Austin Immigration Lawyer Blog

As an Austin immigration lawyer, I know that most people are interested in expediting their case. Inevitably, clients will ask if anything can be done to make the process faster. For business immigration cases, there is of course the option of using USCIS's priority service. For $1,225 one can request premium processing. This means USCIS will respond within 15 days. It does not mean you will absolutely have a final answer on your case within 15 days, but they will reply within 15 days either approving the case or asking for additional evidence. Premium processing is not offered for family-based immigration cases such as fiance visas, marriage-based adjustment of status, or naturalization cases. It's also not available for U or VAWA cases, among others.

So what can your immigration attorney do for you to help expedite your case? expediting your case of course requires at a minimum that you hire an attorney with experience in the type of case you qualify for. This will reduce errors and prevent immigration from sending lengthy requests for additional evidence. But your attorney can also make a formal request for your case to be expedited.

Everyone is in a hurry to get their immigration case results. However, expedite requests are reviewed on a case-by-case basis by USCIS and are granted at the discretion of the Director. The applicant (You) have the burden to demonstrate your need to expedite. USCIS looks at several factors to determine if it will grant the expedite request. Among them are consideration of an extreme emergent situation, humanitarian situations, compelling interest of USCIS, severe financial loss to company or individual, or a USCIS error, among a few others.

Expedite requests can be done by contacting the National Customer Service Center, by visiting your local USCIS office, or writing a letter to your local USCIS office.

Continue reading "So You Want To Expedite Your Immigration Case? " »

As an Austin immigration attorney, I know that immigrating to the U.S. can often be a stressful process requiring patience and the assistance of family, friends and a skilled immigration lawyer. The fear of not meeting the U.S. Citizenship and Immigration Services' ("USCIS", formerly "INS") requirements, thus causing potential delays or rejections of permanent residence status, is enough to scare most people into making sure they follow the appropriate guidelines. The USCIS requires applicants to translate certain foreign documents into English. To help guide you through the process, FoxTranslate, a provider of immigration document translations in over 30 different languages, offers answers to the mostly commonly asked questions related to immigration document translation.

Top Five Questions on Immigration Document Translation

What type of translations are required by USCIS?
The USCIS requires applicants to submit a certified translation with documents that are in another language. The hallmarks of a certified translation that is deemed acceptable by USCIS include two certifications:
The translator must certify that he or she is competent to translate the document
The translator must certify that the translation is accurate
In addition, the translator should include his or her name, signature, address and the date of the translation.

What are typical documents that USCIS wants translated?
Documents requested will depend on the visa application. However, common documents include biographical documents such as a birth certificate, marriage certificate or adoption documentation. For a larger listing and details, visit the State Department site.

Does the USCIS require the original translation?
The USCIS has explicitly stated that they no longer routinely require submissions of original documents. A reason for this is the USCIS no longer returns original documents.

Does the USCIS require notarization of translations?
No, the USCIS does not require a notarized translation. The USCIS has clearly stated that they just require a certified translation. There are many misnomers as to the different translation types. A notarization translation does not offer additional assurances of translation accuracy; a notarization is merely a certification that the translator translated the document.

Can I translate my own document?
The short answer is yes. This may surprise many people but if you're going to translate your own document, we suggest you proceed with caution. Two impeding factors are:
You need to be proficient enough in your native and English language
These are sensitive documents for an important process and you don't want your USCIS case reviewer doubting the authenticity of your application because of a suspicious translation of requested documents.

Continue reading "Top Questions Related to Immigration Document Translation " »

President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act (AWA), which amended §§101(a), 204(a)(1)(A) and 204(a)(1)(B)(I) of the Immigration and Nationality Act ("INA") to prohibit United States citizen or permanent resident petitioners convicted of a "specified offense against a minor" from filing a relative petition for any beneficiary. The only exception is if the Secretary of the Department of Homeland Security ("DHS") determines in his or her "sole and unreviewable discretion" that there is no risk of harm to the beneficiary or derivative beneficiary.

As an Austin immigration attorney, I am well aware of how challenging these cases can be to win. Often, clients come to my office after their case has been denied by immigration and frequently I am the last stop before they give up trying to get the case approved.

