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 is issued by a US consulate for entering the United States for to marry the petitioning US  citizen within 90 days of admission and apply for a green card (i.e. permanent resident status).

A k1 fiance visa petition must 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 drugs 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 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

Baby Born Abroad to Green Card Mother

Q. I have a green card and I gave 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 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 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 a green card lawyer during this process as not all agency personnel may know about this process. Want to learn more? Contact us at Goodin Law P.A., an immigration law firm in Tysons Corner, VA.

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

The not so nice 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?  If you fail to convince the immigration officer at your first marriage immigration interview that you have a good faith marriage, the USCIS may give you a written notice of a marriage fraud interview known as a Stokes interview. Alternatively, an immigration officer who suspects fraud may interview you and your spouse separately at the first interview. A Stokes interview is a taped interview in which the USCIS separates you and your spouse and ask questions. The goal is to decide whether your marriage is in good faith and not solely for gaining an immigration benefit.

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 given an opportunity to explain any differences.

As you and your spouse are under oath and the interview is taped it is very important that your answers 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

It is important that the petitioner brings either a U.S. passport or a driver’s license and a social security card. You must bring the original documents  you brought to the first interview to the Stokes interview. Be sure to bring your passport, I-94 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 the interview. Examples are bank statements, lease agreements, rent receipts, mortgage agreements, health insurance policies, utility bills, tax returns and photos. You should also bring your last two pay stubs and statements and employment letters for both of you. The letters should be on company letter head 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 the lay out of your apartment?
  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 last time you and your spouse were intimate?
  13. Where did you and your spouse first live together after marriage?
  14. What side of the bed do you sleep on?
  15. What brand of cigarette does you spouse smoke?
  16. What is the color of the wall in your bedroom?
  17. Do you have lamps in the bedroom?
  18. What did you have for dinner last night?
  19. What is your spouse’ favorite food and drink?
  20. At which restaurant did you last have a meal together?
  21. What is the color of your spouses tooth-brush?
  22. What is the color of the living room carpet?
  23. How many brothers and sisters does your spouse have?
  24. What are the names of your spouse’s parents?
  25. What did you give your spouse as a birthday gift last year?
  26. What is your spouse’s date of birth?
  27. Is your spouse left-handed or right-handed?
  28. Has your spouse met your mother?
  29. Do you pay the water bill separate from the rent?
  30. Did your spouse sleep at home last night?

You should listen carefully and only answer the questions that the interviewer directs to you personally. Do not answer any questions addressed to your spouse without first asking permission from the immigration officer. 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 legally relevant to the process. An attorney will also be able to raise objections with the examiner and/or examiner’s supervisor 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.

Form more guidance on marriage visa issues contact us at (702) 423-2721 to schedule an initial consultation.

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.

How to find a good immigration lawyer

Finding a good immigration lawyer is one of the most critical steps to get your immigration case approved and secure yourself and your family. Finding a good immigration lawyer can seem overwhelming because of the competitiveness of the legal industry. The following are quick tips for finding an immigration lawyer that is the right fit for you.

Get referrals for a good immigration lawyer from family or friends

Friends and relatives are usually ready to recommend an excellent attorney and point out a poor one. However, if someone suggests a lawyer, ask the person why. You may ask an attorney who you have worked with to recommend an immigration lawyer. People you trust are the best source for finding a good immigration lawyer.

Consider an attorney who is a specialist

In the United States, most lawyers specialize in specific areas of the law. A general practitioner may not know that much about your immigration matter. Immigration law is complicated and changes continuously. It is not an area for a jack of all trades attorney. The more focused an attorney’s practice is, the more likely you are to receive the quality service you deserve.

Schedule an appointment for a consultation

Though many people can feel intimated meeting a lawyer it is best to consult with an attorney about your case before hiring his services. There is nothing like the interaction between you and the attorney in helping you select the best immigration lawyer for you.

Immigration lawyer consultation fee –  Paid or free, does it matter?

