1. How long does the process take?

The adjustment of status process varies depending on where the case is filed and the particulars of each individual case. Generally, one can expect the entire process to take about 4-6 months.

2. Can I travel abroad during the process?

Whether one can travel abroad during the green card process depends on their immigration status prior and during the adjustment process. Individuals who are in a non-immigrant status that does not allow for dual-intent need first to apply for advanced parole so that the adjustment application is not deemed abandoned. Advanced parole will not cure any unlawful presence earned by overstaying or violating an immigration status so it is important not to leave the country if one was previously out of status before seeking adjustment.

3. Can I get a work-permit while I wait for the green card?

Yes. Adjustment of status applicants are eligible to apply for employment authorization while the application is pending. Generally the I-765 application for employment authorization is filed at the same time as the adjustment application and takes about 3 months to be processed and approved. The employment authorization document or EAD will allow you to obtain a social security number but will only be valid until the adjustment application is decided. If the green card is granted an EAD is not necessary.

4. What do I need to show that our marriage is bona fide?

It is not enough to be married to a U.S. Citizen. The marriage must be bona  fide which means it must be a genuine marriage not done merely for immigration purposes. In order to prove this couples can provide evidence that they are living like any other married couple. They can show documents such as joint  bank statements, joint mortgage or lease agreements, photos, holiday cards and affidavits from friends and family. If the couple has children together than birth certificates of children will also be helpful. See my guide on proving a bona fide marriage.

5. I am an international student; do I have to stay in school?

It is a good idea to stay in student status whenever possible. However, if one drops out of school and falls out of status prior to or after the adjustment of status application is filed they will still be allowed to remain in the country while the application is pending and they will not be penalized for being out of status. Nevertheless it is important to first speak with an attorney before deciding whether or not to leave school while your application is pending.

1. If DOMA is struck down can my spouse or partner come to the U.S. on a visitor’s visa to get married and apply for a greencard?

I hear this question a lot, from both straight and gay couples. The B-2 visitor’s visa is a non-immigrant visa. This means that the applicant does not intend to immigrate to the U.S. but only visit for a period of time. If one enters on a visitor’s visa with the intent to marry and apply for a greencard, they are violating the terms of that visa. Violating immigration regulations can cause problems when it comes to adjusting status and in some cases can place an individual in deportation proceedings. Spouses and partners must apply for fiancé or marriage-based immigrant visas if their intention is to obtain a greencard. If the individual is already in the U.S. on a visitor’s visa after DOMA is struck down, they may be able to adjust their status. It is okay for one to change their mind about immigrating to the U.S. but the original intent should be only to visit. This is how the system currently works for heterosexual couples and it will likely be the same if DOMA is struck down and same-sex relationships are recognized for immigration purposes.

2. If DOMA is struck down will same-sex couples immediately be able to apply for greencards?

The answer to this question is not yet clear. However, I believe the answer is likely to be yes. There are no immigration laws that prohibit same-sex couples from requesting and obtaining greencards. The only law that prevents same-sex marriage-based greencards is the Defense of Marriage Act. If the Act is ruled unconstitutional then the U.S. Citizenship and Immigration Service would have no valid argument to deny an otherwise eligible member of a same-sex couple with a valid marriage license from obtaining the immigration benefit.

3. If DOMA is struck down and I am already married in Canada do we have to marry again in the U.S.?

In most cases, the U.S. Citizenship and Immigration Services will recognize marriages that are legal in the jurisdiction in which they took place. If the same-sex marriage is legally recognized in Canada, it is likely that it will be legally recognized by the U.S. CIS after DOMA and the couple will not have to remarry in the U.S. but will need to provide a copy of the Canadian marriage certificate.

4. Can I file my greencard application now before DOMA is struck down?

As same-sex marriages are not currently recognized by the U.S. Citizenship and Immigration Services, your application might be rejected and you might lose your filing fees. You could prepare your case to file as soon as DOMA is struck down.

