Interfaith service in Benicia, Tuesday, November 24, 2015

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Inter- faith

With so much hatred going on in the world right now, it is nice to report on something positive.  For almost 20 years, Congregation B’nai Israel, the synagogue in Vallejo, and St Paul’s Episcopal Church in Benicia, have come together at Thanksgiving to hold an interfaith service.   The location alternates between the two congregations each year.  Tonight, Tuesday, November 24, 2015, at 7:30 p.m.,  the service will take place at St. Paul’s Church.  Over the years, other churches have joined in the service and it is truly an interfaith service.   Tonight’s service will also include members of the Islamic Center of Vallejo-Benicia.

The service is open to everyone and it is not necessary to belong to those congregations or any congregation in order to attend.  There will be a desert reception following the service.  For more information, please download the flyer.

Can I show the USCIS officer my Facebook page at my green card interview?

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Facebook

A common question I receive from my clients when applying for a green card based on their marriage is whether they can bring in their phone to the interview and show the officer their Facebook page.  Or, my clients ask it another way, “Can’t the officer just go online and look at my Facebook page?”   It is a reasonable question.  No one prints out photos any more.  Everything is online.  Unfortunately the answer is “no,” for a couple of reasons.  First, you want to give the officer hard copies of proof of your good faith marriage – you want them to have something they can look at later when reviewing your case.    Second, the officer does not have the time and probably the internet access to go look at your Facebook page.  Also, Facebook pages can be taken down easily.  It is not the best proof of your good faith marriage.  Below are some suggestions of what you should submit as proof of your good faith marriage.

1. Print out pictures, texts, tweets and submit hard copies

You can and should use material from social media as proof of your relationship.  However, you cannot give your twitter name and expect the officer to log onto Twitter and find you.  You must print out all tweets, pictures, texts – whatever you want to use.

2. Submit documents that show proof of shared financial assets and debts

Social media is not the best proof of a good faith marriage and indeed, I would rank it last.  What USCIS wants to see and expects to see is proof that you are living together and sharing a life together.  They expect to see everything in joint name – checking accounts, credit cards, savings accounts, investments, etc.  Now, you do not have to dramatically change your life if you do not want to.  Many people keep separate checking accounts and do not want to commingle their money.  This is fine, but you will need to explain to the officer why you handle your funds the way you do and you should plan on submitting more of the other types of evidence if you do not have much in the way of shared financial documentation.

3. Submit proof that you are residing together and you are sharing a life together

There is a great deal of other proof that you may submit.  If you are renting a place to live, you should submit a lease agreement.  If you own a place, the joint title.  If you have life insurance, renters’ insurance or home insurance together, submit copies of the policies.  If your spouse is a beneficiary on benefit plans that you receive from your employer, you should submit those as well.  You may submit all other proof that goes along with living together – copies of phone bills, utility bills, cable bills.  Ideally you have this documentation in both of your names.   Submit proof that you have taken trips together – copies of itineraries, plane tickets,  and hotel bills.

4. Submit photos, not videos

Again, you cannot refer a USCIS officer to a website to look at your photos.  Also, you cannot bring a video in and expect the officer to watch your wedding.  Everything should be printed out.  Print out your photographs and attach them to standard size paper (so they do not get lost).  Do not give them 100 photos.  Choose 20 or so that show your relationship over a period of time, not just your wedding, but events that have taken place after that.  Photos with other family members are the best.

Be creative with what you submit.  If you submit a variety of items, you will be successful at your interview.

 

Immigration Blog Round-Up, week ending November 19, 2015

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Every Friday I am going to include a round-up of blog posts from the past week related to Immigration law.   I hope to feature blogs published by solo practitioners or small law firms from across the United States.   If you would like to be included, please contact me.

 

 

 

Do you have the “Vibe?”

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VIBEWhen I first heard about “VIBE,” I thought my colleague was joking.  It turns out it is real and the word as used by Immigration is not short for vibration or groove.  “VIBE” stands for Validation Instrument for Business Services Enterprises.  In 2012, United States Immigration and Citizenship Services (“USCIS”) contracted with Dun and Bradstreet (D&B) to be the sole verification provider of commercially business information.  Through the VIBE tool, USCIS will validate whether the information contained on petitions filed by businesses or for beneficiaries of business related petitions, is accurate.  Your company information must be exist in D&B’s data base if you wish to have your petition approved.

How do I get my business information in D & B’s database?

