Affidavit of Support I-864

Immigrant Affidavit of Support Form I-864

Most family-based immigrants and some employment-based immigrant cases are subject to the public charge ground of inadmissibility under Section 212(a)(4) of the Immigration and Nationalty Act. An affidavit of support  is required to assure the federal government that these intended immigrants have enough financial resources available to them and will not rely on welfare for support. Under Some intended immigrants must also complete a declaration of self-sufficiency for I-944 along with form I-864 when they apply for residence or adjust status. The forms are filed concurrently with form I-485, Application to register permanent residence or adjust status.

One of the most challenging issues in most family-based visa applications is the affidavit of support. Mistakes in completing the I-864 and insufficient financial evidence are common reasons for time-consuming requests for those who apply for permanent residence or adjust status. Some consulates such as Ciudad Juárez may even deny immigrant visas under Sections 221(g) or 212(a)(4) where the joint sponsor is not related to the intended immigrant or has not assisted in the past. In some adjustme nt of status interviews, the USCIS immigration officer may inquire into the relationship between the intended immigrant and the joint sponsor.

Under Section 212(a)(4) of the Immigration and Nationality Act, the government may exclude as public charges intended immigrant family members and certain employment-based applicants unless they submit an affidavit of support under Section 213A executed by a sponsor as a contract signed under penalty of perjury, showing that they are unlikely to rely on welfare for support. The immigration forms used to do this are USCIS Form I-864 or I-864EZ. The sponsor must also submit appropriate financial documents with the affidavit of support to verify his or her ability to support the immigrant financially. The immigrant must provide the proper form signed by his sponsor when adjusting status to permanent residency (with form I-485 USCIS application or with current filing I-130 and I-485 ) or when consular processing (forms DS-260) through the National Visa Center (NVC).

A completed and signed affidavit of support is a binding legal contract between the Federal government and the petitioner by which the sponsor agrees to maintain the immigrant at 125 percent of the poverty level, if it becomes necessary, while the agreement is in force.

i-864-sponsor - forms visa

Common issues with affidavit of support i-864

Some common reasons people have problems with affidavits of support in practice are:

  1. Including family members on the affidavit of support i-864 who are not derivatives beneficiaries of the principal immigrant – not using separate forms for visa applicants who are immediate relatives;
  2. No family relationship between the intended immigrant and the joint sponsor;
  3. Insufficient documentation of income;
  4. Sponsor makes inadequate income, or the i-864 sponsor is unemployed or retired;
  5. Sponsor failed to file income tax returns when he had a duty to do so;
  6. Sponsor has incorrect filing status (e.g., filed as head of household or single when married);
  7. Sponsor lacks assets to supplement income;
  8. Valuation of I-864 assets to supplement income (e.g., How much is my Jimmy Hendricks’ guitar worth?);
  9. Ignoring debt secured against assets;
  10. Self-employed income (my business makes $200,00 per year, but because of depreciation and write-offs I declare a loss on my income tax returns);
  11. Finding a willing and qualified joint sponsor, and
  12. Using an outdated edition of form I-864.

I-864 Filing Fee

You are not required to pay a fee when you file with USCIS for permanent resident adjustment or abroad with the Department of State (DOS). DOS does, however, charge a fee when this form is filed in the U.S.. For more information, please visit the Department of State website.

Income Requirement for  an I-864 Sponsor

You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125% of the U.S. poverty level for your household size. Your household for affidavit of support purposes includes you, your dependents, any relatives living with you, any person you have sponsored before to get a permanent resident card and the immigrants you are sponsoring now.

If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100% of the U.S. poverty level for your household size.

To see if you are above the poverty level, review “Form I-864P”.

i-864 assets to supplement income

The affidavits of support rules are flexible because they allow a sponsor to use significant assets to demonstrate the ability to maintain income. The assets must be “available in the United States for the applicant’s support and must be readily convertible to cash within one year.”

The assets you may use include deposits in a financial institution, stocks, bonds, certificates of deposit, and real estate or personal property. The documentation required for assets include:

  1. Documentation of ownership and date of acquisition – Certificate of Title, Letter from a Financial Institution
  2. Proof of net cash value of the asset (if applicable, e.g., real estate) – appraised value minus debt secured by the asset. Remember it’s about your positive equity: it’s not just the value of your home but the amount of debt secured by the house.
  3. Proof of location, and
  4. One-year history (applicable to financial assets) – statements for 12- months.

How much asset do you need?