You should not base your choice of attorney on whether the attorney has a consultation fee or not. An attorney may offer free consultations and charge you $8000.00 for your case where one with a $100 consultation fee may charge you only $2500.00 to get the same result. A free consultation can sometimes cost you money.

Let’s face it; no one works for free. Some savvy people will never consider an attorney if he does not charge for his time. With free consultations, the attorney may not spend much time with you unless he believes you will become a paying client.

Paid meetings, on the other hand, are a legal service with obligations on both sides. You should expect that the attorney will take the time to give you helpful information and some preliminary legal advice in exchange for the consultation fee.

Most experienced immigration attorneys may charge for a consultation because they realize that their experience and insights can be very helpful to a prospective client. Their insights may save you from making costly mistakes based upon ignorance of immigration laws. From the consultation you will also be able to get expert answers about your case, learn about the best path to meet your immigration goals and learn about the costs and risk of making your application.

Questions to ask your immigration lawyer

  1. How long has the lawyer been practicing immigration law? How much of the attorney’s work is immigration related?
  2. Does the attorney charge for a first consultation before taking your case? If there is a charge, how much does it cost and how long is the initial consultation? Who will choose the attorney and pay the legal fees for an employment-based immigrant petition?
  3. How much will it cost to hire an attorney? Does the attorney bills using an hourly rate or does the lawyer use flat fees? Some attorney’s offer payment plans while others do not.
  4. Does the attorney get paid before or after he renders service?
  5. Is the attorney a member of the American Immigration Lawyers Association?
  6. How much are the government filing fees for my case?
  7. Are there any costs in addition to attorney’s fees and filing fees? You need to be aware of other costs which you may have to meet for your case . These may include the costs of a medical examination and translation services. In an employment case there is usually the cost of credential evaluation services for foreign degrees.
  8. If you hire the attorney will the lawyer personally handle your case? You should also ask about who you will communicate with if you have questions.

Ask about fees and costs AFTER the consultation.

It is better to ask about immigration lawyers fees and costs after the lawyer knows the relevant facts of your case. Similarly, a lawyer who does not ask about the facts of your case before quoting a fee may be doing you a disservice. A lawyer has a duty to check the facts of a case before quoting a fee. An attorney may charge less for a case when she is familiar with the facts and get to know the parties. Ask whether the lawyer has payment plans for her legal services. Besides mitigating your risks, payment plans can serve to make legal services more affordable for most people.

Compare fees and billing schedules

Price is self-explanatory. However, the price is only one thing to consider. Living and working in the United States is an important matter and price alone should not be the reason for a choice of attorney. Consider the lawyer’s trustworthiness, skill, and experience. An attorney who does not return your calls, treat you with respect or clearly explain your case is not the best immigration lawyer for you at any price.

Verify the attorney’s credentials

Make sure the person is a qualified attorney and not an immigration consultant, or a former lawyer who has lost her license. Contact your local state bar or the state bar that authorized the lawyer to find out if the attorney is in good standing, and if he or she has ever been subject to disciplinary action. Also you may may check the Department of Justice website to find out if the immigration lawyer is presently subject to discipline or was Subject to Discipline in the Past by the Executive Office for Immigration Review’s Attorney Discipline Program.

Read immigration lawyer reviews

Nowadays most people search for an attorney online. Many review sites have emerged. Some are more transparent and trustworthy than others. The sites serve the human urge to get reassurance from peers before an important decision. Therefore before choosing an attorney, you should read immigration lawyer reviews on such sites as Yellow Pages, Yelp, and Google+. Please be aware that some online review sites may give more prominence and higher rankings to attorneys who give them advertising dollars. So pay more weight to any recommendations that you receive from family and real people you know and trust.

It is about having a good working relationship

Not every immigration lawyer is a good fit for everyone. Even though the attorney may have great credentials and has practiced for many years, he or she may not be the best immigration lawyer for you, if you are not comfortable confiding in the attorney and relating to him or her.