The first step before filing any type of business related petition is to verify that the U.S. company’s information is in the D & B database.  D & B has created a streamlined process for those doing business with the U.S. government to verify their information.  This process first requires a U.S. business to obtain a “D-U-N-S” number from D & B’s website.  This will take one day or so.  Once you obtain the number, you may create, update and view basic elements of your company’s D & B report without being subject to direct marketing from D&B.  This link and process is only available for U.S.-based, privately held companies.  U.S.-based publicly traded companies, government entities and foreign companies wishing to create, update or view their report with D&B may use D & B’s main website ; however, they may be subject to direct marketing from D&B.

What if my business is not listed with D & B?

If your business information is not listed in D & B’s database and you file your petition, you can expect to receive a Request for additional evidence (“RFE”) from USCIS.  They will not approve your petition regardless of how much information you provide them about the legitimacy of your U.S. based business unless they can verify the information in VIBE.  Thus it is in your best interest to verify that the information is there before you file.  USCIS will not deny a petition without giving the petitioner a chance to respond to a RFE.  It is not enough that a business has obtained an employer identification number or has filed taxes with IRS.  These activities may then cause the information about a business to be included in D & B’s database, but not necessarily.  You must verify yourself to be sure.

When USCIS established VIBE they thought that the creation of it  would result in petitioners not having to submit so much information about the business – because they could verify it on VIBE.  This has not been true.   USCIS still requests duplicate information to the information that they can verify in VIBE.  You still must submit information about the legitimacy of the U.S. based business to support  your petition.  Although VIBE was a great idea initially, in reality, it has not saved U.S. petitioners any time or money by allowing U.S. petitioners to submit less.

 

 

Only white Christians allowed – if 26 governors have it their way

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U.S. Flag

© Kirsty Pargeter | Dreamstime Stock Photos

According to an article in the New York Times today, governors in almost half of the states in the United States have told President Obama that they do not support his plan to accept 10,000 refugees into the United States from Syria and they do not want the refugees to enter their states.

There are two issues here: (1) the acceptance of refugees into the United States from Syria and (2) the ability of a state to keep people out.  The governors have blended the two, to their discredit.

It is legitimate to be concerned with security.  Everyone we admit into the United States should undergo security/background checks.  But once immigrants have done that, people should be free to live where they want to live.  We do not live in the former Soviet Union.   We do not have internal passports and we do not restrict internal migration.   Yes, everyone is scared, but we cannot allow a governor to say who should be allowed to live in a state and who should not.

I do not know if the governors were serious.  Maybe they were trying to score some political points.  Assuming they were serious, how do they think they can control who is going to live in their state?

Let’s assume that such an idea actually is placed into law and that the governors are successful in preventing refugees from entering their particular state.   Such a law, if it could even be passed, would set a dangerous precedent.  We cannot allow the government to say that people of a certain religion cannot live somewhere.  Right now it is the Muslims.  Next it could be ——– [fill in the blank with an unpopular religion or minority.]  We do not have to go far back in our nation’s history to remember the internment camps for Japanese, or in our world’s history to remember Nazi Germany’s “laws” against Jews.

If safety is our concern, we should focus on safety from the beginning, not on hatred once people are properly admitted into the United States.

How do I bring my brother or sister permanently to the United States?

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brother, sisterI 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

Download I-130.   At the same time that you obtain the form, you should go to the USCIS website and 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.

Proof of your relationship to your brother or sister

In order to prove that you and your brother or sister is related, you must submit a copy of your birth certificate and a copy of your sibling’s birth certificate showing that you have at least one common parent.

If you and your sibling share the same father but different mothers, you also need to submit the marriage certificates of your father to each mother as well as proof of termination of prior marriages of either your father or each mother.

If you or your sibling was adopted, you must submit the adoption decree showing that the adoption took place before the child turned 16.

Finally, if you or your sibling is related through a step-parent relationship, you must submit your parents’ marriage certificate showing that the marriage by which you claim your relationship to your sibling took place before the child turned 18. Also you need to submit documentation proving that your parents’ prior marriages were terminated and you also need to submit the step-child’s birth certificate.

As a general rule, do not submit any original document to USCIS. Submit only copies. Any document not in English must be translated into English. The document need not be notarized but does need to be certified by a translator indicating that the translation is true and correct.

The filing fee for the petition is currently $420.00. As the fees do change, you should check the USCIS website and verity that the fee is correct.

You must mail the complete packet to one of the addresses listed in the instructions to the form. The location to where you send it depends upon where you live.

I recommend that you make a copy of your entire packet and send the packet certified mail, return receipt requested. By sending it this way, you will have verification that it has been received.