This post is meant to provide general guidance for Adam Walsh immigration cases from the perspective of an Austin immigration attorney. Above all, I encourage you not to give up. The right lawyer makes a huge difference in the approval rates of these cases. Adam Walsh petitions require a legal brief and legal analysis to be written using case law to back up the arguments. These petitions require affidavits and letters of reference from several resources. Adam Walsh petitions are indeed very complex, time-consuming, and lengthy cases. Despite all of that, these cases can be successful if you hire a lawyer who has experience and is willing to dedicate the time and effort to fight for your case. With most clients that come to see me, they have very limited options. Often times, an individual has a sexual assault charge that is 10 + years old, later in life marries, has children, and if the spouse is born abroad, USCIS (immigration) can create considerable obstacles for the family to be able to live within U.S. borders. It is ironic that a law that is meant to protect people can in some cases cause more harm than good. For example, we recently had a client who was charged with sexual assault of a minor because when he was 18, he had consensual sex with his girlfriend, who was 17 at the time. When the girlfriend's parents found out that their seventeen year old was sexually involved with our client, they called the police and he was charged with sexual assault of a minor. Thirteen years later, when he was thirty-one years old, he met and fell in love with a foreign national. They were married and had three daughters. The Adam Walsh Act prevented this client from being successful in the filing of a relative petition for his wife (without a legal brief and considerable fight). The same law that is meant to protect in this case, failed to protect this family that wanted to be together in the United States.

One of the most difficult tasks in an Adam Walsh case is that the Petitioner must prove that he or she will not pose any harm to the beneficiary. This is oftentimes more difficult to do than what it sounds and requires proof that the Petitioner has been rehabilitated. This can be accomplished by showing and submitting records, such as evaluations by mental health professionals and affidavits from friends, family, and the beneficiary. The standard used by the USCIS adjudicator is "beyond a reasonable doubt" and if this standard is not met, the Adjudicator must deny the case.

Continue reading "Adam Walsh Act Cases: A Challenge, But There Is Hope " »

The purpose of this post is to provide general answers to common questions I receive about the E visa as an Austin immigration lawyer.

What is an E-2 visa and how can it help me develop a business in the United States?

The E category is especially useful for managers, business owners, and employees who need to remain in the United States for extended periods of time to oversee, supervise, or work in a business that represents a major investment in the United States. Most people know about the EB-5 investor program, where a potential investor can invest a million dollars or in some instances a half a million dollars and obtain permanent residency. What many people do not know is that you do not need a million dollars or even a half a million dollars to get a visa that allows you to work and live in the United States. The E-2 visa can be used by investors who want to remain the United States for purposes of overseeing that investment. An E visa lawyer that help you determine what E visa is right for you.

What is the difference between the E-1 visa and the E-2 visa?

The E-1 visa is typically for purposes of conducting trade between the United States and a foreign country. The E-2 visa is for overseeing investment in the United States.

Can anyone apply for an E-1 or an E-2?

No. The E visa is only available if a Treaty of Commerce and Navigation or a Bilateral Investment Treaty is in existence between the United States and the foreign State (except for Australia and Sweden, which are covered without a treaty). The U.S. Department of State publishes a list of treaty counties and what categories they qualify for.

How much money do I need to invest to qualify for an E-2 visa?

It depends on the type of business you are investing in. There have been cases won with as little as a $50,000 investment, although most businesses invest an average of $100,000. The investor is required to make a commitment of funds that represents an actual, active investment. Passive investments do not count. Meet with an E visa immigration lawyer to get more details on active versus passive investment.

Is the E-1 or E-2 visa a path to citizenship?

No. The E visa does not lead to permanent residence. However, the E visa can be renewed almost indefinitely. Typically, the initial period of stay granted for E visas is 2 years.

I am already in the United States on a different visa. Can I change my status to E-2?

Yes. This is possible for certain people. However, people who have entered the United States using the Visa Waiver program, will not be able to change status within the United States to E-1 or E-2. They are however able to pursue the E status from the U.S. embassy in their home country.

I do not have a business set up in the United States, I do not have an LLC or a Corporation, but I am interested in the E visa. Can you help me set up my business?

The Lyttle Law Firm, PLLC partners up with another firm in Austin that will help you set up an LLC or any business structure of your choosing. They can also help you with drafting of by-laws, to get a Tax ID number, and even to draft a business plan. This is an advantage because both the immigration attorney and the business attorney must work together and share information to pursue the E visa.

