California Immigration Lawyer Blog

It has been all over the news the last few days; an Australian gay man, caring for his American citizen husband, is about to be "deported." You can see an example of one such story in the San Francisco Chronicle, "S.F. Gay Married Couple Loses Immigration Battle."

The couple themselves had to have expected this. They filed Form I-130, Petition for Alien Relative. It cannot be a surprise that it was denied. The federal government does not yet recognize same sex marriages. It is the position of the United States Citizenship and Immigration Services ("USCIS"), that they will not approve such petitions until the Defense of Marriage Act ("DOMA") is held to be unconstitutional and/or Congress repeals it. The San Francisco couple was testing the law.

It is a bit of sensationalist journalism to say that the Australian man is going to be deported. USCIS is not deporting him. They have given him a date by which he needs to leave. He may leave voluntarily. He has not been placed into deportation proceedings. I suppose though, proceedings could be the next step if he does not leave.

What I am curious about is what the couple plans to do when the deadline to depart comes. They purposefully tested the law and placed their relationship in jeopardy. It takes great courage to do this. The Australian citizen may receive a reprieve or be allowed to stay for a temporary period of time. Yet, this is not what they want. They want the law to be changed. I do not think the filing of their petition is going to do it, but it has brought some attention to the law. Hopefully they will be able to take advantage of the law when it does change. Until then, I think they unfortunately have a bit of a wait. Let's hope it is not too long.

I am writing the second of a multi-part series of posts on how to bring family relatives to the United States permanently. The first post I wrote provided general information on bringing family relatives to the United States. (See my post, "Can I petition for my relative to immigrate to the United States?") This post will focus on how to petition for your brother or sister to come to the United States permanently.

In order to petition for your brother or sister you must file Form I-130, Petition for Alien Relative with United States and Citizenship Services ("USCIS") along with proof that you are a United States Citizen and that you are related to your brother or sister. I will discuss the steps you must take in more detail below.

Obtain Form I-130

You may obtain Form I-130, by clicking on the link in this post. At the same time that you obtain the form, you should also print out the instructions to the form. They are more detailed than the instructions I will provide in this post and provide the mailing address to where you will need to send the form.

Proof of U.S. Citizenship

You may prove that you are a U.S. citizen by sending one of the following documents to USCIS with your petition:

• A copy of your birth certificate (if you were born in the United States) issued by a civil registrar, vital statistics office, or other civil authority.
• A copy of your naturalization certificate or certificate of citizenship issued by USCIS or the former INS.
• A copy of your Form FS-240, Report of Birth Abroad of a Citizen of the United States, issued by a U.S. embassy or consulate.
• A copy of your unexpired U.S. passport. OR
• An original letter from a U.S. consular officer verifying that you are a U.S. citizen with a valid passport.

Continue reading "How do I bring my brother or sister permanently to the United States?" »

In order to petition for your relative to immigrate to the United States, you must: 1) be in the correct legal status and 2) not have been convicted of certain crimes. I will discuss both requirements in this post.

Legal Status

If you are a citizen of the United States, you may petition for your parent, spouse, child, unmarried adult son or daughter, and brother or sister.

If you are a lawful permanent resident of the United States, you may petition for your spouse, child and unmarried son or daughter.

It is not possible to petition for any other kind of family relative such as grandparents, grand-children, cousins, aunts or uncles. Similarly, the only persons who may petition are citizens and lawful permanent residents. Non-immigrants may not petition for relatives to immigrate permanently.

In order to start the process, a "petition for alien relative" is filed with United States Citizenship and Immigration Services ("USCIS") on Form I-130. In general, the petitioner files it with proof of legal status and proof of the relationship. I will discuss the type of proof that needs to be filed with petitions in a later post.

Crimes that make a petitioner ineligible to file

A petitioner is prohibited from petitioning for a relative if he or she has been convicted of "any specified offense against a minor" unless the Secretary of Homeland Security determines in his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. The list of offenses include:

• An offense (unless committed by a parent or guardian) involving kidnapping;
• An offense (unless committed by a parent or guardian) involving false imprisonment;
• Solicitation to engage in sexual conduct;
• Use in a sexual performance;
• Solicitation to practice prostitution;
• Video voyeurism as described in section 1801 of Title 18, United States Code;
• Possession, production, or distribution of child pornography;
• Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; or
• Any conduct that by its nature is a sex offense against a minor.

Continue reading "Can I petition for my relative to immigrate to the United States?" »

Requesting continuances of cases in Immigration Court can be tricky. You never know if it will be granted because it most often depends on the judge's discretion. There is very little case law on when continuances should be granted. Fortunately, a few days ago, the Board of Immigration Appeals ("BIA" or "Board") decided a case in which it has provided some guidance on when a continuance may be granted.

In Matter of Hashmi, 24 I&N Dec.785 (BIA 2009), the respondent (Mr. Hashmi) was married to an American citizen who had filed a visa petition (Form I-130) on his behalf. The Immigration Judge permitted several continuances in the proceedings to allow time for USCIS to adjudicate the visa petition. If the visa petition would have been approved, Mr. Hashmi would have been immediately eligible for adjustment of status (green card). Mr. Hashmi managed to obtain four continuances but the Judge denied the fifth request. The Judge denied it because he stated that he was forced to meet case completion goals and he needed to make a decision because the case had already been pending for 18 months in the Immigration Court. Mr. Hashmi appealed and after the Board of Immigration Appeals initially denied it, he was finally was successful at the Third Circuit. The Third Circuit reversed and remanded back to the Board of Immigration Appeals.

