DOMA STRUCK DOWN : Can I get a Green Card?

gayimmigrationThis morning the U.S. Supreme Court handed down a 5-4 decision ruling the Defense of Marriage Act unconstitutional. Justice Kennedy wrote the majority opinion writing that “the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity…By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” In addition, the Court dismissed California’s Prop 8 case on jurisdictional grounds, essentially allowing Californians to continue with marriage equality.

These rulings paves the way for thousands of federal benefits to be available to same-sex couples, from California and through other states that allow same-sex marriage. This includes immigration benefits which come under federal law. The U.S. Citizenship and Immigration Services, the federal agency under the Department of Homeland Security, has routinely denied same-sex couples green cards and other immigration benefits on the grounds that DOMA prevented them from recognizing a same sex marriage as valid and a valid marriage is a requirement for marriage-based immigration applications and petitions.

Today, it is unclear if, how and how soon USCIS will begin processing marriage-based applications for same-sex couples. Most likely the Director of USCIS will issue a statement or policy memo regarding the matter. As that may take several days, weeks or even months, some immigration attorneys, myself included, plan to file same-sex marriage adjustment and fiancée visa cases as soon as possible to force USCIS to either approve these cases or give a new reason or “legitimate purpose” for denial. Now that DOMA is unconstitutional, I see no good reason to differentiate my opposite-sex marriage cases with gay marriage cases as long as the marriage is valid in the jurisdiction in which it took place.

For those same-sex couples interested in applying for immigration benefits for their spouses, I urge them to speak with an immigration attorney, as I would for any opposite-sex couple in the same situation. Immigration law and the green card process are quite complicated and these are uncharted grounds.

If you are a U.S. Citizen and your spouse entered the U.S. lawfully on a non-immigrant visa such as a student visa they may be able to apply for adjustment of status to that of a lawful permanent resident. You can find out more information on the adjustment of status process here.

Immigration Lawyer Fees

One of the biggest concerns of those seeking an immigration lawyer is cost. I have seen the question posted online many times, how much does it cost to hire a lawyer? It is difficult to answer this question in generality as each case is different. Lawyers are service providers. Rather then sell a product we provide a service. Our “product” is our time. Generally, the more time spent on your case the more money it will cost. It is important to realize that the services of a lawyer are unique. We are trained professionals who understand the law. The ability to stay in one’s country lawfully and not be separated from family is a great reward to a successful case, and it is best to understand the law before taking any risk. Just as it would not be wise to have someone who is not a doctor perform surgery on you or your family member, it would not be wise to hire someone who is not an immigration lawyer  to handle your immigration case. Immigration law is extremely complicated and risks can be high, for this reason fees may also be high. At my firm, I try to charge reasonable rates.

At the Law Office of Andre Olivie, we understand that fiances are limited, especially in this economy. For this reason, I charge flat rates, based on how much time I believe your case will take. As opposed to an hourly rate, a flat rate works in your favor, as it is the same charge no matter how many hours it takes and you will know what your fee is up front without having to watch the bill rise as they case goes on. Only in cases where there are unexpected changes in your case will the fee need to be renegotiated. At the Law Office of Andre Olivie, our consultation fee is also free for those who hire our services. While a consultation fee is required at the consultation, it becomes a down payment on the legal fee and not in additional fee.

At my office, I charge reasonable rates for the Seattle area. However, because I have low overhead (no secretary and no large office) I am able to charge less than other attorneys in the Seattle area. In addition, all my clients are offered monthly payment plans with no large down payment. If you have a straight forward case, such as a marriage greencard case, where the foreigner has entered the country lawfully, the spouse is a U.S. Citizen and no one has a criminal record, then I can quote you a rate in email or over the telephone. For more complicated cases, I would need to sit down with you and discuss your case before I can give you a price quote.

How Do I Renew or Replace My Greencard?

Renewing a Greencard is a fairly simple process in most cases. If your Greencard is about to expire or it has been lost or stolen you can get a new Greencard by filing form I-90 Application to Replace Permanent Resident Card with the U.S. Citizenship and Immigration Service. It is important that you read the instructions carefully before filing and include the necessary supporting evidence and fee of $450. The process takes approximately 3-5 months. A few weeks after the initial filing, you will receive a receipt notice showing that your application and fee has been accepted and to wait for further notices. The next notice will be an appointment notice for biometrics (fingerprints). This will be scheduled about a month or two after the initial filing. After your biometrics are complete, unless there are any problems, your new card should arrive in the mail about a month later.

If you have ever been arrested or convicted of a crime or believe that you may have somehow violated the conditions of your lawful permanent resident status and need to replace or renew your Greencard DO NOT do so without first speaking with a qualified immigration attorney. If prior crimes or actions were in violation of your lawful permanent resident status then filing form I-90 or any form with USCIS could place you in removal proceedings. Seek out the aid of an immigration attorney who can best advise you on what your next steps should be.

If you received a conditional two year lawful resident card (Greencard) based on marriage to a U.S. Citizen and the two years is about to pass, DO NOT file form I-90. In this case you will not need to renew your Greencard; you need to file form I-751 Petition to Remove the Conditions of Residence. This form requires significant evidence of a bona fide marriage and must be filed within the 90 day period prior to the expiration of your conditional residency card. It is advised that you work with an attorney in filing this petition, especially if you have divorced your spouse or are contemplating a divorce.

If you are thinking about renewing your Greencard then it is likely that you have had your card for more than 5 years and may be eligible to apply for U.S. Citizenship. Consult with an immigration attorney to find out if you are eligible for U.S. Citizenship, as this may be a better option than continually renewing your Greencard.

Remember, in addition to obeying all U.S. laws, Lawful Permanent Residents must always have their Greencard, must always renew it when necessary and must advice USCIS of new addresses within 10 days of moving. Addresses can be changed by filing form AR-11.

What If I Miss The I-751 Deadline to Remove Conditions On My Greencard?

I’ve had my marriage-based greencard for almost 2 years…now what?

Recently, I had a client come in whose greencard had expired because he had missed the deadline to file an I-751 Petition to Remove the Conditions of Residence. If you recently married a U.S. Citizen and have received a greencard, an I-751 form must be filed within the 90 days preceding the expiration date on your greencard. While greencards allow a foreign national to live and work in the U.S. permanently, a greencard based on a marriage, that was originally less than two years old, will expire after two years. The foreign national must once again prove to the USCIS that his or her marriage was bona fide and not fraudulent; this is done by filing an I-751 and supporting evidence of your marriage.

If you do not file an I-751 in time, your greencard status will be terminated and you may be put into deportation proceedings, a process which begins with a Notice to Appear at a hearing. In my client’s case, he had not yet received any Notice to Appear, thus we went ahead and filed the I-751 late with a letter explaining the extenuating circumstances as to why it was late. This situation is less than ideal. We have not yet heard whether or not USCIS will accept his late I-751.

It is very important that those with marriage based greencards mark your calendar and do not miss your obligation within the 90 day period prior to the 2nd anniversary of receiving your card (not your wedding date). If you find that you have already missed the deadline, you should contact a licensed immigration attorney. 

Note: If you have divorced or separated prior to the deadline, you must still file an I-751, and seek a waiver to remove conditions without the support of your spouse. You should contact a licensed immigration attorney to aid you in providing sufficient evidence to receive the waiver. I have experience with these kinds of cases and will be able to help.