Continue reading "Immigration Options for Entrepreneurs: Frequently Asked Questions About The E-2 Visa " »

This post is meant to answer some of the most common questions I get as an Austin immigration attorney in the topic of green card renewals.

When should I renew my green card?

You may renew your green card up to six months in advance of the expiration of the card. Failing to renew your green card may cause you difficulties in obtaining employment and will absolutely cause problems when you try to re-enter the United States after traveling abroad. Although you may renew up to 6 months in advance, it is not required. You may choose to renew 2 months in advance instead. It is always best to renew before the card expires.

As an Austin immigration lawyer, the most frequent question I get asked is: Will I lose my permanent resident status if I fail to renew my green card?

There may be other reasons that may cause you to lose your permanent resident status. But failing to renew your green card alone is not a reason to lose your status. However, you are required by law to carry proof of your permanent resident status at all times, and it is always best to renew your green card as quickly as possible.

What happens if my green card expires while I'm waiting for USCIS to process my green card renewal petition?

You will not be able to travel abroad on an expired green card. However, after you attend your biometrics appointment (required for green card renewals), you can make an Info Pass appointment at your local USCIS office and ask for a temporary green card to be stamped on your passport or request a temporary document showing proof of residency to allow you to travel abroad. You will not be able to travel with the USCIS receipt letter alone.

What happens if I need to renew my green card but I can't afford to pay the fee required?

If you can't afford to pay the renewal fee, you can ask USCIS to waive the fee. To ask for a waiver, you will have to submit evidence of your need for a waiver of the fees. There are no clear rules on who qualifies, but you'll have the best chance if you provide a letter and evidence explaining the need.

What should I do if my green card is lost or damaged?

If your green card is lost or damaged, you should file a petition for replace the green card.

I am a permanent resident. How long can I stay out of the U.S.?

As a green card holder, you are entitled to travel. However, there are limitations for how long any given trip can be. Generally, trips that will last about a year will require a "Re-Entry Permit." The Re-Entry Permit will prevent you from loosing your permanent resident status. However, long trips outside of the United States (especially those lasting more than 6 months) will affect your ability to apply for naturalization and become a U.S. Citizen. Some permanent residents may be able to file a petition to preserve residence for naturalization purposes. If you plan to take lengthy trips outside of the U.S. while you have permanent resident status, you should meet with an immigration lawyer before your trip abroad.

Understanding the consequences of travel and the terms of your permanent resident card will avoid costly, stressful, and time-consuming issues in the future.

Continue reading "Green Card Renewals: Answers to Common Concerns " »

The U nonimmigrant status is a nonimmigrant (temporary) status that allows non-citizen victims of crime to stay in the United States, obtain employment authorization, obtain permanent resident status, and help certain family members obtain immigrant status as well. As a U visa attorney, I screen all of my clients for the possibility of qualifying for this unique immigration benefit.

What makes the U visa a unique option is that it is available for victims of crime regardless of their current legal status or how they entered the country. It's also available to those who are involved in deportation proceedings.

Although this immigration benefit is commonly referred to as a "U visa" most clients who are in the United States and qualify will not receive a U visa, but rather, they will be considered to be in U nonimmigrant status. This distinction is important because U nonimmigrant status does not allow people to travel. Visas are needed to travel.

U visa lawyers are normally looking at several factors to determine if the client qualifies for U status. These factors include:

1. What is the criminal activity and does it fit the U petition requirements?
2. Has the person suffered substantial physical and/or mental abuse?
3. Has the person been helpful, or will the person be likely to be helpful in the criminal investigation and prosecution of the person who committed that crime?
4. Did the criminal activity violate the laws of the United States?
5. Is the person admissible to the United States?
6. Did the crime occur within U.S. territory?

U visa status is available for both men and women. In fact, our law firm has successfully won cases for male clients. U status is granted to individuals who suffer from a variety of crimes -- it is not limited to victims of domestic violence.

One of the most difficult aspects of obtaining a U visa is that, unlike VAWA cases where individuals can self-petition, the U visa requires certification from a third party. This certification must be included in the petition and must come from a federal, state, or local agency. Individuals who may do this certification include Judges, law enforcement agents, and prosecutors. The certification must state that the individual seeking U status has been helpful, or is likely to be helpful in the criminal investigation or prosecution of the person who committed the crime. When looking at your immigration options, consider meeting with a lawyer who has experience in U status cases. The U status option is often overlooked by lawyers who do not normally practice in this area of the law but can offer a life-changing benefit to you if you qualify.