5. My husband is undocumented will he be able to get a greencard if DOMA is struck down?

Unfortunately, the end of DOMA may not be a cure for all same-sex couples. Individuals who entered the country without authorization are prohibited from adjusting their status even with a federally recognized marriage to a U.S. Citizen, unless they have an immigration petition that was filed for them before April 30^th 2001 or their U.S. Citizen spouse is in active military. In this case the foreign spouse would need to leave the U.S. and apply for a marriage-based immigrant visa at the U.S. Consulate in their home country. However, under current immigration laws, one year of unlawful presence leads to a 10 year bar to reentry. A waiver of the bar requires a showing of extreme and unusual hardship to the U.S. Citizen Spouse or Parent. This may change if comprehensive immigration reform passes.

DISCLAIMER: The above responses are general in nature and do not constitute legal advice. Each case is different. Speak with an immigration attorney about your case before taking any action. Immigration Lawyer Andre Olivie helps gay couples nation-wide with their immigration needs. Contact Andre to schedule a consultation.

]]> http://www.olivielaw.com/end-of-doma/feed/ 0 http://www.olivielaw.com/same-sex-marriage-greencards-gay-asylum/ http://www.olivielaw.com/same-sex-marriage-greencards-gay-asylum/#comments Sat, 16 Mar 2013 23:10:45 +0000 Andre Olivie http://www.olivielaw.com/?p=923 Continue Reading]]> I will be speaking about LGBT asylum law and same-sex marriage greencards on a panel at Gay City in Capitol Hill Seattle on March 27th at 7PM.  See the following description of the event from the website of Social Outreach Seattle.

Guest Blog By Lianne Holt-Jensen

On Tuesday, January 29^th 2013, President Obama announced his own plan for immigration reform that will be targeted to replace a system that is “out of date and badly broken”, which will be “vital to economic growth and ensuring equal opportunity for all.”

President Obama’s plan for immigration reform rests on three pillars: 1) better enforcement of immigration laws; 2) providing a path to citizenship for the undocumented immigrants already in the country; and 3) reforming the legal immigration system. However, to earn the opportunity for citizenship, President Obama has said that “undocumented immigrants must first pass a background check, learn English, pay a penalty, and then get “in the back of the line” behind people trying to come to America legally.” Only after these steps have occurred can undocumented immigrants, already in this country, begin the process of obtaining a permanent resident card as a step towards United States citizenship. Alternatively, undocumented children who were brought to the United States illegally would be eligible for an expedited process if they go to college or serve in the military for at least two years.

Also under President Obama’s plan, same-sex married couples would have the same rights as heterosexual couples to sponsor partners for legal immigration status, a right not included in the Senate plan. However, President Obama’s plan “does not have a temporary worker program, a provision often favored by businesses seeking to fill low-wage positions” and calls for new measures to deter employers from hiring undocumented workers, including federal databases that verify eligibility and would control Social Security cards and work permits.

Though President Obama has some very clear ideas on how to reform the current immigration system, the President will wait and see how the process developed by Congress will work before moving forward with his own plan.

Sources

CNN

http://www.latimes.com/news/nationworld/nation/la-na-obama-immigration-20130130,0,6185727.story

http://www.washingtonpost.com/politics/obama-unveils-his-own-proposal-for-immigration-reform/2013/01/29/b27dcb78-6a47-11e2-95b3-272d604a10a3_story.html

Disclaimer: Guests posts do not necessarily express the viewpoint of the Law Office of Andre Olivie. Guests posts and blog posts are meant for general informational purposes only and not meant to be taken as legal-advice. Speak with an immigration attorney about legal advice specific to your situation.

Every year 10,000 slots open up for foreigners to “buy” their way into a green card. The EB-5 visa is a program administered by the United States Citizenship and Immigration Services, a federal agency, to allow foreign investors the opportunity to invest with the goal of obtaining legal permanent residence in the US. There are some pretty stringent requirements for those looking to go this route. Besides being expensive (between $500,000 and $1,000,000) it involves the considerable risk of starting a business that does well enough to be able to employ ten eligible Americans within a period of two years. During the time that the business is being managed these investors can live in the country while growing their company. Within 90 days of the two year mark, they must submit a petition proving they have satisfied the requirements of the program.

