Tag: LPR

Can My Spouse Adjust if I am an LPR

If I am a green card holder, can my spouse stay in the United States if I file for adjustment of status for them?

Hi. I’m Jim Hacking, Immigration Lawyer practicing law throughout the United States out of our office here in St. Louis, Missouri. Every now and then, we come across a case where there’s a lawful permitted resident, let’s call him Juan, living in the United States.

Let’s say also that his spouse, Maria, happens to be in the United States, let’s say, on the student visa, so she is not a lawful permitted resident. She is just the spouse of a lawful permitted resident, and the question is, what type of status does Maria have to maintain in order to be able to stay in the United States.

Here’s the general rule. If you want to adjust your status, you need to be in valid immigration status at the time of your adjustment. In a situation like this, Maria would need to maintain her student status throughout the time the green card case is pending. The reason for this is that there’s a backlog on the processing of green card cases for the spouses of green card holders.

I know that sounds a little bit confusing but, basically, there are a limit on the number of green cards that are available in all kinds of green card categories, and that includes green cards for the spouses of green card holders. That is lawful permanent residences, husbands or wives.

That is the kind of thing that can screw people up because they assume that, once they file for the green card based on their marriage to a green card holder, that that allows them to stay in the United States. Some of this confusion comes from the fact that the spouse of a U.S. citizen who is out of status is allowed to adjust status.

The rules are different when you’re married to a U.S. citizen so, if Juan were already a U.S. citizen, then if Maria were out of status at the time that they applied for adjustment or at the time of her interview, that would be forgiven, the fact that she was out of status, but that rule only applies to U.S. citizens. That rule does not apply to spouses of lawful permanent residents.

That’s really where the confusion comes in. If you are married to a green card holder and if you want to adjust your status, you need to make sure that you find some valid status to be in and that you maintain that status both at the time that you file and at the time of your actual adjustment. In a lot of situations, that can be up to a year and a half or two years or even longer, depending on how many people are in line ahead of you.

This can be a really confusing issue. We’ve seen people screw it up. We’ve seen the immigration service screw it up so, if you have questions about how this works or about how we could help you with that, how you can go about maintaining your status, be sure to give us a call at 314-961-8200, or you can email us at info@hackinglawpractice.com.

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Thanks a lot, and have a great day.

Green Card Holders Barred From Enlisting in Army Reserve

A public affairs officer explained recently that “for the time being” green card holders are unable to enlist in the Army Reserve, but are not barred from enlisting in the army overall.  The officer claimed the change is because of a new Department of Defense policy that requires stricter vetting standards for green card holders and that background checks must be completed prior to green card holders shipping off for basic training.

The public officer made this statement in clarification of an email sent to Army recruiters from the chief of the Accessions Suitability Office Guard Strength Division that said, “EFFECTIVE IMMEDIATELY DO NOT ‘SHIP’ OR ‘ENLIST’ ANY FOREIGN NATIONAL’S (ALL 1-551 CARD HOLDERS) UNTIL FURHTER NOTICE.”

Army recruiters have been told to stop enlisting green card holders into the Army Reserve effective immediately, according to an email sent to military recruiters and obtained by Mic, a move that experts say breaks federal law.

The Defense Department’s chief of accession declared in a news release, “Effective immediately, all green holders must complete a background investigation and receive a favorable military suitability determination prior to entering any component of the armed forces.”  Prior to this policy change, green card holders were able to enlist and go to basic training as long as a background check had been started.

Due to a backlog of background checks, the new policy is expected to delay enlisted green card holders from shipping out to basic training for at least a year.

Green card holders are unable to enlist in the Army Reserve due to the change in policy because, according to the director of public affairs at the U.S. Army Recruiting Command, there is not a Delayed Entry Pool where enlistees can wait for background checks to be completed.

Federal law states that an “alien who is lawfully admitted for permanent residence” can enlist in “any armed force.”  Not allowing green card holders to enlist in the military would violate this law.

For more information, click here.

Indian Doctors Face Deportation Due to Paperwork Error

Two Indian physicians who reside in Houston, Texas, face imminent deportation from the United States due to a paperwork error.

Dr. Pankaj Satija is a neurologist who helped found the Pain and Headache Centers of Texas.  His wife, Dr. Monnika Ummat, have resided in the U.S. for many, many years.  Dr. Ummat is also a neurologist.  She specializes in treating epilepsy at Texas Children’s Hospital.  They are the parents of 2 U.S. citizens, 7-year-old Ralph and 4-year-old Zoeey.

The pair faced removal last week after immigration officials refused to extend Dr. Satija’s and Dr. Ummat’s temporary permission to stay in the U.S.  The decision by Homeland Security may cause dozens of Texans who suffer from neurological disorders to be without their doctors.

“I have 50 patients today and 40 patients tomorrow,” said Dr. Satija. “I’m just concerned they’ll be left in a lurch. They could land up in the emergency room.”