Continue reading "Options for Victims of Crime: The U Visa " »

As an Austin immigration attorney, I am often asked by my clients about immigration reform. I would not call Homeland Security Secretary Janet Napolitano's statement on Thursday a "reform," but rather, I see it as very narrow, positive policy.

Ms. Napolitano announced that the U.S. Department of Homeland Security will be re-shifting its focus. The emphasis will be on deporting illegal immigrants who are criminals or those who pose a threat to national security or public safety.

Approximately 300,000 cases pending in immigration court will be reviewed on a case-by-cases basis implementing this new standard. Those cases that are considered "low priority" are the ones most likely to benefit and may be administratively closed.

This new policy does not provide immigrants with a path to permanent residency. However, those who get their cases administratively closed would have the opportunity to apply for a work permit. Work permits are only temporary and do not grant any immigrant status or even the ability to travel.

Austin immigration attorneys have expressed concerns about the community possibly mistaking this policy as a type of "amnesty." The policy that will be implemented is not an amnesty program. There is also no guarantee that any case would be considered low priority, and therefore, people should be very careful in how they interpret this new announcement.

Again, the new policy is not amnesty, does not grant legal status, and is not something people can sign up for. It only applies to those in deportation proceedings. The new policy will concentrate on reviewing cases that are already pending and the August 18th announcement is preliminary in nature only.

This new policy is a temporary decision focused on preserving limited government resources by deporting only those who are not considered to be low priority. Who is or is not to be considered "low priority" will be determined by looking at the totality of the circumstances.

Continue reading "Those with No Criminal Background no Longer a Priority for Deportation " »

As an Austin immigration attorney, I applaud The Heartland Alliance National Immigrant Justice Center's efforts in filing a class action suit against the Department of Homeland Security for unlawfully detaining both immigrants and U.S. citizens identified through local law enforcement agencies.

The legal arguments will center around the constitutionality of immigration detainers. Currently, local police in Illinois and Florida are instructed to continue to detain people suspected of immigration violations, even after no other basis for custody exists, until U.S. Immigration and Customs Enforcement officers arrive to take the person into custody.

The complaint alleges that the detainers violate the Fourth and Fifth Amendments because DHS "fails to establish probable cause before issuing the detainers, does not notify individuals that detainers have been issued against them, and provides no means by which individuals can challenge their extended detention."

Another argument the lawyers will make is that detainers violate the 10th Amendment because it requires state and local governments to implement federal law.

One plaintiff in the case, Jose Jimenez Moreno, is a 34-year old U.S. citizen who is being held at the Winnebago County Jail in Illinois on other charges. The detainer, however, is preventing him from getting out on bail - and is invalid, since he's a citizen.
"Without ever interviewing or speaking to him, ICE issued an immigration detainer against Mr. Jimenez on March 22, 2011. To date, ICE has never had contact with Mr. Jimenez," the complaint states.

Another plaintiff, Maria Jose Lopez, is a 29-year old legal permanent resident who is being detained at the Federal Correctional Institution in Tallahassee. In November 2010, she pled guilty to "misprision of a felony" a non-removable offense for immigration purposes. Still, "because of her detainer, at the end of her term of lawful custody, Ms. Lopez is unlawfully subject to being held an additional 48 hours or more in the custody of FCI-Tallahassee when, but for the detainer, she would otherwise be released," the complaint states.

Although each State has its own policy for handling immigration detainers, States often look to each other for guidance. It is important to maintain uniformity throughout the States when it comes to immigration policy (which after all, is federal law), especially when constitutional rights are implicated.

Continue reading "Class Action Filed Against The Department of Homeland Security Over Immigration Detentions" »

As an Austin immigration lawyer, I have met with many couples, families, and employers to discuss their immigration matter. My goal is to provide you with some useful tips to prepare for your initial consultation with an immigration lawyer.
Lawyers are trained to listen to a set of facts, apply the law, and advise clients on how to attain specific goals. With immigration, most people have similar goals -- to obtain legal status; However, understand that there are various paths to obtaining legal immigrant status so it is important to be honest and provide the lawyers with as much information as possible. One single fact or set of events can open up a different and more advantageous immigration option.