Find the annual income shortfall 

Use USCIS form I-864P to find the minimum income for your household size. If you have three dependent children, your household size is 5 when you include the intended immigrant (you =1, children =3, intended immigrant =1). If you are non-military and you do not live in Alaska or Hawaii, in 2020 you must show income of at least $44,100 to sponsor one intended immigrant. Let us next assume that your reported annual income is $32,000 leaving a shortfall of $12, 100. We therefore need net assets to supplement $12, 100 in annual income.

How are you related to the intended immigrant?

If the person you are sponsoring is a spouse or a minor child, then you must show assets in excess of at least three times the shortfall. Otherwise you must show assets valued at five time the shortfall.

Apply the appropriate multiple to the shortfall amount

In our example above let us assume that your are sponsoring a wife or husband. In that case you need to show assets equal or greater than three times $12, 100 or $36, 300.

How to File an Affidavit of Support You, the sponsor, should download and complete the current Form I-864 when the National Visa Center instructs the the beneficiary of your petition to submit affidavit of support and immigrant visa forms after the requested fees have been paid. In addition your foreign relative may need an affidavit of support for his immigrant visa interview with a consular officer overseas or when he is about to submit an application for adjustment to permanent resident status with the United States Citizenship and Immigration Services (USCIS) or with an Immigration Court in the United States.

If you cannot meet the minimum income requirements using your earned income, you have various options:

  • You may add the net cash value of your assets (gross value – minus liabilities, if any). This includes money in savings accounts, stocks, bonds, other personal property and and real estate. To find the amount of assets required to qualify, subtract your household income from the minimum income requirement (125% of the poverty level for your family size). You must prove the cash value of your I-864 assets is worth five times this difference (the amount left over) or three times if the visa application is based upon a marriage petition.

Exceptions:

  • If the person being sponsored is a spouse, or son/daughter (who is 18 years or older) of a U.S. citizen: The least cash value of assets must be three times the difference between the sponsor’s household income and 125% of the federal poverty guideline for the household.
  • If the person being sponsored is an orphan coming to the United States for adoption: The adoptive parents’ assets merely needs to equal or exceed the difference between the household income and 125% of the federal poverty line for the household size.

Besides using your assets, you may also count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. You and the household member must also complete a Form I-864A, Contract between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members.

  • You may count the assets of the relatives you are sponsoring.

Responsibilities as an I-864 Sponsor:

When you sign the affidavit of support, you accept legal responsibility for financially supporting the sponsored immigrant(s) generally until they become U.S. citizens or get credited with 40 quarters of work. Your obligation also ends if you or the person sponsored dies or if the person sponsored departs the United States and gives up his permanent resident status by executing form I-407 at a US consulate.

Note: Divorce does NOT end your legal obligation.

If the person you sponsored receives any “means-tested public benefits,” you may be held responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Any joint sponsors or household members whose income is used to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant. Be sure to read the Sponsor’s contract or statement on Form I-864 before signing.

If you have any questions about your liability as a sponsor please seek immigration legal advice from independent legal counsel. If you are an intended immigrant through marriage, you may have questions about whether the person you intended to marry is a qualified sponsor for affidavit of support purposes. Do not wait until after the marriage to find out. Get advice early. Goodin Law offers legal services to resolve affidavit of support and other immigration matters. Call us today.

Be informed – where to get further information and immigration legal advice

Be sure to read affidavit of support i 864 form instructions.

For further information please see links below:

Affidavit of support form i-864 download

Form i-864 instructions

Guidelines for Preparing Affidavits of Support

Guidelines for I-864 Supporting Documents

Do you need immigration legal services for an affidavit of support problem or other family immigration matter? Please contact us for a consultation with our experienced immigration attorney.

Affidavit of Support, I-864 and Taxes

Baby Born Abroad to Green Card Mother

Q. I have a green cargave birth while visiting Romania. My husband is not a United States citizen. How do I return to the United States with my baby? How can I get a green card for my baby?

Generally, arriving aliens seeking admission as immigrants must have a valid unexpired passport and a green card or immigrant visa. However a waiver of the green card or immigrant visa is permitted for an alien child born during the temporary visit abroad of a mother who is a lawful permanent resident alien. No waiver fee or application is required for this 211(b) waiver. Under 8 CFR 211.1(b) the child must apply for admission before he is 2 years old and must be accompanied by his permanent resident mother upon the mother’s first return to the United States after the child’s birth. The regulation also requires that the mother must also be admissible to the United States.