While you want a good immigration lawyer, attorneys also want good clients, i.e. people who are cooperative, appreciative of their work and who can pay for legal services. They also want to work with people who will value their advice and listen to them. After all, the attorney-client relationship must work for the client as well as the attorney. After practicing for several years, most attorneys develop a six-sense for persons who make good clients and those who do not. Warning signs of people who may not make good clients include:

1. A person who does not bring relevant documentation to the first consultation or a person who misses the first meeting.
2. A person who consults the attorney just before a filing deadline or immigration court hearing, that they have known about for months.
3. A person who terminated his former lawyer(s) and who owes the attorney(s) money for services rendered or time devoted to the case.
4. A person who is reluctant to sign a legal services agreement and pay the first deposit.

5. A person with very unrealistic expectations of such factors as the documentation involved, the processing times and the fair value of quality legal services.

6. Persons who do legal work on their own and need an attorney to correct their mistakes.

The immigration code is complicated and confusing, and there are not always quick and easy answers to immigration questions. No lawyer can or should guarantee results or imply that she has a special connection with government agencies that guarantee a positive outcome. The best immigration lawyers are often those with the experience to appreciate the complexity of the law in the real world. They do not guarantee results, just their diligent hard work in all the circumstances.

Pick the best immigration lawyer for you

After evaluating the attorneys, select the one you get to know, like and trust. An important part of hiring a lawyer is having the peace of mind that comes from a good working relationship with an expert you trust. Last, do not become paralyzed by inaction but trust your gut after doing your homework. Invest a small amount of time in the process and you will get the best outcome.

For more information:

American Immigration Lawyers Association (AILA) Immigration Lawyer Search*
* Not all members of AILA take part in AILA Immigration Lawyer Referral

State and Local Bar Associations

How to file a form I-751 waiver petition

The i-751 self-petition

Green card removal of conditions can be tricky as many marriages break down or end in divorce. If you are a conditional permanent resident, it is important that you contact a green card attorney at the first signs of conflict. Do not wait until you have a complete marriage meltdown before seeking professional help. The i751 is one of those immigrant forms you must file to maintain your permanent resident status. This is not an option. Avoid having your form i-751 or i 751 waiver denied because you did not seek legal counsel to protect your permanent resident status.

Section 216(c) of the Immigration and Nationality Act (INA) requires a conditional permanent resident who obtained that status (a 2 year green card) through a marriage of less than two years to file a joint petition to remove conditions his or her on green card. The petition is made using USCIS form I-751.

The joint petition

The joint petition must state that the following is true about the qualifying marriage and the immigration petitioning process:

1. The marriage was lawful at the place where it occurred;

2. The marriage is not annulled or terminated other than by death;

3. The marriage was not for obtaining permanent resident status for the alien, and

4. No fee or other consideration was given (other than attorney’s fees) for a petition under section 204(a) or subsection (d) or (p) of section 214 of the Immigration and Nationality Act.

The purpose of the petition for green card removal of conditions is to prove that the marriage was proper and not for bypassing immigration laws. A failure to file a timely joint petition will result in termination of permanent resident status and the start of deportation proceedings. This joint petition must be filed within the 90-day period before the 2 year anniversary of conditional permanent resident status. A late filing may be excused with a reasonable explanation of good cause and extenuating circumstance such as death of a family member, hospitalization, complications due to childbirth or other circumstances beyond one’s control. See INA § 216(d)(2)(B). If the service center director is satisfied that extenuating circumstances exists and if he approves the petition, any notice to appear that is issued before jurisdiction vests in the immigration court must be cancelled under section 239.2 of Title 8, Code of Federal Regulations (8 CFR). See, 8 CFR § 216(a)(6).