Before meeting with an immigration lawyer, I suggest you call their office and ask to speak to the lawyer. Do you get to talk to the lawyer directly? does the lawyer spend some time listening to you and figuring out if he or she can help? most lawyers do not take every type of immigration case. If the lawyer does not talk to you to learn the basics about your case, you risk spending your money to see a lawyer that cannot help you anyways.

When you schedule your first immigration consult, make sure you are prepared to explain every detail of your immigration status. Do not hide anything from the lawyer. Remember that your communications with the lawyer are protected by the attorney-client privilege. Gather as much information as possible, bring copies of prior immigration filings, criminal conviction records, and any other relevant information.
It also a good idea to come prepared with questions. Do not be afraid to interrupt the lawyer to ask questions that are relevant to you case. If you do not understand something, ask.

Also, it is important to remember that your lawyer works for YOU. After you have been fully informed and have reviewed your options, you and your lawyer should discuss your options. But you must decide upon a course of action suitable for your situation.
Immigration cases take time to get resolved. If a lawyer offers you "quick" results, get another lawyer. The best lawyers are the ones that are honest with you and tell you when no options are available or when your chosen course of action is a bad idea. Lastly, if during the consultation the immigration lawyer promises or guarantees you a result, get another lawyer. There are no absolutes in immigration law.

Continue reading "I'm Meeting with an Immigration Lawyer: How Should I Prepare? " »

This post is a continuation of my prior post on common reasons for denials of fiancé visas. As an Austin immigration attorney, I believe the reasons listed below cause the most harm in fiancé petitions. The intent is to provide some insight and general overview of this area of immigration law.

As an Austin immigration lawyer, a lot of what I do during the initial consult with the client is to identify "red flags." Some additional reasons for denials in fiancé visa cases are the following:

Reason 6: Couple has not spent enough time together in person, or in contact (unless a cultural exception applies) -- every fiancé visa petition will require proof that the couple has met within the last two years. This includes evidence that you physically met unless there is a cultural exception. There are various ways of proving this and immigration lawyers can offer creative suggestions to help you meet this requirement. This is perhaps the most important aspect of the petition, and the person requesting the fiancé visa has the burden to meet this according to our immigration laws.

Reason 7: Fiancé interviews poorly and fraud is suspected -- it may be that you have a perfectly legitimate case, but if your fiancé does not interview well and is unprepared for the types of questions she or he will be asked, they may have trouble getting through the interview abroad. This is another reason why consulting with an immigration attorney can be especially helpful.

Reason 8: Fiancé was previously in the U.S. and overstayed his or her visa -- depending on the length of the overstay and the immigration history of the fiancé, there may be inadmissibility issues that arise.

Reason 9: The U.S. citizen has had multiple applications within a specific time-frame for different fiancés, or the U.S. citizen has previously sponsored a foreign national for a green card and the U.S. citizen cannot show or prove that the foreign national maintained lawful status.

Reason 10: Fiancé or U.S. citizen has a criminal record -- For the U.S. citizen, not all crimes will cause concern for the fiancé petition, but some crimes that implicate the Adam Walsh Act will.

Reason 11: Fiancé has a serious, contagious illness. People with certain illnesses are not admissible under our immigration laws.

Reason 12: Fiancé is not truthful during the fiancé visa interview -- misrepresentation will cause serious problems and will most likely result in denial of your case.

Reason 13: The petition includes a document that is deemed to be fraudulent. The U.S. foreign embassies are well equipped to recognize fraudulent documents. It's important that you make absolutely sure your documents are accurate and properly authenticated.

Continue reading "K Visas: Tips for Couples -- Part 4, Common Problems in K-1, Fiancé Visa Petitions" »

As an Austin immigration lawyer, I am very familiar with some of the common reasons for K-1 (fiancé visa) denials. This short posting is meant to give you some insight in some of the most common reasons for K-1 denials. There are of course, many others not listed here. My list is meant to give you a general overview. A separate posting will contain additional common reasons for denials.

Reason 1: Missing documents and incorrect paperwork -- it's very easy to miss a step. Fiance visas require attention to detail and lots of tedious work. As an Austin immigration attorney, I often meet clients that had missing/incorrect paperwork that caused months of delays in the case. It is best to carefully review everything before submitting, preferably with an immigration lawyer.