Just A Million, You Say?
While you and I may not have a cool million lying around, this route has proven to be the way to go for many thousands of investors since 1990. Since then, the rules have changed slightly to include “Regional Centers”, via a provision signed into law in 1992. Every time the provision has come up for renewal it has been extended for another three years. Most recently this occurred in September of 2012. This law allows investors to put their money into a company run by a third-party and still get credit for the jobs that it creates. The provision allows for counting “indirect jobs” created from the actions of the company towards the quota as well. This change was introduced to boost interest in this particular investment visa, and so far it looks like it has been working.
Many of the businesses started are hotels or motels, manufacturing companies, technology start-ups, farms, restaurants and others. The ten people the business creates jobs for must not be the investor’s family in order to qualify towards the requirement. Suddenly the interest for the general public opens right up when it comes to this sort of policy.

Free Foreign Venture Capital
The effects of such a program go beyond directly building businesses. Infrastructure such as bridges, roads, and water management projects can and have benefited from creative investment companies partnering with interested parties. In fact, entirely new investment firms have been created to serve this new niche.
In 2008 Marriott International used $88 million from foreigners interested in obtaining a green card to build a high-end hotel in Seattle. The number of investors was ridiculously low, with those being presented with the data in disbelief that a mere 100 investors could generate the funds necessary. A similar project took flight in Los Angeles when city planners were having a difficult time finding interested parties to build an adequate hotel downtown. The mayor was seemingly out of options to find a solution to alleviate the lack of hospitality facilities when money acquired via foreign nationals appeared to save the day.

Cheery Conclusions
It may seem like a buy-your-green-card scheme, but investors do take on a significant risk of losing their hard-earned cash chasing the pipe dream of American residence. Indeed, a $500,000 loss is not very pretty in such uncertain economic times. Yet many still invest intent on the reality of permanent settlement in the US. With the benefit of jobs for Americans, the program appears to be a big success at little risk for the public at large.

Guest Author Bio:
Carol Carter is a writer and immigration policy analyst. She has covered various topics related to immigration following an experience helping a friend become a naturalized citizen. She has used EB5Investors platform to inform colleagues of visa requirements and changes.

Disclaimer: Guests posts do not necessarily express the viewpoint of the Law Office of Andre Olivie. Guests posts and blog posts are meant for general informational purposes only and not meant to be taken as legal-advice. Speak with an immigration attorney about legal advice specific to your situation.

On December 15^th, 2012, Georgia’s “show-me-your-papers” law was reinforced. This law gives law enforcement, in Georgia, the power to investigate the immigration status of suspects and to detain these suspects if they are believed to be undocumented residents. Police officers in Georgia have the discretion to decide whether to investigate a suspect’s immigration status or to detain a suspect on the basis of immigration status. This allows the police officers to decide what characteristics and circumstances qualify for an inquiry about a person’s immigration status.

Georgia is not the only state allowing law enforcement to demand to see a person’s papers. On September 5^th, 2012, a judge re-approved Arizona’s right to the same investigative power. This followed a ruling by the United States Supreme Court upholding the “show-me-your-papers” law. Similar to the law in Georgia, police officers in Arizona have the discretion to determine when to question or detain an individual based on immigration status.

Besides Arizona and Georgia, Alabama, Indiana, South Carolina and Utah also have similar provisions.

A common criticism of the “show-me-your-papers” law is that it leads to racial profiling. Since there are no set guidelines to follow when determining when to investigate a suspect’s immigration status, officers can pick any characteristic to qualify as a reason for investigating. This leads in a general racial profiling as many of those who are investigated or detained are Latino. This will result in a tense relationship between the police and the Latino communities based on a fear of being investigated. This also means that Latinos won’t be as eager to come forward with evidence and won’t call for help if it means they might be detained and investigated.

Another issue is the increase in policing, as there are not enough funds to hire more policemen and yet these officers must make thousands of calls just to check the immigration status of a detained individual. This will result in taking away time from investigating crimes and other emergency calls when police officers are spending time on the phone checking an immigration status of an individual for a minor traffic violation.

