficient Immigrant Visa Numbers and the lack of available non-immigrant and immigration visa options.  Big picture the structure of the Senate Bill is fair and does address the current problem.  But as we all know the devil is in the details and the details that caused the current immigration problem should be analyzed, solutions proposed and debated.  In other words, does Senate Bill 744 address the causes of the current immigration problem?  More specifically, are there adequate visa numbers available to eliminate the backlog and allow the current undocumented persons in the US a realistic path to citizenship?  Does the comprehensive Immigration Reform Bill address the immigration needs of persons currently outside the US so that the lack of viable visa options does not encourage illegal crossing?  So much time is focused on ensuring a secure border, which is obvious.  However, there really would not be that much demand to cross the border illegally if there are fair and available visa options.  Its not like the people that crossed the border illegally are looking to break the law and not do things the legal way.  The overwhelming majority of people that crossed the border illegally had no other choice, since our immigration system left them with no options (i.e. family immigration backlogs with wait times of 20 years +, lack of skilled and unskilled worker visas, ambiguous investment visa rules, and the list can go on and on).  This article will address the Registered Provisional Status category, and whether the proposed visa numbers will effect the adjustment of status option from Registered Provisional Status to Permanent Resident.

What is Registered Provisional Immigrant Status?

There are an estimated 11 million undocumented aliens in the US.  This number could potentially be higher if you included persons that overstayed their visas and are living under the shadows.  These persons are unable to obtain social security numbers, driver’s licenses, legal employment, and live their lives as open members of their communities (i.e. unable to rent or purchase homes in their own names, have bank accounts, travel freely, etc).  The Registered Provisional Status is essentially equivalent to being a conditional resident, where undocumented persons that entered the US without inspection or have overstayed their visas and meet the eligibility requirements will be able to live in the US, work in the US, and take temporary trips outside the US upon being approved for their adjustment of status to registered provisional status.   To be eligible for Registered Provisional Status, one must have been in the US since December 31, 2011 (there are exceptions if travel outside the US was brief, causal, and innocent), have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes and penalty fees, and pass background checks. Under the Senate Bill, Registered provisional Status would allow the government one year to publish the required regulations before applications may be accepted.  So theoretically the Registered Provisional Status application process would begin within or after a year of enactment.  Upon approval of the Registered Provisional status application, the provisional immigrant will have RPI status for 6 years and may be renewable for another 6 years provided the Immigrant has been employed continuously or can prove income or assets of 100 or more of the poverty guidelines (certain exceptions may apply).  As specified above, the Registered Provisional Status is only provisional immigrant status, it is not permanent residence.  If the provisional immigrant wants to live in the US permanently, a permanent residence application will be required.