You should be aware that there is a very long wait to bring a brother or sister to the United States. The long wait is due to our quota system for immigration. Because of the number of visas allotted for brothers or sisters is so low, it currently takes a minimum of eleven years before your brother or sister will be able to come to the United States. It is even worse if your sibling is from Mexico or the Philippines.  It is worth filing the petition because you want to reserve your spot in line but if your sibling has another way of immigrating, you may wish to pursue that method while you waiting in line for this visa petition to become current.

What is the definition of a frivolous application for Political Asylum?

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Application for Political Asylum (Form I-589)I recently had a prospective client in San Francisco ask me for the definition of a frivolous asylum application.  As background, an individual may not be granted political asylum if a Judge determines that an applicant deliberately fabricated any material elements of the asylum application.  The Board of Immigration Appeals (“BIA”) in a case called Matter of Y-L-, 24 I & N Dec. 151 (BIA 2007) created a four-part test to determine if an applicant has filed a frivolous application.  Before a finding of “frivolous” may be made, an Immigration Judge (“IJ”) must show:  (1) the applicant received notice of the consequences of filing a frivolous application; (2) the IJ made a specific finding that the applicant knowingly filed a frivolous application; (3) sufficient evidence that a material element was deliberately fabricated; and (4) there was an indication that the applicant had been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim.  I am going to briefly describe these four points.

Notice

The Asylum regulations state that an “applicant’s signature establishes a presumption that the applicant is aware of the contents of the application.” 8 C.F.R. §1208.3(c)(2).  Moreover in Matter of Y-L-, the Board found that notice had been satisfied where the respondent signed his application which contained a warning; where he signed a “Notice of Privilege of Counsel and Consequences of Knowingly Filing a Frivolous Application for Asylum” in front of the Immigration Judge; and where there was an assurance by counsel that he had informed the respondent of the consequences of filing a frivolous application.

Deliberate Misrepresentation

In order for a frivolous finding to be upheld, the preponderance of the evidence must demonstrate that the respondent knowingly filed an application with a deliberate misrepresentation of a material fact. Y-L-, 24 I&N Dec. at 157.  An example of a “deliberate misrepresentation” may be found in a more recent case, Kulakchyan v. Holder, 730 F.3d 993 (9th Cir. 2013).  In Kulakchyan, the applicant had provided a false arrival date on her application and at the asylum interview.  When the asylum officer discovered the arrival date, the officer determined that she time barred from applying (because the application was not filed in one year) and denied the application.  The 9th Circuit upheld the BIA’s finding that this misrepresentation was deliberate.  I.e., she knew what she was doing when she made up the date of her entry.

Material Misrepresentation

The BIA has long held (in other cases interpreting “material”) that a misrepresentation is material if the respondent is excludable on the true facts or the misrepresentation tends to shut off a line of inquiry relevant to the benefit that might have resulted in the individual’s exclusion.  There have not been any recent published  9th Circuit opinions on this issue, but in unpublished opinions, the 9th Circuit has found material misrepresentations in a case where an applicant claimed he had not seen his father for a certain number of years, (and the application was based on his claim that his father had been “made disappeared” by the government authorities), but then when confronted with contrary evidence, later admitted he was living with his father in southern California.  The applicant also admitted to lying about persecution in his country and about being afraid to return.  The Court found all of these misrepresentations to be material.

Sufficient opportunity to explain discrepancies

A frivolous finding shall only be made if the IJ is satisfied that the applicant, during the course of the proceedings, had a sufficient opportunity to account for any discrepancies or implausibilities that form the basis of the frivolous finding. 8 C.F.R. § 1208.20.  In Y-L, the Board went so far as to indicate that the IJ bring the possibility of a frivolous finding to the attention of a respondent during the course of the hearing. (Y-L- 24 I&N Dec. at 159-60.)

The consequences of a frivolous finding are severe.  If there is a determination that an application for asylum was frivolous, an individual is prevented from seeking asylum or adjustment of status (green card).  The person, however, is not prevented from receiving withholding of removal.  (As withholding requires that an applicant meet a higher burden of proof, I have not seen anyone been granted withholding who was denied asylum but I suppose it can happen.)  An individual is also not prevented from seeking relief under the Convention Against Torture (“CAT”) because relief under CAT has been determined not to be a benefit under the Immigration Act.   All in all, it is important to think carefully before applying and to apply only if the facts of your case are true.

Immigration Blog Round-Up, week ending November 13, 2015

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Every Friday I am going to include a round-up of blog posts from the past week related to immigration law.   I hope to feature blogs published by solo practitioners or small law firms from across the United States.   If you would like to be included, please contact me.

Where the 2016 Presidential candidates stand on Immigration?