In summary the four requirements for this waiver are:

  1. Child born abroad to a mother, who is a lawful permanent resident;
  2. Child must apply for admission within 2 years of birth;
  3. Be accompanied by the lawful permanent resident mother during her first return to the United States; and,
  4. The lawful permanent resident mother must be found to be admissible.

Proving eligibility for the waiver

The following documents are necessary to demonstrate eligibility for the waiver and to document the baby’s status upon admission:

  1. Long form birth certificate with certified English translation (if not in English);
  2. Passport for child;
  3. Four Identical color U.S. passport style photos (used for recordation of status), and
  4. Proof of non-US citizen status of child’s father – Copy of father’s Passport, Birth certificate, or Permanent Resident Card.

Green Card Mother traveling with the baby to the United States

Unless a child is accompanied by both parents it is strongly recommended that the parent traveling with the child have a parental letter of consent from the other parent. The consent letter may state “I [full name of other parent] acknowledge that my wife/etc.[full name of accompanying parent] is traveling out of the country with my son/daughter [full name of child] who was born in [city/country] on [date of birth]. She has my permission to do so.” The parental permission letter should be notarized and should be accompanied by a certified English translation if the original is in a language other than English.

Inspection and Admission as Permanent Resident- Green Card for Baby

At the Port of Entry, the child and mother will be inspected by a U.S. customs and border protection officer. If satisfied the customs officer will admit the child in NA-3 status to indicate that the child was born during the temporary visit abroad of a mother who is a lawful permanent resident alien. A record will be created on Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence indicating that your baby was admitted for lawful permanent residence without an immigrant visa in accordance with 8 CFR 211. Your baby’s passport should also be stamped with an I-551 stamp.

You should immediately follow up with an Info-pass appointment at your local USCIS Field Office to verify your child’s status in the database and arrange the payment of the immigrant fee (if any) that is required for the USCIS to produce and mail the baby’s plastic green card.

Contact the U.S. Consulate Permanent Resident Services

Contacting the Permanent Resident Services of the US Consulate and the airline before booking your tickets might be very helpful. The consulate can ensure that you have the documents required to prove the status of the child and to travel with the baby to the United States.

Conclusion

It is best to seek the guidance of an experienced green card lawyer during this process as not all US Customs and Border Protection (CBP) personnel may know about this process. Also the use of assisted reproductive technologies may add further complications to your case. Need help? Call 702-423-2721 to schedule an initial consultation with Las Vegas immigration lawyer Gary Goodin.

Acquiring a K1 Fiance Visa

Before marrying abroad consider the K1 visa

If you’re a United States citizen and you want to marry a foreign national you can petition for the foreign national with a k1 visa petition. A k-1 visa can be a fast way to bring you fiance to the United States, rather than marrying them abroad and filing for them as your spouse. The K-1 visa is a hybrid immigrant/non-immigrant visa that the US Consulate issues to your fiancee so she can marry you here in the United States within 90 days of admission and apply for a green card (i.e. permanent resident status) following the marriage.

A k1 fiance visa petition must first be filed by the US citizen

The foreign national doesn’t file the K-1 petition. You the US citizen is the petitioner, and you file it on her behalf. In the petition you can also petition for the minor children of the fiance to accompany or follow your fiancee. Once the petition is granted, the case is transferred to the US Consulate for your fiancee to apply for a K1 visa and be interviewed by a Consular officer.

Immigration Attorney Las Vegas

Consequences of failing to marry after admission on a k1 visa

Upon entering the United States, the marriage must occur within 90 days, otherwise the foreign national must leave the country within 30 days. Should the foreign national marry somebody else, or if the marriage doesn’t take place within 90 days, the visa lapses, and he or she must leave the country. Upon entering into a legal marriage with you, the foreign national can begin the process of applying for employment authorization and a green card. If your marriage is not concluded within 90 days, your fiancee is required to leave the United States.

K-1 visa requirements

You need to be able to prove that you’ve personally met each other within the last two years. A meeting online is not enough. There must be a meeting in the flesh, so to speak. Be prepared to produce time stamped photos or videos, airline tickets, hotel receipts, phone records and other supporting evidence. This evidence must accompany the K-1 petition. The petition and all supporting documentation must be accurate. The petitioner and the foreign national must both be eligible to marry. As the petitioner, you’re required to show that neither you nor the foreign national are likely to become a public charge. You’ll need to submit evidence to the effect that you’re above the poverty line in your state. The K1 visa holder has typically six months (or shorter) to travel to the United States (use it or lose it).