Upon the case's return to the Board, the BIA considered what factors would constitute good cause for the grant of a continuance in a situation in which the person in removal proceedings (known as the "respondent") has a visa petition pending and would be immediately eligible for adjustment of status (green card) but is waiting for USCIS to adjudicate the visa petition. The BIA decided that there are five factors that a Judge must consider before ruling on a Motion to Continue in this situation. These factors are:

1. the Department of Homeland Security's response to the Motion to Continue;


2. whether the visa petition is prima facie approvable;


3. the respondent's statutory eligibility for adjustment of status;


4. whether the respondent's application for adjustment of status merits a favorable exercise of discretion;


5. the reason for the continuance and any other relevant procedural factors.

The Board stressed that these factors were "illustrative, not exhaustive." (Id., at 790)

Finally, the BIA found that a judge's "case completion goals" "is not a proper factor in deciding a continuance request." (Id. at 794)

Overall this is a very helpful case because it provides us with some guidance in a situation in which we had none before. It will now hopefully be easier to obtain continuances in cases when, through no fault of their own, respondents have been waiting for USICS to adjudicate their petitions.

Tomorrow (Saturday), April 4, 2009, at 3:00 p.m. (pacific daylight time), I will be giving a presentation on Second Life© (www.secondlife.com) to a group of avatars on how to bring a fiance (K-1) or spouse to the United States. The group that has asked me to speak is called "crossing borders." It is comprised of people (avatars) who have met on Second Life and now wish to bring their relationships into real life.

I will be talking about the following topics:

• consular processing vs. adjustment of status;


• tips on filing a petition with USCIS;


• tips on preparing for the interview.

If you are on Second Life and are looking for the meeting, send me an IM (to my avatar "Geri Kuhn") and I will send you a landmark to the meeting. Hope to see you there.

The General Accounting Office (“GAO”) has recently issued a report, "Actions needed to address vulnerabilities in process for granting permanent residency." It is interesting because while it acknowledges improvement in the adjudication of security background checks, it also strongly criticizes United States Citizenship and Immigration Services’ (“USCIS”) adjudication of permanent residence applications in a few key areas.

Here is the good news first. USCIS has been working diligently with the FBI in trying to reduce the security check backlog. The report notes that the number of pending name checks has decreased 90 percent, from 329,000 in May 2007 to 32,000 as of September 30, 2008. The FBI plans on being able to complete all name checks within 90 days of receipt by June 2009.

The GAO found though that USCIS has failed to address vulnerabilities that they were directed to resolve in 2006 and 2007. USCIS has a unit that investigates fraud called the “Office of Fraud Detection and National Security (“FDNS”). (It is ironic that USCIS places fraud and national security in the same office.) They apparently have identified several areas of fraud in the adjudication of applications for permanent residence. These areas are with 1) religious worker petitions; 2) petitions for skilled and unskilled workers; 3) petitions for spouses; 4) petitions for relatives from Yemen, and 5) applications for political asylum. (This report did not discuss how those areas were identified.) The GAO noted that aside from some movement in regulations for religious workers, USCIS has not taken any action in the other areas where USCIS itself found fraud.

The GAO also found evidence that USCIS’ own adjudication procedures were vulnerable to fraud by employees of USCIS and they gave an example of where this happened.

The GAO strongly urged USCIS to take action on the areas they have identified, otherwise people not entitled to benefits will receive them while others who have filed legitimate petitions must continue to wait in long backlogs.

It can take years to bring family family members to the United States legally - anywhere from 1 year to 15 years, depending on the category of the petition and the country the beneficiary comes from. The wait unfortunately does not guarantee a visa. Indeed, there are certain circumstances which can automatically terminate the petition. For instance, if the petitioner dies, the petition is automatically revoked. Thus after waiting 15 years, a petition can die with the petitioner.

In such a situation it is possible to seek "humanitarian reinstatement." In order to seek reinstatement, you must file a request at the location where the petition is pending. (I.e., at the embassy abroad or at a Service Center in the United States. For those of us in northern California, you would send it to the to the California Service Center. In order to succeed in your request, you must prove that there is a humanitarian reason why the petition should be reinstated by discussing the following factors: 1) disruption of a family unit; 2) hardship to United States citizens or lawful permanent residents; 3) a beneficiary who is elderly or in ill health (but not so severe that she would be prevented from immigrating); 4) a beneficiary who has had a lengthy residence in the United States; 5) a beneficiary who has no home to go to; 6) undue delay in processing by USCIS or consular officers; 7) a beneficiary who has strong family ties in the United States.

In addition to this request, you will have to submit a new affidavit of support from a different family member since the petitioner has passed away. Acceptable family members who can substitute for the petitioner include: spouse, parent, in-laws, sibling, child (if at least 18 years old), brother-in-law or sister-in-law, son-in-law, daughter-in-law, grandparent, grandchild, or legal guardian of beneficiary.

But now for the icing on the cake. At a recent meeting held between attorneys and California Service Staff on November 19, 2008, representatives from the California Service Center indicated that it is currently taking two years to process reinstatement petitions. This seems unconscionable to me. In a situation such as this, where the petitioner has died, the beneficiary is already grieving for her loss. It seems cruel to make her wait an additional two years, just to inform her whether or not the petition will be reinstated. What are they doing for two years and how can this be justified?