Reason 2: U.S. Citizen does not show sufficient income under the U.S. Poverty Guidelines -- U.S. Citizens who are petitioning for their relative must show that they make 125 % above the poverty guidelines. If you don't meet the requirement, you can get a joint sponsor. Not meeting this requirement can cause serious delays and denial of your case.

Reason 3: Significant age difference between the couple -- A big age difference on its own is not enough to deny a case, but you have the burden of showing that there is a legitimate relationship. A significant age difference can create a negative presumption and should be carefully counterbalanced with other positive factors.

Reason 4: Fiancé has a minor child from a prior relationship and cannot obtain written consent from the child's father for the child to be able to travel outside the country -- This can often create complications in a fiancé visa case. The law of the country where the fiancé is living will govern what requirements must be met for the child to travel outside of the country. It is of utmost importance that the fiancé receive authorization and get documents in order to avoid delays when the visa is approved.

Reason 5: Spouse and fiancé are unable to communicate in a common language -- although it is possible to prove that the relationship is legitimate even if there is a language barrier, there will be a strong presumption of fraud when the couple cannot communicate. The theory is that most relationships need some type of communication to function and it is your burden to show that you are able to communicate about your life with your fiancé.

Continue reading "K Visas: Tips for Couples -- Part 3, Common Problems in K-1, Fiancé Visa Petitions" »

As an Austin immigration lawyer, I have often noticed the confusion caused by the expiration date on a U.S. visa versus the expiration date on the small white card called the arrival/departure record (I-94). People are often confused by the different dates on the visa and the I-94 and some have even jeopardized their immigration cases due to misinformation.

For most foreign nationals who seek entry into the United States, their journey often begins when the foreign national visits his or her local U.S. Embassy to apply for a U.S. Visa. Visas are given for different lengths of time, but the most common visa, the B visa is often given for 10 years at a time. The foreign national goes through the visa application process, pays proper fees, and gets a U.S. visa from the embassy in their home country.

Once the foreign national has his or her visa, upon entry to the United States, the foreign national is given an I-94. The I-94 is the length of time you have permission to remain in the United States.

So what is the difference between the visa expiration date and the length of time expiration date as listed on your I-94?

The visa expiration date, known as the "visa validity date" is the length of time you are permitted to travel to a port-of-entry in the United States. The expiration date is often shown on the visa along with the visa issuance date and post where the visa was issued.

The I-94, or length of time expiration date, is amount of time you can remain in the United States for that particular visit. A new "length of time" is given every time you enter the United States. The length of the authorized stay within the U.S. is determined by the Customs and Border Protection (CBP) Officer each time you travel into the United States. The date or duration of travel is recorded on the right-hand side of the I-94 arrival/departure record.

For Visa Waiver foreign nationals, who are not required to get a visa to travel to the United States, a stamp is placed on the foreign national's passport stating the length of time that the Visa Waiver individual can remain the United States.

As an Austin immigration attorney, I feel that it is very important for people to understand the important distinction between a visa (often given for long periods of time) and an authorized period of stay found on the arrival/departure record (I-94). Confusing the dates on these important documents may prevent you from complying with U.S. Immigration laws and could potentially have serious negative consequences.

Continue reading "Visa Vs. Arrival/Departure Record (I-94): What is The Difference?" »

Once the fiancé visa is issued, the fiancé must use it to enter the U.S. within 6 months of issuance. The parties must marry within 90 days and after they marry, they can continue the process of "Adjustment of Status" (getting a green card). People who have K-1 visas are not automatically given permission to work in the U.S. but an immigration lawyer can help the fiancé get employment authorization by filing a petition.

The fiancé, once in U.S. soil, must marry the U.S. citizen who filed the fiancé petition for him or her. The marriage must occur before the expiration of 90 days after entry. In the event that the fiancé does not marry the U.S. Citizen within 90 days, the only option for that fiancé is to return to his or her own home country. The K -1 visa cannot be extended beyond 90 days and it cannot be changed to a different status such a tourist or student. Any violation of these rules may result in deportation and in many cases, the K-1 visa holder will be prevented from entering the U.S. for at least a few years. This is still the case even if the K-1 visa holder later marries another U.S. citizen.