IMBRA

The International Marriage Broker Regulation Act requires petitioners that have been convicted of specified crimes involving violence and/or drug crimes to disclose them on their K-1 visa petition. Confusion also exists with disclosures as to whether the couple met through a marriage broker. Dating sites are not marriage broker sites. The Adam Walsh Act also governs K-1 petitions. If you’ve been convicted of a sex crime involving children, you’re not eligible to file a K-1 petition for the benefit of a foreign national.

Same sex fiance K1 visas

Recent federal appellate decisions that permit same sex marriage imply allowing same sex or transsexual K-1 visa issuance. That shouldn’t be an issue if everything else is in order. The K-1 visa process is highly detailed. All information on the petition must be perfectly accurate and accompanied by supporting documentation. An embassy or consulate interview will follow along with the required medical exam.

For best results use an experienced K1 visa lawyer

The K1 visa process can be challenging. It is best to put the matter into the hands of a competent k1 visa lawyer rather than engage in self-help or use a cheap service that cannot represent you before USCIS and US consulates when things do not go according to plan. K1 visas sometimes do not go according to plan. Goodin Law P.A., immigration and k1 visa lawyers have an excellent track record in obtaining K1 visas for fiances of US citizens. If you have any questions call our k1 visa attorney at 702-423-2721 to schedule a consultation to determine eligibility for the K1 visa or its alternatives.

C visa adjustment of status

If you came to the United States as a crewman of a ship or plane and you are married to a US citizen, you may be able to adjust status to get a green card under certain limited conditions. The general rule is no adjustment for crewmen. However an exception to the general rule where you can get a green card while present in the United States is 245(i) adjustment of status under the LIFE Act Amendments of 2000.

One person came to the United States as a crewman working on a ship in 1996, fell in love with America and never left. A company in New York filed an application for labor certification for him in early April 2001 but he never continued to pursue the matter because the company no longer needed him because of the 2001 recession.

The person got married to a US citizen in 2002 and never adjusted under the mistaken belief that his admission on a C visa barred him from adjustment. This mistake costs this man tens of thousands of dollars in lost earnings because he rose to a high level within his company and was eventually laid him off because he could did not have a green card and could not prove that he was able to work in the United States.

245i green card

The typical seaman who enters the United States on a C visa cannot adjust status. But some C visa holder can benefit under the provisions of the LIFE Amendment Act of 2000 can. For you to adjust status you must show that:

  1. You were the beneficiary of a qualified immigration petition or an application for labor certification that was filed on or before April 30, 2001
  2. You must have been present in the United States on December 21, 2000
  3. You are the beneficiary of the qualifying petition or petition that was filed later
  4. A visa is immediately available to you
  5. You are not inadmissible to the United States

If you are an applicant for 245(i) adjustment of status you must complete USCIS adjustment of status form I-485 and Supplement A. In addition you must pay a penalty fee of $1000.00 in addition to the regular filing fees for adjustment of status. If you are married to a US citizen and do not meet the requirement of the LIFE Act Amendment of 2000 then, you may be able to get an immigrant visa and a green card by Consular Processing.

Not knowing about your immigration options can be very costly. For more information on C visa adjustment of status or obtaining a green card, contact Goodin Law P.A. at (702) 423-2721 or visit our website.

H1b visa employer – employee relationship

Who controls the employment of the h1b visa worker?

A U.S. employer may have questions about how to sponsor h1b visa workers to fill vacancies for which US persons are unavailable. If you are an employer seeking to file an H1b petition, you must demonstrate a valid employer-employee relationship whether you are filing an initial or extension petition. The employer-employee relationship must exist and must remain throughout the duration of the requested h1b validity period.

The link between an h1b petitioning employer and h1b visa employee must be a conventional master-servant relationship as understood by common-law agency principles. The petitioner must have the right to control when, where and how the h1b performs his work. The h1b beneficiary, therefore, cannot operate as an independent contractor. A self-employed person typically cannot be an h1b beneficiary. However, there is an exception for a petitioner in business as an agent filing for “beneficiary who is traditionally self-employed or who use agents to arrange short-term assignments on her behalf with numerous employers.” 8 C.F.R. 214.2(h)(2)(i)(F). Modelling agencies, for example, have a regulatory exception when it places models at various fashion houses under contracts between the modelling agency and the fashion houses.

ow to sponsor h1b visa

The test for whether an employer-employee relationship exists

An employer-employee relationship test is easiest to meet in a traditional workplace setting. But it can also be met when the h1b worker is placed off-site for a client of the petitioner. For example, if the petitioner is an IT cons company, it might hire a software engineer and place him at a customer’s site to develop customized software for the client. A similar situation often arises at architectural firms. Provided the petitioner has the right to control and exercises actual control, the petitioner will have met the 11-factor test.