i-751 conditions-conditions i-751Waiver I-751 Requests

In some circumstances  a joint petition is not possible and removal of conditions i-751 waiver petition is permitted under section 216.5 of Title 8, Code of Federal Regulations (8 CFR). A waiver request may be filed at any time before a final order of removal or deportation. It is used where the conditional resident was not at fault in failing to meet the joint filing requirements, and he is able to establish one or more of the following requirements: (i) Deportation or removal from the United States would result in extreme hardship; (ii) The marriage upon which his or her status was based was entered into in good faith by the conditional resident alien, but the marriage was terminated other than by death, and the conditional resident was not at fault in failing to file a timely petition; or (iii) The qualifying marriage was entered into in good faith by the conditional resident but during the marriage the alien spouse or child was battered by or subjected to extreme cruelty committed by the citizen or permanent resident spouse or parent. 8 CFR 216.5 (a)(1)-(2). A waiver petition may also be filed were the marriage is terminated by death. A waiver petition that is filed after a final order of deportation will be denied based upon the final order. The reason for the denial is because the alien’s conditional resident status has been terminated by the final order and the alien no longer as the status for which he is seeking a removal of condition.

Filing limitations on waiver requests

Waiver request petitions have no specific filing period as do jointly filed petitions which must be filed within the 90-day period immediately preceding the second anniversary of the CPR’s admission or adjustment. They may be filed at any time between the grant of CPR status and a final order of removal or deportation. There is also no regulatory limitation on how many times a CPR may file a petition whether they are joint petitions or a waiver request. A denial of a petition does not prevent the alien and petitioning spouse from filing a new one.

Joint petitions filed after the denial of a joint petition will be evaluated on the same basis as the denied petition unless the subsequent petitions contain additional or different evidence that overcomes the previous basis for denial. However a waiver request made after the denial of a joint petition will be evaluated on a different basis to the previous joint petition. It is the policy of the United States Citizenship and Immigration Services that successive or multiple filing of waiver petitions are more likely to exhibit fraud indicators and these petitions are vetted for possible fraud. If fraud is suspected, the service center director may refer the application to the appropriate local office and require that the alien appear for an interview.

Adjudication of I 751 waiver petitions

Section 216.5(e) of Title 8, Code of Federal Regulations (8 CFR) sets out the evidence that the director may consider in adjudicating a waiver request.

Extreme Hardship – only factors (financial, medical, mental etc.) that arose after the alien’s admission as a conditional permanent resident are considered. The CPR must prove hardship beyond that would be likely from an alien’s removal from the United States.

Termination of Good faith marriage – the commitment by both parties to the marriage as evidenced by the degree to which the financial assets and liabilities of the parties were combined, the length of time during which the parties cohabited after the marriage and after the alien obtained permanent residence, children born to the marriage and other pertinent evidence.

USCIS Form I-751Physical or Mental Abuse (of alien spouse or alien spouse’s child) – If the waiver is claimed on the basis that the alien spouse’s child was battered or subject to extreme cruelty by the petitioning spouse, the immigration status of the child is irrelevant. The conditional resident may still apply for a waiver under this ground regardless of her marital status. The conditional resident may apply for the waiver whether the CPR is still married and living with the abuser, separated or divorced. Threats of physical violence are sufficient. For physical violence the USCIS will consider expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel. For extreme mental cruelty, the USCIS will consider expert testimony from a licensed psychologist, therapist or social worker. The report submitted with the application should contain the full name and the licensing or certifying authority for the expert. One practice insight from my experience as a Las Vegas Us immigration attorney is  that it is important for you to have an on-going relationship with a psychologist or therapist while you are experiencing abuse. Testimony from unlicensed and untrained persons alone without expert testimony will not suffice to prove extreme mental cruelty though it may be used to corroborate the abuse.

For help with a waiver petition consult an attorney

Before you file an I-751 waiver petition consult an immigration lawyer. In many cases you can get your waiver approved without interview. If the USCIS requests that you attend an interview you should have attorney representation at the interview. If you are a conditional resident and have concerns about removal of conditions on a green card obtained through marriage, give Goodin Law a call to schedule a consultation with our experienced Las Vegas green card attorney. We have experience with challenging removal of conditions cases.