The Houston Methodist Hospital System sponsored Dr. Satija for a green card (lawful permanent resident status) in 2008.  Dr. Ummat would be eligible to adjust status as his spouse.  But because the couple are from India and because USCIS has a nearly decade-long backlog for Indian professionals to adjust status, they have not yet received their LPR status.

The couple regularly renewed their travel documents and work authorizations.  But last year, their permission to travel abroad was extended for only one year instead of two years, which had typically been what they received.  Later snafus by Customs and Border Patrol contributed to the confusion.

The couple never noticed the problem.  Then Dr. Satija’s brother called from India to tell him that their father had been admitted into intensive care and was gravely ill.  The entire family flew to India.

When they returned to the U.S., they learned that they had left the U.S. on expired advance parole documents (the formal name for the travel documents).

CBP allowed the couple to enter the U.S. on deferred inspection, which means they were allowed in but would have to explain how they believed they were entitled to stay at a later date.

When they brought their paperwork back to CBP, they were initially told that everything would be okay.  But the next day, they were told “[s]omebody up there has decided you have to leave the country in the next 24 hours.”

According to the Houston Chronicle, in two expansive immigration memos the Trump administration issued in February, it directed the nation’s three main immigration agencies to “sparingly” use the practice of parole, though it hasn’t yet detailed the new regulations.

At the end of last week, DHS did agree to give the couple another 90 days to try and sort out the situation.

This story demonstrates a few themes we talk about at the Hacking Law Practice on a regular basis.

First, it is absolutely ridiculous that we have an immigration system that takes nine years for a pair of super-qualified doctors from India to get lawful resident status.

Second, it is absurd that we are even talking about the possibility of deporting these people who serve sick Americans every day of their lives.

Third, immigrants are awesome and help this country every day.

 

Former Miss Universe Seeks Citizenship to Vote Against Trump

Former Miss Universe ‘who was dubbed Ms Piggy by bully’ Donald Trump becomes a US citizen just so she can vote against him

Presumptive GOP nominee Donald Trump is accumulating more and more opponents as November and it’s accompanying 2016 Presidential Election creeps closer.

Recently, Alicia Machado, the 1996 Miss Universe winner from Venezuela, announced that she plans to become a U.S. citizen for the sole purpose of voting against Tump. Ms. Machado has lived in the United States for a solid 20 years, however, it wasn’t until Trump declared his ballot that she took it upon herself to do something about it.

Her distaste for Donald Trump and his campaign is driving her determination to be more politically active this upcoming election. The hatred she has for Mr. Trump stems from a series of events that date back to 1996.

Not long after her impressive victory at the pageant as a 19 year old, Ms. Machado began to gain some weight, which Trump reacted to with verbal bullying and called her “Miss Piggy.” Not only did Trump verbally abuse her, but he invited media outlets to watch her exercise without telling her they would be there.

Questioned by reporters shortly following the abuse, Trump was quoted saying, “She weighed 118 pounds or 117 pounds and she went to 160 or 170. So this is somebody that likes to eat.”

Ms. Machado revealed that the continued harassment led her to suffer from multiple eating disorders for years to follow. He was also accused of calling her “Ms. Housekeeping” in front of crowds of people. These certainly add to the list of instances of Trump’s rude behavior towards females and Ms. Machado is taking a mature path that involves the the naturalization process to do her part in addressing it.

Ms. Machado will go through a naturalization process that consists of five steps. The first would be checking eligibility for citizenship, which includes the minimum age requirement of 18, lawful permanent residency, at least five years living in the U.S., and good moral character.

If these are satisfied, Ms. Machado or anyone else applying for naturalization, would complete an Application for Naturalization (Form N-400) and send it in along with the necessary documents and fees to the United States Citizenship and Immigration Service. The applicant is then interviewed to verify their genuine desire to be a citizen and moral character. The process proceeds with taking an English and civics test.

Assuming the first four steps are successfully completed, the applicant takes an Oath of Allegiance and becomes a citizen. With this process in mind, it doesn’t seem like Ms. Machado should have any trouble becoming naturalized and filling out her first American ballot.

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Can a conditional permanent resident file a petition to bring their children to the United States?

 

Can a conditional permanent resident file a petition to bring their children to the United States?
Yes.  Federal regulations hold that “Unless otherwise specified, the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents apply equally to conditional permanent residents, including but not limited to the right to apply for naturalization (if otherwise eligible), the right to file petitions on behalf of qualifying relatives, the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed; the duty to register with the Selective Service System, when required; and the responsibility for complying with all laws and regulations of the United States. All references within this chapter to lawful permanent residents apply equally to conditional permanent residents, unless otherwise specified.”  8 CFR 216.1
The exceptions apply to attempts by Conditional Permanent Residents to apply for spouses other than the one who is the source of their conditional residency.
Conditional permanent residents are able to petition for children on the same terms as any other permanent resident.  Conditional residents can file an I-130 at any time after receiving their LPR status.  They do not have to wait until having the conditions removed from their green card.

What happens if a dispute arises between the two spouses in marriage based green card case?

What happens if a dispute arises between the two spouses in marriage based green card case? Hi, I’m Jim Hacking, immigration lawyer practicing law around the United States and based here in St. Louis, Missouri.