The employer-employee relationship does not exist when the petitioner operates a Third Party Placement or “Job Shop” such as a computer consultancy service that contracts with third party companies to supply them with employees on an as-needed basis and where the beneficiary will report to a manager at the third party company. In this instance, the petitioner will have no right to control the work of the beneficiary.

The Supreme Court enunciated its test for whether an employer-employee relationship exists in Community for Creative Non-Violence v. Reid, 490 U.S. 730 at 751-752 (1989): “In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” 490 U. S., at 751-752.

Consistent with the Reid decision, USCIS in 2010 recited an 11-factor test. See, Neufeld, Assoc. Director, Service Center Operations, USCIS, Determining Employer-Employee Relationship for Adjudication of H-IB Petitions, Including Third-Party Site Placements, Jan. 8, 2010. The flexible 11-factor for whether an employer-employee relationship exists is as follows:
(1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
(2) If the supervision is off-site, how does the petitioner maintain such oversight, i. e. weekly calls, reporting back to the main office routinely, or site visits by the petitioner?.
(3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
(4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
(5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
(6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
(7) Does the petitioner claim the beneficiary for tax purposes?
(8) Does the petitioner provide the beneficiary any employee benefits?
(9) Does the beneficiary use proprietary information of the petitioner to perform the duties of employment?
(10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
(11) Does the petitioner have the ability to control the manner and means in which the work-product of the beneficiary is accomplished?

No one factor is decisive

No one factor is determinative, and the USCIS should examine the totality of the circumstances of the intended employment. The petitioner will meet the relationship if he demonstrates control of the work of the beneficiary. He must also show that control will remain throughout the term of employment.

Want to learn more about how to sponsor h1b visa professionals?

If you have questions about employing non-immigrant foreign workers, the h1b visa route is one you may wish to consider. Also if you have questions about how to sponsor h1b visa professionals or have an issue with an h1b petition or transfer, contact Goodin Law P.A. today for a consultation.

Resources:

USCIS – Understanding H-1B Requirements

Renunciation of US citizenship

With concern over higher tax rates in the United States relative to some low tax destinations such as Singapore and Belarus, and the rise of economic citizenship in many emerging countries around the world a record number of United States citizens especially those who identify themselves as investors have sought renunciation of US citizenship as a tax planning strategy. Many have even inquired about “relinquishment” without full renunciation of US citizenship to avoid paying U.S. taxes while still preserving U.S. citizenship and its benefits.

Loss of Citizenship

Section 349 (a) of the Immigration and Nationality Act set out the expatriation acts by which a national of the United States by birth or naturalization can lose United States nationality. Formal or official renunciation at a U.S. consulate [Section 349 (a) (5)] is one means of losing United States nationality but it not the only means. Some United States citizens with dual nationalities who hold political office abroad may lose United States nationality when they take an oath of allegiance to a foreign state, if the act of taking the oath was done with the intent of relinquishing United States nationality.

Renunciation of US citizenship for tax reasons can make a former citizen ineligible for a U.S. visa

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added a new ground of inadmissibility for certain former citizens who renounce citizenship to avoid paying taxes. Section 212 (a) (10) (E) of the Immigration and Nationality Act states.

“Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible.”

But the ground of inadmissibility in Section 212(a) (10) (E) applies only to renunciations of U.S. citizenship that took place on or after September 30, 1996. Furthermore the statute requires specific intent to avoid paying U.S. taxes. Specific intent requires that the former U.S. citizen subjectively desired loss of U.S. citizenship to avoid paying U.S. taxes. Therefore the reason for renouncing U.S. citizenship is important. Public statements about the reason for renouncing US citizenship may come back to bite. But the surrounding circumstances of the renunciation may still prove specific intent to avoid paying U.S. taxes even if the former U.S. citizen was silent on the issue.

The regulations effecting the statute state that “an alien who is a former citizen of the United States, who on or after September 30, 1996, has officially renounced United States citizenship and who has been determined by the Secretary of Homeland Security to have renounced citizenship to avoid United States taxation, is ineligible for a visa under INA 212(a) (10) (E).” 22 CFR 40.105. But the statute has been criticized both for the ambiguity of its language and as a possible violation of international law.