When can a Provisional Resident Apply for Permanent Residence

The main concern of the Senate is that undocumented aliens do not jump ahead of others currently waiting for an Immigrant Visa or Permanent Residence.   To be eligible for permanent residence, the intending Immigrant must have been in Registered provisional Status for at least 10 years.  In other words, if Registered Provisional Immigrants are to obtain Permanent Residence, all of the people currently waiting in line must have received their permanent residence or at least their cases have been adjudicated.   And this is where my main concern exists.  For example, unmarried Sons and Daughters of US Citizens from Mexico (the first preference of the family based immigration system) currently have a 20 year wait time.  EB3 (Skilled Immigrant Visa workers) applicants from India currently have a 10 year wait time.  Each year these backlogs keep getting worse each year.  The Senate Bill as written intends to continue to cap the amount of Family based Immigrant Visas available each year at 480,000 (minus the visas assigned to Immediate Relatives but not less than 161,000  ie. US Citizens spouses or parents of US Citizens over 21).  Moreover, the currently available 140,000 Employment Based Immigrant Visas will not be increased under the Senate Bill.  The issue becomes, since the Senate bill does not intend to increase the amount of available Immigrant Visas this year, how can the Comprehensive Immigration Bill reduce the current backlog?  I don’t pretend to be a statistician, I am an Immigration Lawyer and as an Immigration Lawyer, I focus on understanding the United States Immigration Laws and applying the law to best achieve my clients’ goals.  Understanding statistics is not taught in law school, consequently is not part of the training to become an immigration attorney.  But, I will do my best to present the data so that you can decide for yourself whether Registered Provisional Immigrants will have the opportunity to adjust status to permanent resident status and eventually naturalize under the Senate’s proposed Comprehensive Immigration Reform bill.  As of November 2012, the Department of State reported there are 4,412,693 persons on the Immigrant Visa Wait List.  The per country limit on preference related Immigrant Visas is 26,600.  On the wait-list, there are currently 1,316,118 persons from Mexico, 462,145 persons from the Philippines, 332,846 persons from India, and 240,637 persons from China.   For the detailed breakdown, please see here.  The Senate bill’s answer to eliminate this backlog is to eliminate the country cap limitations.  In other words, there will not be any increases to the amount of Immigrant Visas from the current level but a reallocation of Immigrant Visas on an as needed basis.  So on the surface it seems unlikely, but again I am not a statistician.  The purpose of this article is to raise awareness for the debate to include testimony from trusted mathematicians or statisticians in whether it is not only possible, but highly probable that based on historical data the backlog will be reduced by 2021.  Surely as an Immigration Lawyer I am not trained for this and I highly doubt an average Congressman can make the necessary projections.  The available Immigrant Visa numbers should be supported by sound math and statistics based on sound data.  I don’t know how to go from a wait list of 4.4 million to 0 in 7 years with only 300,000 available Immigrant Visas (ie. 160,000 family preference Immigrant Visas + 140,000 Employment Immigrant Visas).  This is an important issue, because it is great that the Senate is trying to address the problem and at least for 10 years 11 million+ people without status will have status, but Provisional Status is only good for up to 12 years, is my understanding.  300,000 multiplied by 12 years is 3.6 million.  It is closer to the current 4.4 million on the waiting list but keep in mind, if 11 million people apply for Registered Provisional Status and eventually adjust to permanent resident status and there are only 300,000 Immigrant Visas available each year, and there is still a backlog, where do the available visa numbers come from?  Again I am not a statistician but rather an Immigration Lawyer doing simple math.  I don’t pretend to know if my math is correct, but it should be something debated in the senate.  Providing Registered Provisional status to the current situation is significantly better than doing nothing but if the math is correct, it’s like a doctor giving his patient a cure for 12 years as opposed to a cure for a lifetime.  The Senate has this chance to fix a problem  for good, will they give the patient any medicine, medicine for 12 years, or medicine for a life time. By Attorney Gerald Cipolla

Celebrity Immigration 101 – Divorce, EB1 Green Card, O-1 Visa