Every now and then we get a call here at the office when trouble arises between a husband and a wife, what we’re talking about today are green card cases, places where the spouse has sponsored the non-citizen for a green card. A US citizen has the right to sponsor their husband or wife for a green card and sometimes those cases can take a long time. During the pennancy of the case, every now and then a dispute arises and the question is who does the attorney represent at that point.

Generally for an attorney to represent two people at the same time they both have to consent to the dual representations so, if the two parties are on the same wave length and have the same desires it’s perfectly acceptable for one attorney to represent a husband and a wife in a immigration case. We’re talking about he ethical rules related to a attorney representing both and then what happens if a dispute arises.

In a typical example the US citizen sponsors, the non-citizen for a green card in a case can take anywhere from 6 to 12 months depending on how busy the local office and how complicated the case is. Sometimes a dispute arises and the US citizen or the non-citizen wants the attorney to represent just them from that point forward. How does this play out?

We’ve actually had on two different occasions here at the office, a situation where our phone rings and it’s either the US citizen or the non-citizen and they want to talk to us about a fight that they’ve had with the other spouse. That puts us in a very delicate situation because as soon as a conflict arises between the two spouses it really ties our hands because we have to be very careful with what we disclose to the person that’s calling us and to the one who didn’t call us. We really don’t want to do anything to jeopardize the dual representation until such time as it becomes clear that the parties have irreconcilable differences and we won’t be able to continue anymore.

Because what has happened is the US citizen has called and said, “how do I do everything that I can to keep that no good spouse of mine from getting a green card?” Then shortly thereafter we get a call from the foreign spouse asking, “what can I do to keep my green card?” Whenever we have those conversations that puts us in a really tricky situation and if a client goes that far that they want our advice on how to thwart the objectives of the other spouse we have to recuse ourselves and we have to get out of the case. We’ll typically refer both the US citizen and non-citizen to two different attorneys, one each so that their interests can be protected because we can’t favor one client over the other. We can’t pick the US citizen over the non-citizen or do anything because we’re, we have a ton of information about the marital relationship and it wouldn’t be fair for us to pick and choose one spouse or the other.

If you are having conflicts with your spouse you need to be real careful with how you phrase it with your attorney and if, in fact things are irreconcilable your attorney is going to have to recuse himself and not represent either of you from that point forward. If on the other hand it’s just a minor blip and things are able to be worked out and nobody has soured the relationship or soured the relationship with the attorney, then the attorney should be able to keep on representing both sides. These are the kind of things to think about if you’re gong through a marriage based case, you want to make sure that your attorney represents both sides equally and fairly and that nobody gains the upper hand by trying to get the former attorney to represent just their interests. Because when the gloves are off and the couple’s fighting the interests do become very different, the US citizen typically wants to stop the process and to not sponsor the non-citizen anymore and the non-citizen wants to do everything they can to remain in the United States and keep the green card.

That’s the typical situation, keep the green card process going if they can. If you have any questions about this or if you have a questions about dual representation in the immigration context or what you should be thinking about when hiring an attorney. Give us a call at 314-961-8200 or you can email us at Jim@HackingLawPractice.com. Thanks.

 

 

USCIS prevented from arguing green card applicant was a terrorist based on prior decision

A federal judge ruled that the United States cannot deny an alleged former terrorist from changing his status from asylee to permanent U.S. resident.  

Mohammad Sher Islam fled to the United States from Pakistan in 2000.  His application for asylum was originally denied but was reversed and approved by the Board of Immigration Appeals.  In the United States, asylum may be granted to a person that suffered  “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The U.S. Citizenship and Immigration Service kept Islam from changing his status because he “engaged in terrorist activity.”

USCIS alleged that he had been involved in “Tier III” terrorist organizations: All Pakistan Mohajir Students Organization and Muttahida Quomi Movement-Altaf Faction.  The Immigration and Nationality Act contains provisions to prevent someone with that association from attaining permanent residency.  

Islam sued USCIS and the Department of Homeland Security under the Administrative Procedures Act in December 2014.  San Francisco’s Federal Court sealed the case on August 12, 2015.  

Islam claims that the issue of his alleged involvement with terrorist organizations was settled during his 2007 asylum hearing and that collateral estoppel prohibits the government from relitigating it.  

U.S. District Judge Richard Seeborg ruled in favor of Islam, “The central dispute between the parties is whether collateral estoppel applies to the issue of Islam’s involvement in terrorist activities.  An immigration judge’s decision to grant an application for asylum necessarily includes a determination that the applicant was not involved in terrorist activity prior to the preceding.”

Seeborg went on to say, “Collateral estoppel is triggered by the prior proceeding and, accordingly, plaintiff’s motion must be granted and defendant’s cross motion denied.  Because no exceptions to the doctrine of collateral estoppel apply here, the USCIS’s decision to deny Islam’s application for adjustment of status was arbitrary, capricious and contrary to law.”

The Board of Immigration Appeals had also found that Islam had not been involved in any terrorist activity.  

 

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