Role of U.S. consulate

The role of the State Department and the consular officer is very limited in implementing this ground of inadmissibility. The extent of coordination between the Internal Revenue Service and the immigration agencies is unclear. But unless the applicant appears as a hit in the consular lookout system revealing a finding of inadmissibility under INA 212(a) (10) (E), a consular officer is required to assume that the visa applicant is eligible. So it is entirely possible that persons who renounce to avoid U.S. taxes may slip under the radar.

Conclusion

Renunciation of US citizenship is a very serious decision and is not just a matter for high net worth individuals. However choosing to live abroad as over 6 million Americans do, is not the same as renunciation. As with many areas of immigration law the general rules seem simple but the details and exceptions to the rules are complex and confusing. So look before you walk on thin ice. Before renouncing citizenship consult with both an immigration attorney and a tax attorney to evaluate the specific circumstances of your case as each case is unique. Under current immigration law even if you are found inadmissible a discretionary waiver may be available for non-immigrant admission into the United States.

If you are thinking about renouncing US citizenship contact our citizenship lawyer for a consultation to protect your rights.

CIRCULAR 230 NOTICE: IRS Regulations require us to inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transactions or matter addressed herein.

Resources for more information

1. Laura Saunders, Should you renounce Your U.S. citizenship W.S.J. , May 18, 2012

2. 77 Fed. Reg. 25538 – 25545 (April 30, 2012)

3. Antigua Starts Program to Sell Citizenship

What if I came here illegally?

How to get a green card

If you came here illegally the first thing you want to do is get legal status. And by legal status I mean getting a green card. Some people who enter the United States illegally may also be eligible for asylum if they have a well-founded fear of persecution on account of their race, religion, ethnicity, political opinion or membership in a particular social ground and the government of their home country is unwilling or unable to protect them.

There are many ways to get a green card but the most common way, especially for someone who came here illegally is through the family green card process involving an immediate family member. So as an immigration attorney, I have done cases for people who came here illegally for a very long time, like for more than 20 years and had an immigration petition filed by their adult son or daughter (over 21) in order to get their parents a green card and just to see the look of joy on their faces, it’s just amazing.

Green card by marriage

The other way to get a family based green card is through marriage. So if you came here came here illegally and you are in a real marriage with a United States citizen, then you can also be on a path to get a green card but here is the deal. Oftentimes you cannot get a green card directly without leaving the United States unless you are 245i eligible or you qualify for parole in place. Most people will have to get to a green card through a process called consular processing.

First an immigration petition is filed for you while you remain in the United States. Once the petition is approved then an unlawful presence waiver is filed by you and once it is approved and immigrant visa processing is completed by the National Visa Center and you have an interview date at an embassy abroad, e.g. Cuidad Juarez, you leave the United States to attend your interview.

After you have attended the interview overseas you will get your immigrant visa and upon returning you will become a permanent resident upon admission back to the United States and you will get your green card in the mail, usually within 60 days. This type of family green card processing time can typically be around 12 -15 months. By this I mean the time from when the petition is filed until you get green card status.

If you stay married and live with that US citizen for three years after gaining permanent resident status (your green card), then you can apply for naturalization to become a US citizen. Otherwise you typically have to wait for 5 years.

Some  persons in removal proceedings may qualify for a green card using cancellation of removal. This will be discussed in a different post. If you have any green card issues such how to get a green card for a family member of a permanent resident or questions about immigration waivers, book an appointment to discuss your case with an experienced Las Vegas green card attorney. Call 702-423-2721. We would be happy to assist.

Stokes Interview – green card marriage immigration interview

The marriage immigration interview known as the Stokes interview

So you are sure you love each other and the marriage green card interview should be as easy as a walk in the park. Right? Some people fail to convince a USCIS officer at their first marriage immigration interview that they have a good faith marriage. The USCIS may subject the couple to a marriage fraud interview known as a Stokes interview at a later date. Alternatively, an immigration officer who suspects fraud in the marriage based green card application may interview you and your spouse separately at the first interview. A Stokes interview is a taped interview in which the USCIS interviews the married couple individually and compare their answers. The goal is to decide whether you have a good faith marriage or a marriage solely for getting a green card.

At the Stokes interview, you and your spouse will be sworn in and questioned separately. The examiner will compare your answers to the answers of your spouse and look for any discrepancies. If you give the same answers, you will pass. If you don’t, you will be allowed to explain any differences.