The “show-me-your-papers” law is discriminatory to discriminatory to those who are being investigated because of characteristics that deem them “undocumented”. Those who are being investigated for minor violations or even just because police officers can do so are not the types of criminal immigrants that should be removed. This law just creates another difficulty of being a minority in America.
Sources

http://www.latinospost.com/articles/8258/20121215/immigration-reform-2012-georgia-police-enforce-controversial.htm

http://www.msnbc.msn.com/id/48920114/ns/us_news-life/t/judge-oks-arizonas-show-me-your-papers-law

http://www.cnn.com/2012/06/26/us/arizona-immigration/index.html

http://abcnews.go.com/ABC_Univision/Politics/georgia-police-choose-enforce-immigration-law/story?id=17973963

Disclaimer: Guests posts do not necessarily express the viewpoint of the Law Office of Andre Olivie. Guests posts and blog posts are meant for general informational purposes only and not meant to be taken as legal-advice. Speak with an immigration attorney about legal advice specific to your situation. Andre Olivie handles immigration cases for same-sex couples.

Reelection of Barack Obama – Good News for Deferred Action for Childhood Arrivals

President Obama has supported immigration reform as a Senator, a presidential candidate and as a president, but until June of 2012 he failed to make any major impact other than deporting more individuals then the Bush Administration.  On June 15^th, 2012, however, the Obama administration and the Department of Homeland Security began an amazing new policy called Deferred Action for Childhood Arrivals. I’ve written about DACA on my blog so you can read about it here. Basically it allows certain undocumented immigrants under 30 years old who came to the U.S. prior to their 16^th birthday to obtain temporary lawful status and work authorization. It wasn’t the Dream Act but it’s a start and will be a great benefit to the already 200,000 young people who have applied for it.  Mitt Romney had stated that he would not continue DACA if he were elected, putting thousands of young people at risk of deportation. Since Barack Obama won the election we can be fairly certain that the program will continue and hope for the possibility of more comprehensive immigration reform.

Same-Sex Marriage in Washington State

Washington residents voted in support of marriage equality by passing Referendum 74.  On December 9^th, same-sex gay couples will be able to marry in Washington State. Marriage Equality had been passed a year later by the legislature but this is the first time that Washington voters have voted to support same-sex marriage.  This is a tremendous step forward for Washington State and for the country. Unfortunately for bi-national couples in Washington State and throughout the country huge hurtles remain.  Under the current immigration laws, lawful same-sex marriages in Washington State or any other state that recognizes marriage equality, are still not recognized as valid marriages for immigration purposes. This means that a Gay U.S. Citizen still cannot petition for a green card for their husband or wife but a heterosexual U.S. Citizen can.  If you are in a relationship or married to a same-sex partner speak with an immigration attorney to learn about the current immigration options.

Marijuana decriminalized in Washington State and Colorado

MARIJUANA IS STILL ILLEGAL UNDER FEDERAL LAW.  It is important for non U.S. Citizens to realize that marijuana is still illegal under federal law even if it is legal under state law. If you are a lawful permanent resident (greencard holder) or other non-citizen be aware that marijuana use is a violation of your immigration status and could potentially place you in deportation proceedings.

Guest Blog By Lianne Holt-Jensen

On September 26th 2012, letters were distributed clarifying the guidelines used to apply the policy of prosecutorial discretion in cases of same-sex partners. Under prosecutorial discretion, immigrants, with no criminal records, in same-sex partnerships, have been allowed to remain in the United States.

In the United States, immigration law abides by federal law. Though a same-sex marriage may be legal under some state laws, the marriage may not be recognized under federal law because the definition of “marriage” in federal law is still between a man and a woman.

Under prosecutorial discretion, courts may look into other factors to determine whether there is a family relationship, which would allow the immigrant to remain in the country. Prosecutorial discretion is the ability of the prosecutor to decide who to charge with a crime, what charges to file, when to drop the charges, and other prosecutorial decisions. Through prosecutorial discretion, thousands of deportation cases have been closed. However, these immigrants do not gain any legal status.