Russell Brand and Katy Perry’s current divorce and hypothetical effects on Russell Brand’s immigration status.  As we all know, Katy Perry is a famous pop singer and to my knowledge a US Citizen.  Russell Brand is an actor and comedian from England who married Katy Perry in October 2010.  The marriage attracted quite a bit of publicity as they are both young and famous in their own right and in their own country – United States and Britain.  So based on Russel Brand’s background as a foreign national in the United States, what immigration options does he possibly have? EB1 Extraordinary Ability Green Card Let’s assume that Russell did not file for a National Interest Waiver or EB1 based on Extraordinary Ability.  Whether Russell’s past performances are “extraordinary” is debatable.  However, as an immigration lawyer that works on all type of employment and family based immigration cases, I am confident of getting his EB1 Extraordinary Ability approved.  Even if the Examiner did not like Russell Brand’s past performances, given Brand’s starring roles in high profile movies such as Saving Sarah Marshall and Get Him to The Greek, and Arthur as well as his past awards including Best Live Stand Up in the British Comedy Awards it would be a strong case to prove that Russell Brand does have extraordinary ability as an actor and comedian. O-1 Visa On the other hand, marriage to a US Citizen is generally a smoother and quicker process provided the beneficiary/applicant is already in the US on a different non-immigrant status such as an O-1 visa or an H1B visa.  In Brand’s case, he would likely be eligible for an O-1B visa which is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.  In the event Russell Brand was on an O-1 visa, it would be important to make sure there are not any intent issues.  Although O-1 visas do not statutorily allow duel intent, generally they do not require the Applicant to maintain a residence overseas.  So in effect, O-1 visas are thought to allow duel intent.  However, you need to discuss this with your Immigration lawyer before taking any actions such as adjusting status from O-1 status to permanent resident status. Adjustment of status from O visa to EB1, or Marriage based Green Card So let’s review, if Russell Brand was on an O-1 visa living in the US with his bride, Katy Perry, a US Citizen, what are his immigration options? 1. Do nothing, stay in the US temporarily on an O-1 visa making sure to comply with the requirements of the O-1.  This is assuming Russell Brand would not like to live in the US permanently; 2. If Russell Brand wants to live in the US permanently, file for an EB1 Extraordinary Ability.  This can be a rather involved process, however with Premium Processing it’s conceivable that the case could be approved within 15 calendar days.  Not likely as even the strongest of cases generally have requests for evidence which delay matters several weeks to months. 3. Marriage Green Card – Adjustment of Status Process.  The processing time for marriage green card cases, as an Immigration Lawyer that works on a lot of marriage green cards, my standard response is the processing time depends on the office adjudicating the case.  Since our immigration law firm is based in Chicago, I compare the Chicago USCIS office frequently which currently averages between 90 and 120 days. Removal of Conditions – Conditional Green Card Let’s assume that Katy Perry and Russell Brand wanted to proclaim their love to the US and decided to pursue the marriage green card (ie. conditional residency through adjustment of status).  And let’s assume that Russell’s case was approved in January 2011 since they married in October 2010.  Russell would be in an interesting situation.  Couples that are married less than 2 years receive conditional residency and need to apply to remove the conditions of the green card 2 years after approval.  So January 2013 would be Russell Brand’s deadline, and he could file 9 months prior to January 2013, around October 2012.  If he and Katy Perry are divorced and Russell Brand wants to live in the US permanently, what are his options? Removal of Conditions after Divorce 1. File an application to remove the conditions.  However, due to the divorce after issuance of the conditional green card, a waiver maybe needed to prove that Katy and Russell entered into their marriage in good faith and it just didn’t work out.  Essentially proving that they were in love and their original marriage green card adjustment of status case was not a sham marriage.  The waiver is a discretionary form of relief, so it is essential to submit strong evidence and be properly prepared by an experienced immigration lawyer.  Also, he would not want to have one of his past temper tantrums with Katy Perry and make sure he is on good terms with her so that maybe she will cooperate and support his waiver filing. 2. Given Russell Brand’s background as a top performer, he could just file an EB1 extraordinary ability.  He may want to file as soon as possible before the deadline to file the removal of conditions application just in case the EB1 extraordinary ability is not approved giving himself an opportunity to file the removal of conditions in option 1. A point of this article is that divorce can have a significant impact on a person’s immigration status.  And it’s wise to consult with an Immigration Attorney about the effects, pro’s, and con’s of various options that may be available.