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Immigrants

Minnesota Historical Society

With so much rhetoric and posturing going on, it is difficult to know where the presidential candidates stand on anything.  Fortunately,  National Public Radio has devised a chart which lists all of the Presidential candidates and where they stand on immigration issues.  It is nice to be able to look in one place and on one page, and see all of the candidates’ positions.

The candidates’ positions are not too surprising..   All of them, except the Democrats, oppose Obama’s  Executive Action on DACA (Deferred Adjudication of Childhood arrivals).  Thus if a Democrat does not win this next occasion, we will see DACA end in 2016.

The good news is that there is one surprise, or at least a surprise to me.  That surprise is that most of the candidates favor some kind of legal path for status for undocumented individuals.  This does not mean a path to citizenship, only a path to obtain legal status.  There are only a few of the candidates who oppose this.  As to whether there should be a path to citizenship for people who are undocumented, the candidates are divided.

The issue on which they are most divided is whether to support the mandatory use of e-verify.  Their disagreement on that point leads me to believe that people understand that the program is unreliable.

The chart also shows the candidates’ positions on whether we should have a complete U.S.- Mexico border fence and whether there should be an end to U.S. birthright citizenship.

The chart is easy to read and instructive.  It is worth a look.

Immigration benefits and Resources available to members of the military and their families

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Soldier

Tomorrow is Veteran’s Day and so in honor of the holiday I thought I would write about some of the immigration benefits and resources available to members of the military and their families.

  1.  Military Help Line

Members of the military can call United States Citizenship and Immigration Services (“USCIS”) on a special number that is only for members of the military and their families.  The phone number is 1-877-CIS-4MIL or 1-877-247-4645.  Callers to the help line may obtain information on:

  • Tracking their Form N-400, Application for Naturalization.
  • Notifying USCIS of a new mailing address or duty station.
  • Checking the status of any other application or petition.
  • Bringing a spouse, fiancé, or adopted child to the United States.
  • Obtaining posthumous citizenship for a deceased member of the U.S. Armed Forces.
  • Submitting an application for expedited processing.

I have not actually tried calling this number but I am sure it is better than calling the regular USCIS customer service phone number – at least it must be faster.  You can find out more information about the military help line here.

2.  Citizenship for Spouses and/or Children of Military Members

Expedited citizenship for spouses of military members

Spouses of U.S. citizen service members who are (or will be) deployed may be eligible for expedited naturalization in the United States under Section 319(b) of the Immigration and Nationality Act (INA).

In general, an applicant for naturalization under section 319(b) of the INA must:

  • Be age 18 or older
  • Establish that his or her U.S. citizen spouse is deployed abroad as a service member
  • Be present in the U.S. pursuant to a lawful admission for permanent residence (green card holder) at the time of examination on the naturalization application
  • Be present in the U.S. at the time of naturalization
  • Declare in good faith upon naturalization an intent to reside abroad with the U.S. citizen spouse and to reside in the U.S. immediately upon the citizen spouse’s termination of service abroad
  • Be able to read, write, and speak basic English
  • Have a basic knowledge of U.S. history and government (civics)
  • Have been, and continue to be, a person of good moral character, attached to the principles of the U.S. Constitution and well disposed to the good order and happiness of the U.S. during all relevant periods under the law

If you find yourself in this situation, you should call the Military Help Line to verify the fastest way to expedite the naturalization application.  It is also possible to naturalize abroad if your spouse is deployed abroad.

3.  Children of military members

Children may also naturalize abroad but must meet different requirements.    You may learn more about the requirements here.

4.  Survivor Benefits for Relatives of U.S. Citizen Military Members

No one wants to think about the U.S. Citizen passing away.  Nevertheless, if the U.S. Citizen dies while in combat on active duty status, the surviving spouse and  children may be entitled to apply for immigrant status as long as they file for it within two years of the U.S. Citizen’s death. The surviving spouse and/or child may also be eligible for citizenship.  For more information about this, click here.

5.  U.S. Citizenship via military service

Members of the U.S. armed forces may be eligible for citizenship by qualifying for naturalization through military service under Section 328 or 329 of the Immigration and Nationality Act.  There are three ways of obtaining naturalization through military service.  

  • Naturalization through one year of qualifying service during “peacetime”
  • Naturalization through Qualifying Service during Periods of Hostilities
  • Posthumous Citizenship for Military members

I may devote blog posts on more specific issues relating to the military later, but for now, know that you should take advantage of your military service to obtain some benefits.  The fastest relative petition that I have worked on to receive an approval was for the spouse of an airman so I know that the expedited processing can work.

Hope you all have a meaningful Veteran’s Day.