K and V Visas

February 5, 2001

As noted in my previous article the President signed into law a new law in December, called the "Legal Immigration and Family Equity (LIFE) Act." Most of you are already well aware of this law, and of many of its major benefits – such as the "new" 245(i) covered in my previous article.

However, there are some lesser known aspects of this law, that may give a big benefit to many recent immigrants seeking to reunify their families. These aspects are the expanded "K" visa benefits, and the new "V" visa.

Q.

I am a permanent resident, and got married soon after I got my green card. Unfortunately, my wife remains in her home country of Ukraine, and cannot get a tourist visa to come visit me. Although I filed a petition for her three years ago, which was approved, we are still waiting for her "priority date" to become current. Can the new law help me?

A.

Yes. As you know, because your wife is the beneficiary of the petition she is an "intending immigrant." She therefore will not be granted a tourist visa by a consulate. However, the new law creates a new "V" visa, which would allow her to enter the U.S. and obtain work authorization here while waiting for her priority date to become current.

In short, the new "V" Visa, allows the spouses and minor children of lawful permanent residents who have been waiting more than three years for a green card, to enter the United States and be granted work authorization. In order to qualify the spouse or child must meet the following criteria:

First, a green card petition must have been filed on or before enactment of the law – December 21, 2000.

Second, the beneficiary have been waiting at least 3 years. The petition must either have been pending with the INS for three years or more or, if the petition has been approved, the spouse or minor child must have been waiting at least three years for their "turn" in the green card line.

Third, the law provides that periods in the United States in unauthorized status will not prevent someone from obtaining a V visa. The law also would allow individuals already in the United States to apply to "adjust status" to the new V category, even if they are in the United States unlawfully. With the reinstatement of Section 245(i), V visa holders will be eligible to adjust their status to legal permanent resident under that section.

Q.

I was naturalized in October, and in November filed a petition on behalf of my new husband who lives in Russia. However, I heard that the INS can take up to two years to process the petition. Will the new law give me any way to shorten the wait?

A.

Yes. The new law also covers your situation.

In order to address the severe backlogs on the processing of petitions for family members, the LIFE Act helps the spouses of United States citizens who are outside of the United States and waiting for the approval of an immigrant petition. Any minor children who are seeking to accompany the spouse are also provided protection.

The bill expands the use of the "K" visa, which currently allows fiancées of U.S. citizens to enter the United States for the purposes of getting married, to be used by spouses of U.S. citizens who are already married and are waiting outside of the United States for the approval of their immigrant visa petitions. Any minor children who are accompanying the spouse can be included in the petition. In order to qualify the spouse and minor children must meet the following criteria:

First, an immigrant visa petition must have been previously filed. The law requires that the U.S. citizen file an immigrant petition before a visa can be issued to the spouse abroad. The K visa will allow the spouse abroad to enter the U.S. and await the approval of the petition.

Second, the recipient of the K visa must be outside of the United States. The law only authorizes the visa to be issued by a consular officer outside of the United States. There is no provision to "adjust status" for someone already in the United States in an unlawful status.

Third, the K visa petition must be filed in the United States. The petition for the K visa must be filed in the United States by the U.S. citizen spouse.

If marriage occurs outside of the U.S., the K visa must be issued by the consulate where the marriage occurred. Where the marriage to the U.S. citizen occurred outside of the United States, the statute says that, at the time of admission, the alien must have "a valid non-immigrant visa issued by a consular officer in the foreign state in which the marriage was concluded."

The bill provides that this new K status is available both to individuals with currently pending green card petitions and future applicants.

FOR MORE INFORMATION:

Contact us at 410-719-1501.

Immigration Waivers, Appeals & Litigation

December 4, 2000

Q.

As a teenager, I entered the USA from Russia to be a nanny. I didn't know I needed a work permit, so I told the border control the truth. I was deported and banned. Now I am engaged to be married to a US citizen. Is there anything I, or a lawyer can do now, 7 years later?

A.

Normally someone who is ordered deported by an immigration judge cannot return for at least 10 years, unless they obtain special permission from the Attorney General. You should file an "Application for Permission to Reapply for Admission into the United States after Deportation or Removal" on INS Form I-212.

It is very important that Form I-212 be well-documented before filing your application, and that the person preparing the Form on your behalf understand the law well.

Q.

I am worred that the INS will deny my case because they don't believe my marriage was genuine – I am 12 years older than my husband. How difficult is it to appeal, and what are the steps?

A.

First, the INS must approve a spousal visa petition if the marriage was genuine at the time of the marriage. A 12-year age difference is only one of many things that will be considered by the INS in determining whether the marriage was genuine.