Celebrity Immigration 101: Tiger Woods Ex-wife’s Immigration Journey!

In law school, we learn through case studies and from those cases we create hypothetical.  There is a lot of value in creating different scenarios and analyzing a legal situation from different angles.  Viewing situations from different angles due to different scenarios creates a strong understanding.  Going forward I would like to review current topics for foreign celebrities and do an analysis.  This should aid our readers in understanding immigration and perhaps get a better idea of their current immigration situation.

Tiger Woods

Tiger Woods’ ex-wife Elin Nordegren The first case study is Elin Nordegren, the former spouse of Tiger Woods.  As you know, Tiger Woods was the world’s number one golfer and may be among the best golfers that has ever played the game.  Tiger and his former wife Elin had an argument and Tiger Woods was found outside of his mansion wounded in his SUV.  There is speculation that Elin was chasing Tiger with a golf club.  I do not know the real facts or if this was true, there are different interpretations of what really happened.  However like in law school, let’s assume that Elin was chasing Tiger with a golf club and let’s take it further that Elin actually intended to strike Tiger Woods with the golf club and did actually strike him with the golf club.  Again these facts are just spin-offs for educational purposes. What if the Police arrived, and one of the Officers was a huge Tiger Woods fan and was very disturbed by this and did not take the time to get all of the facts.  What if the Police Officer actually arrested Elin Nordegren.  Based on the above hypothetical, the actions could be attempted homicide. J1 Visa | 2 year home residency requirement | Foreign Nanny I do not know Elin’s past immigration history but I do know that she was Jasper Parnevik’s (a Swedish golfer playing on the PGA Tour) former Nanny.   As you know Elin is also from Sweden.  So let’s assume that Elin was on a J1 visa when she met Tiger Woods. Time Out:  An important point for persons considering or already on a J-1 Visa.  J visas or Exchange Visitor Visas are for persons who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.  When a person enters the US to be a nanny, generally they are issued a J-1 Visa.  A common pitfall of a J-1 visa that many people do not know is that sometimes a J-1 visa is subject to a 2 year home residency requirement.  This means that unless the person is issued a waiver, they need to leave the US and spend 2 years in their home country after the visa is expired before they are allowed to pursue another US Immigration Status. J1 Visa | Not subject to 2 year home residency requirement | Marriage based adjustment of status | Marriage Green Card Let’s assume that Elin’s J visa is not subject to the home residency requirement.  She and Tiger fell in love (at least we hope), they married, and Tiger as a U.S. Citizen applied for Elin’s conditional resident status (conditional ‘green card”) via the adjustment of status application.  The standard for an adjustment of status case based on marriage to a US Citizen is showing the marriage is for love.  In other words, the couple has a genuine bona fide relationship in which they intend to spend their lives.  So let’s assume that Elin and Tiger married for love and Elin had a conditional resident status. Crime of Moral Turpitude issues Time In:  We assume that Elin was on conditional resident status, and she has been arrested.  If this were to happen, Elin could have had more problems than a divorce and an arrest.  When a conditional resident or a permanent resident (green card holder) is arrested, they need to really be careful that they are not convicted of a crime of moral turpitude.  This crime of moral turpitude can be a very sticky issue.  How do you define a crime of moral turpitude?  Well, that is a difficult task.  One court, Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), cert. denied 355 U.S. 892 (1958) has characterized moral turpitude as “a nebulous concept, which refers generally to conduct that shocks the public conscience.” Murder and serious felonies are of course crimes of moral turpitude.  So what if Elin were convicted of attempted murder.  Could this be a crime of moral turpitude?  Very possibly, yes.  Or what if Elin was convicted of attempted assault?  Would this be considered a crime of moral turpitude.  It really depends on the statue and the criminal disposition. Time Out:  If you are ever in this situation, it’s very important you discuss your situation with both a criminal lawyer and immigration lawyer and make sure they collaborate to give your case the best chance of not being a crime of moral turpitude.  What is the significance of a crime of moral turpitude?  Well, it could make you inadmissible and/or potentially removable and give you a date with Immigration court.  So if a person would like to stay in the US, it’s very important to understand the implications of a criminal conviction and how USCIS or an Immigration Court may interpret the criminal disposition. Divorce before green card conditions are removed |Removal of Conditions Waiver Time In:  Let’s assume further that Elin was not convicted of a crime and that her and Tiger Woods divorced, as they really did.  But let’s throw a hypothetical.  What if Tiger and Elin were married for less than 2 years when they divorced?  Well, when a US Citizen and a person that has entered the US legally adjusts their status to conditional resident status based on marriage to a US Citizen, the Applicant needs to apply to remove the conditions after 2 years.  Hence, their status was as a conditional resident.  The standard is whether the couple is still married and has a bona fide relationship.  If a couple divorces, the Applicant will likely need a waiver as they are not filing jointly.  The waiver must show that the parties entered into the marriage in good faith and the relationship was a good faith relationship.  At a minimum, the divorce, if occurring prior to the 2 years or removal of the conditions, would make Elin’s Immigration much more difficult, and at a minimum, more stressful. Again the above are just hypothetical to help our readers realize that outside circumstances can affect their immigration status and future immigration cases. If you have any questions about your real life immigration situation, feel free to contact Cipolla Law Group for a consultation.

What does turning 18 mean to you if you are an “alien” in the U.S?