The K-1 visa process is also affected by the International Marriage Broker Regulation Act (IMBRA). IMBRA requires that the petitioner of a K-1 or K-3 visa disclose, as part of the petition, information of any criminal convictions for specific crimes involving domestic violence, sexual assault, child abuse and neglect, dating violence, and stalking, among others. USCIS has offered guidance that if the petitioner has been convicted of any of the listed crimes, or USCIS later learns of these crimes, he or she will be required to submit certified copies of all court and police records showing the charges and dispositions of every conviction. If the petition is subsequently approved, the U.S. Department of State will disclose this information to the beneficiary during the consular interview.

IMBRA limits the number of petitions a K-1 petitioner can file or have approved. If the petitioner has filed two or more K-1 petitions at any time, or had a K-1 petition approved within two years prior to the filing of the current petition, a waiver is required which requires supporting evidence. The adjudicator has discretion in these types of cases.

Lastly, IMBRA also requires K petitioners to inform USCIS if they have met their fiance or spouse through the services of an international marriage broker and to provide information about the broker. K visa cases that involve international marriage brokers can be more complicated and a careful analysis should be done before filing.

Continue reading "K Visas: Tips for Couples -- Part 2, The Fiancé Visa Process" »

For those who are in a romantic relationship with someone born and living overseas, eventually, one of them may choose to move to the United States and take the relationship to the next level -- marriage. This type of move is allowed and made possible thorough use of a K visa. A K visa allows a U.S. Citizen to petition for his or her fiancé (K-1) or spouse (K-3), the fiancés unmarried minor child (K-2), and the spouse's unmarried minor child to enter the United States (K-4).

The K visa petition requires patience and high level of attention to detail. There are various documents to complete and requirements to meet. The most important aspect of the K visa process that you must remember is that you have the burden of proof in demonstrating that you have a "bona fide romantic relationship."

The term "bona fide romantic relationship" is a legal term of art and the meaning depends on the type of K visa you are attempting to apply for. Specifically, for a fiancé visa, you must show the following:

1) The parties have previously met in person within two years before the date of filing the petition;
2) The parties have a bona fide intention to marry; and
3) The parties are legally able and willing to marry in the United States within 90 days of the fiance's entry.

After the petition is approved by USCIS, the file is then submitted to the National Visa Center (NVC), which forwards the file to the appropriate post at the fiance's place of residence. A second "phase" of documents must be completed and properly submitted once the case is sent to the proper post.

All fiance visa applications will have a "consular interview" requirement. The interview is for the purpose of verifying that all the fiancé visa requirements are met and complied with. The U.S. citizen petitioner is typically allowed access to the post and can attend the interview with the fiancé if he or she chooses to. If the interview is successful, the beneficiary receives a visa stamp valid for a single entry into the United States. The visa must be used, and the fiancé must enter the United Stated within 6 months of issuance of the visa.

Continue reading "K Visas: Tips for Couples -- Part 1, The Fiancé Visa Process" »

On May 17th, 2011 DHS announced that Haitians affected by last year's devastating earthquake would receive an extension of their Temporary Protected Status (TPS) for an additional eighteen months. This will apply to Haitians who are currently residing in the United States. In addition, DHS has announced that Haitians who arrived up to one year after the earthquake, many of whom came in on visitor visas and other authorized measures, could also now apply for TPS status.

As an Austin immigration lawyer, I am pleased with DHS's decision to both extend the timing of TPS and to broaden the scope of the individuals who can qualify for it. Although DHS almost immediately designated TPS status for those Haitians who were residing in the U.S. those that came within days or weeks of the disaster were ineligible for TPS and also unable to return home.

To register for TPS, you must file an Application for Temporary Protected Status. You may also request employment authorization at the same time. If you are granted TPS and your country is extended beyond the initial period, you must often re-register for TPS. People in TPS status can also travel abroad with permission, but an application must be submitted and approved first.

Although TPS does not lead to permanent resident status or citizenship itself, you may also become eligible for a green card if certain conditions are met (for example, you may be eligible if an immediate relative petition is now available to you, provided you meet the admissibility requirements). This means that if you do not obtain any other lawful status during your TPS period, once your TPS period ends you would loose your immigrant status.
There are strict deadlines for applying and extending TPS status. Those deadlines are important for you to be able to obtain and remain in TPS status.

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