As you and your spouse are under oath, and the interview is taped, your answers must be truthful. Giving false testimony under oath will not just result in denial of your green card, but it is also a crime. You should not guess about what your spouse will say. If you do not know the answer or do not remember, it is better to say so and not guess or make things us.

What to bring

The petitioner must bring a United States passport or birth certificate (green card if the petitioner is a permanent resident) and a driver’s license. You must bring the original documents you brought to the first interview to the Stokes interview, including your marriage certificate and marriage termination documents for you and your spouse. Be sure to bring your passport, I-94, EAD and social security card if you have one. You should also bring any other documents to support the petition as the examiner should consider other evidence besides oral testimony. Examples of good faith marriage evidence include joint bank account statements, lease agreements, rent receipts, mortgage agreements, health insurance policies, utility bills, tax returns and pictures. You should also bring your last two pay stubs and statements and employment letters for both of you. Your spouse work letter should be on company letterhead signed by an official of the firms, stating when employment began, salary, dependents claimed and whom to notify in case of emergency.

Stokes-interview__1

Types of questions that may be asked

The Stokes interview is similar to the first green card marriage interview except that you and your spouse will be questioned separately. In the weeks before the interview you and your spouse should focus on communicating with each other and spending time together. Pay close attention to the minor details of your marriage.

Examples of the type of questions marriage immigration interview questions that may be asked at a Stokes interview are:

  1. How did you meet your spouse?
  2. When did you meet?
  3. How long did you know each other before you got married?
  4. Where did you go on your first date?
  5. Where did you and your spouse live before getting married?
  6. Who was at your wedding?
  7. Did you have a wedding reception?
  8. Describe or draw the lay out of your bedroom.
  9. How many TV’s do you have?
  10. What is the last movie you and your spouse saw together?
  11. Where did you go on your honeymoon?
  12. When was the first and last time you and your spouse were intimate?
  13. What type of contraceptive does your spouse use?
  14. Where did you and your spouse first live together after marriage?
  15. What side of the bed do you sleep on?
  16. What brand of cigarette does you spouse smoke?
  17. What is the color of the wall in your bedroom?
  18. Do you have lamps in the bedroom?
  19. What did you have for dinner last night?
  20. What is your spouse’ favorite food and drink?
  21. At which restaurant did you last have a meal together?
  22. What is the color of your spouses tooth-brush?
  23. What is the color of the living room carpet?
  24. How many brothers and sisters does your spouse have?
  25. What are the names of your spouse’s parents?
  26. What did you give your spouse as a birthday gift last year?
  27. What is your spouse’s date of birth?
  28. Is your spouse left-handed or right-handed?
  29. Has your spouse ever been arrested?
  30. Has your spouse met your mother?
  31. Do you pay the water bill separate from the rent?
  32. Did your spouse sleep at home last night?

As a general rule, you should listen carefully and only answer the questions that the interviewer directs to you. Remain calm and answer the questions truthfully. Do not argue with the examiner.

Finally, you have the right to bring an attorney and a translator with you to the interview. In fact you are strongly urged to bring an attorney to make sure that the questions asked are fair and legally relevant to the process. An attorney will also be able to raise objections with the examiner and/or examiner’s supervisor during or after the interview. Remember it is your responsibility to make sure that your attorney shows up on time as the absence of an attorney by itself is not generally good cause to postpone an interview.

Are you a United States citizen deciding to get married to a foreign national? For more guidance on marriage based green card interviews or marriage visa issues with an experienced immigration lawyer contact us at (702) 423-2721 to schedule an initial consultation.

The American F Visa for International Students

Qualifying for F Visas

F visas can open worlds of opportunity for international students coming to the United States to pursue academic studies and language training. F visas can also be used to keep up status for certain family preference immigrants such as the older children of permanent residents. It should not matter if similar educational opportunities are available in their home countries provided they meet all the requirements.

What is an f-1 student visa or what is F1 status?

The immigration authorities grants an F1 student visa or status to an applicant who meet the following criteria:

1. F visa applicant must seek temporary admission to the United States solely to pursue academic studies at a recognized educational institution or language training program.

While not the same as that for a B visitor, at the time of the application or interview the applicant must be able to show that he intends to leave the United States upon completion of the study. The applicant must be able to prove that he is a good faith student and not a person whose purpose is to work in the United States.