Before the application of prosecutorial discretion, immigrants in same-sex partnerships, with United States citizens, whose visas have expired, were being deported without remedy. Though most cases were awarded prosecutorial discretion, the guidelines were not clear or in writing. The written instructions include specifying “family relationships” and family ties to include “long-term same-sex partners” and include these immigrants under an Obama administration policy suspending deportation.

Though this is a big step for immigration law and the LGBT community, there is much further to go to establish equal rights for immigrants in same-sex partnerships. Immigrants in same-sex partnerships are still not allowed to obtain the permanent residency status that is currently awarded to immigrant spouses of United States citizens. The new guidelines do not address the issue of awarding green cards to immigrants in same-sex partnerships.

Disclaimer: Guests posts do not necessarily express the viewpoint of the Law Office of Andre Olivie. Guests posts and blog posts are meant for general informational purposes only and not meant to be taken as legal-advice. Speak with an immigration attorney about legal advice specific to your situation. Andre Olivie handles immigration cases for same-sex couples.

Sources

http://www.immigrationequality.org/2012/09/immigration-equality-praises-obama-administration-for-new-written-guidance-providing-discretionary-relief-to-lgbt-immigrant-families/

http://www.nytimes.com/2012/09/29/us/homeland-security-puts-it-in-writing-on-immigration-policy-and-gay-couples.html?_r=0

http://www.cbsnews.com/8301-201_162-57522730/same-sex-couples-eligible-for-deportation-hold/

http://usnews.nbcnews.com/_news/2012/09/28/14140024-us-immigration-chief-same-sex-ties-are-family-ties?lite

http://www.nytimes.com/2012/09/29/us/homeland-security-puts-it-in-writing-on-immigration-policy-and-gay-couples.html?_r=0

By Lianne Holt-Jensen

On September 17^th, 2012, Mitt Romney announced his platform to fix the “broken” immigration system. A part of his plan is to get rid of the diversity visa program in order to bring “families together”. On the surface this sounds like a great idea bringing families together should be a priority. Except that in immigration law, bringing families together is a priority, allowing immediate children, spouses and parents to immigrate to the United States. However, the problem with Mitt Romney’s plan is that family visas tend to be limited.

Family visas apply only to those with family who are United States citizens or legally permanent residents, residing in the United States. Even so, family is limited to a number of preferences. The first preference is for the unmarried sons and daughters of United States citizens; the second is for the spouses and unmarried sons and daughters of legally permanent residents; the third is for the married sons and daughters of United States citizens; and the fourth is the brother and sisters of over-21 United States citizens. Each preference is required to provide proof of relationship with the citizen or resident and subject to a long wait time before they can immigrate. An increase in family visas will most likely improve the process for those already benefitting from the program. These requirements are based on the assumption that there is a legal immediate relative that legally resides in the United States. Whereas, with a diversity visa, any winner can immigrate without having to prove a special skill, without having to pay tuition and without having to prove a legal relationship with a legal resident in America.

Diversity visas are primarily to allow people to emigrate from under-represented regions to the United States. The program allows a selection of 50,000 winners, based on a series of elaborate formulas, to immigrate to the United States annually. The benefit of the diversity visa program is to allow those from countries with low rates of immigration to immigrate, rather than relying on solely family or employment immigration. In most years, Europe and Asia have predominately received the greatest number of diversity visas, however now it is the reverse. Ridding the United States of the diversity visa program will limit the diversity among the immigrants entering the United States. It will also increase the reliance on family and employment visas, which are sometimes even more difficult to receive.

Though it sounds like a great idea to bring families together, these are still subject to limitations in immigration law. By getting rid of the diversity visa program, there will be less available options to those who want to immigrate to the United States.

Disclaimer: Guests posts do not necessarily express the viewpoint of the Law Office of Andre Olivie. Guests posts and blog posts are meant for general informational purposes only and not meant to be taken as legal-advice. Speak with an immigration attorney about legal advice specific to your situation.

Video and more DACA information available at www.uscis.gov/childhoodarrivals