Unlawful Presence – Enter Without Inspection One of the most frustrating things an Immigration lawyer can encounter are limited options for a client. As a Chicago based immigration attorney, I take my job very seriously and my heart is with our clients and their cases. A common story that we hear is: A client walks in the door, usually from Mexico, they were brought here to the United States illegally as an infant by their parents. The parents did not have a visa and were not inspected by a Customs Border Patrol Agent at the border. They simply sneaked across the border in some capacity and did not request entry with a visa such as a K1 fiancée visa, H1b visa, TN visa, or other common type of visa. So because the parents did not have a visa, obviously the child did not have a visa either. Years go by, the family lives and works in the US, the children go to school, make friends, have dreams, and all in all are living just like other Americans except they do so without a legal status and constantly need to look behind their shoulder not get caught. They lose identity with their home country as America has become their real home. Then the child turns 18, and under current Immigration Laws, something magical happens. The child is now an adult. The significance of this is that unlawful presence starts to kick in. The rule is if a person (a.k.a. alien) stays/lives in the United States without any valid visa for a certain period of time or enter the United States without inspection at the border, he/she has committed “unlawful presence”. For a hundred and eighty (180) days and less than a year of unlawful presence in the U.S., the alien is subject to a 3 year bar from entering the U.S. For one (1) year or longer of unlawful presence in the U.S., the alien is subject to 10 year bar from entering the U.S. Notice they are no longer a child at 18; they are an alien in Immigration eyes. I know that when I was 18, I was focusing on graduating high school, looking forward to college, training for a career, making new friends with the American Dream ahead. I would not have been conscience that because I turned 18 I am starting to accrue unlawful presence or some other type of law that might kick in. It is just not on the mind of an 18 year old, and really, why should it be. 3/10 year Bar Ok, but the story goes on. The child goes to school, works, does what other normal kids their age do. They might graduate college and then realize, uh oh, I don’t have authorization to work. Now what? Well, under current immigration laws they may be eligible for an H1B visa for them to work legally, but the old statutory bar (3/10 years) is going to kick in. So now they can’t work, at least legally. Or they may have already have been working, probably under a fake social security number. Then they meet the person of their dreams, who is likely a U.S. Citizen. They may eventually have children, or their spouse may say, lets get you legal. Let’s get your citizenship, surely it’s only a matter of filling out some forms. Well, not so fast, they are not eligible for a marriage green card or adjustment of status, well they may be eligible but they’re not admissible, due again to you guessed it, the statutory bar based on the “unlawful presence” inadmissibility ground. Immigration says, well you shouldn’t have been in the US to begin with, like a child is going to be say, hey Mom and Dad, please don’t take me across the border. Or like the child is going to say at 18, alright Mom, Dad, family, friends, I’m going back to Mexico. I have no family or friends back there, no job, no school, but maybe see you sometime in the future. I’m not quite sure if I can make it back in the US to see you, and if you want to stay in the US you definitely can’t leave to come and see me. Extreme Hardship Waiver I-601 application So, after living some version of the above description, the Alien may come into our office and say, what kind of forms do I need to prepare. Let’s assume that they married a US Citizen. We would ask them a series of questions, ask if anything has ever been filed for them in the past. Likely no. We then suggest, well you might be eligible for an I-601 Extreme Hardship Waiver. We have to prove that it would cause “extreme hardship” for the US Citizen spouse to leave the US and go to your home country, likely Mexico. The test in so many words is, the more complicated your life, the less likely you’re going to be able to just leave, hence, extreme hardship. But here’s the catch, if USCIS does not agree that you have extreme hardship, whether you are in Mexico or we file here in the US (i.e. if the new proposed I-601 procedural law regarding Waiver of Inadmissibility for Unlawful Presence passes), you’re likely going to be separated. So we can’t really blame. The blame game So who can we blame? Can we blame the parents for taking the child in the US illegally? Maybe, yes likely a little bit. As desperate as their circumstances may or may not have been, they did break the law. If I were in the same situation, I may have broken the law as well. As an Immigration Lawyer, I don’t want to condone breaking the law. It also undermines people that make the effort to try and comply with the law and do things the right way. However, what if these persons have no alternatives, again, I might do the same thing if I had no other options. We definitely can’t blame the child who now turned Alien as mentioned earlier. Can we blame Congress? Yes, definitely. Should there be a Dream Act? Maybe. Should there be a guest worker program? Maybe, more likely yes. Would the current laws such as H1B Visas, E1 or E2 visas still be available to these persons? Yes, they should be. And so should other great categories such as EB 5 Investor Green Cards, Marriage Green Cards, Fiancée Visas and other relevant family based green cards. This article is not proposing anything. My job is to be an Immigration Attorney, an advocate under the laws that exist. Congress on the other hand has the job of making laws, laws that are relevant for the times. So my opinion, congress gets my vote for getting the blame of not having relevant laws for the times.

Should We Apply for a Marriage Visa (K3), Immigrant Visa, Fiance Visa (K1), or Marriage Green Card & Adjustment of Status?

A common question we hear is, “what should we do, should we apply for a k1 fiance visa, k3 marriage visa, an Immigrant Visa, or marriage green card adjustment of status?” Our common response is, it depends on your individual circumstances. The first factor is under immigration law what the client’s are eligible for. For example, is the beneficiary in the United States on a valid visa, have they accrued unlawful presence, is the US Citizen overseas or in the US. This is the most important question so as to determine what the clients are eligible for. The second factor is when and where do the clients want to get married? If the fiancé is overseas, and they can wait the 6 to 12 months for the case to be adjudicated, then the answer is a fiancé visa is the appropriate visa. Alternatively, is the fiancé in the US on a valid visa such as a student visa or h1b visa? Then the clients may be able to file for a marriage green card and adjustment of status. Or in more complicated scenarios, is the client here on a tourist visa or a visa waiver. There are a lot of variables in marriage visas, fiancé visas, and adjustment of status cases. And the right answer generally depends on the clients individual circumstances. Feel free to contact us to analyze your case and determine if we can represent you in your marriage green card, fiancé visa, or adjustment of status case.