F visa

2. Acceptance at a school/ Payment of SEVIS Fee

The applicant must have an SEVIS Form I-20 “Certificate of Eligibility for Non-immigrant Student Status,” issued in his or her name by a school approved by the Service for attendance by F-1 foreign students. In addition, applicants must pay the SEVIS Fee (I-901 payment). The U.S. Customs and Border Protection has the discretion to admit international students for only 30 days and issue Form I-515A, “Notice to Student or Exchange Visitor” to remedy any defects in their documentation. International students seeking first admission with f visas must attend the school indicated on their visas. Aliens granted F visas to attend private elementary and high schools and who instead attend publicly funded schools will void their f visa status unless they can show they have reimbursed the local educational agency for the full economic cost of attendance and that their presence did not exceed 12 months.

3. Availability of enough funds

The applicant must have documentary evidence of financial support available in the amount indicated on the SEVIS Form I-20. Sometimes the applicant cannot show availability of sufficient funds outside the United States because and foreign currency restrictions may complicate matters. If a US person is sponsoring the student, the US person should sign an I-134 Affidavit of Support with proper supporting financial documentation. The affidavit of support is a legal obligation and not a mere formality to assure the student’s entry into the United States.

4. Minimum preparation for intended course of study.

The student must have sufficient academic credentials to attend the institution.

5. Maintain a full course of study.

The student must pursue a course that will lead to a specific educational or professional goal. In the context of pursuing studies at the undergraduate or college level, the student must keep up at least 12 semester or quarter hours per academic term unless less is necessary to complete the course of study in a current term [8 C.F.R. 214.2(f)(6)].

F2 Visas – Admission of spouse and minor children of students with F visas

The spouse and minor children of an F-1 student are eligible for admission to the United States in F-2 dependent status. The spouse and child must demonstrate that the F-1 student has been admitted and is, or will be within 30 days, enrolled in a full course of study, or engaged in approved practical training following completion of studies. The spouse and minor children of an F-1 student with an SEVIS Form I-20 must present their own original SEVIS Form I-20 issued in the each of their names released by a school authorized by the Service for attendance by F-1 international students. F-2 dependent children are allowed to attend school up to grade 12 without an I-20 and change of status to F-1.

If you are coming to study in the United States, it is crucial that you have all the required documents including, a record of fee payment, payment for SEVIS fees and a valid I-20 signed by the Designated School Officer of the educational institution you will attend. You should consider consulting with a dedicated immigration lawyer to help you through the f1 student visa processes and aid you to maintain your status or change your status as new opportunities present themselves over time.

For more information:

Immigration and Customs Enforcement (Student Process Steps)

H1B Transfer 2016

Requirements for H1B Transfer

The h1b transfer (portability) provisions of section 105 of the American Competitiveness in the 21st Century Act (AC21) [INA 214(n)] permits an H1B transfer to a new employer under certain conditions. To transfer, the prospective employment must meet all the requirements of INA § 214(n) including the requirement that the new company file a new h1b transfer petition while the potential worker is in a “period of stay authorized by the Attorney General.” Even when the person’s first I-94 has expired, the h-1b alien may port to a new employer B if a non-frivolous petition of H1b visa status from the first employer A is still pending.

New LCA and H1B Petition

For the H-1b transfer to occur the new employer must first file a Labor Certification Application with the Department of Labor followed by a new H-1B petition on form I-129 for the prospective worker. The H-1B petition must not be frivolous. The I-129 petition is used to ask for classification as H-1B and extension of status for the potential temporary worker.

Even when the employee moves to a new location with the same employer the AAO’s 2015 precedent decision in Matter of Simeio Solutions, require the company to file an amended h1b petition if a new LCA is needed because of a change in the H-1B worker’s place of intended employment.

Transfer while new H1B petition is pending

As soon as the new company files a petition with the USCIS (meaning received), the prospective employee is then authorized to work for the new employer until USCIS approves the new petition. A company is not a new employer if there is a merger or corporate reorganization, and no LCA or new petition is required if there are no material changes regarding work that could affect eligibility for H1 b status.

In the best interest of the H1b worker, it is sometimes advisable to wait until the new H-1B petition is approved before the employee begins employment with the new employer. In this case, the new employer may file an I-907 Request for Premium Processing (filing fee is $1225) to speed up a decision on the petition to 15 calendar days.

Conclusion

To take advantage of the H1b transfer provisions in 2016, the worker must be in the U.S. by lawful admission and must not have engaged in unauthorized employment since that admission. If you have h1b transfer 2016 questions, please consult an immigration lawyer for guidance. Goodin Law P.A. offers immigration legal services in H-1B cases. Call us to schedule a first consultation.