Second, it is important to show that the marriage was known about by friends and family, that you and your husband live together and that you are keeping your financial business (i.e. income tax returns, insurance policies, checking and bank accounts) together.

However, if a marriage petition is denied by the INS, the petitioner (the US citizen or permanent resident spouse) may appeal the decision to the INS administrative appeals board. If this appeal is denied, the petitioner may then go to Federal Court to try and change the decision.

Q.

My situation is that I am recently married to my illegal alien boyfriend. What do we need to do next? I am a US citizen. Will he be deported? My husband has been here illegally for almost four years.

A.

If your husband entered the U.S. on a visa and overstayed or violated his status, he can adjust his status to permanent resident without leaving the U.S.

However, if he entered the U.S. without inspection by a border official, he is ineligible to get a green card while remaining in the U.S. After your visa petition (Form I-130) for him is approved by the INS, he will need to go abroad to apply for permanent residence. However, he will be subject to a ten-year bar of inadmissibility. Therefore, to get around this, you will need to submit a waiver of the ten-year bar on his behalf. You should complete and thoroughly document that you will suffer "extreme hardship" if your husband is forced to live outside the United States for 10 years. Submit an "Application for Waiver of Grounds of Excludability" (Form I-601) when requested by the Consulate.

Fortunately most of such waivers are approved. Unfortunately, the State Department must send the waiver application to the INS, where backlogs of 9-12 months are common. During this time, your husband must remain abroad.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

Q&A: Affidavits of Support

One of the most misunderstood aspects of immigration law is the income requirements for sponsoring a family member, and the affidavit of support that is used to show that the income requirements have been met.

There are two types of affidavits of support. One type, form I-134, is used in cases that do not involve family immigration. One example is where you want to sponsor a friend to visit you on a tourist visa, and you need to prove to the consulate that you will provide for him or her while she is here. There is no absolute minimum income requirement in these cases.

The other type of affidavit of support, form I-864, is used in family immigration cases (as well as certain employment-based immigration cases where a close family member owns a substantial portion of the petitioning employer). There is an absolute minimum income requirement.

The following questions and answers will explain the requirements and details regarding form I-864.

Q.

What are the requirements for the affidavit?

A.

For the affidavit of support to be acceptable to government, the affidavit must be executed as a contract:

in which the sponsor agrees to support the immigrant at an amount not less than 125% of the federal poverty guidelines until either the immigrant becomes a citizen of the U.S. or the immigrant (or the immigrant's spouse or parent) been employed in the U.S. for a minimum of 10 years;

which is legally enforceable against the sponsor by each of the following persons or entities: the immigrant, the federal and the state government, or by another entity which provides means-tested public assistance to the immigrant;

where the sponsor agrees to accept the jurisdiction of any federal or state court.

Q.

Who may be a sponsor?

A.

A sponsor must: (1) be a U.S. citizen or permanent resident; (2) be at least 18 years of age; (3) be domiciled in the U.S.; and (4) be filing a visa petition on behalf of the immigrant or accept liability for the beneficiary together with the petitioner.

Normally, a sponsor must show the ability to maintain an annual income of at least 125% of the federal poverty guidelines. The poverty line increases as household size increases; therefore, the more members in the sponsor's household there are, the higher the sponsor's income must be.

If the sponsor is an active duty member of the U.S. Armed Forces, he or she need demonstrate an income equal to 100% of the federal poverty guidelines.

In order to prove that the sponsor has fulfilled the above requirements, he must either:

Provide certified copies of his federal income tax returns for the past three years and a written statement under oath the copies are certified copies of such returns; or
Provide evidence of significant assets of the immigrant or of the sponsor which are available for the support of the sponsored alien.

Sponsors are obligated to inform both the INS and the state of the immigrant's residence of any change of address within 30 days. Failure to do so could result in a fine of up to $2,000. If the sponsor is aware that the immigrant has received a public benefit, the amount of the fine may be raised to $5,000.

Q.

What if I break my promise I made in the Affidavit of Support?

A.

If a governmental agency receives notice that an immigrant has received a means-tested public benefit, it may request reimbursement from the sponsor. If the sponsor does not respond within 45 days, the agency may bring a court action against the sponsor. The immigrant may also bring an action against the sponsor.

Certain government assistance programs are exempted from the law. These include school lunch programs, child nutrition benefits, emergency medical benefits and non-cash emergency disaster relief.

A statute of limitations applies where the immigrant last received a benefit over 10 years ago.

Q.

Are these requirements and penalties applicable to the first type of affidavit of support you mentioned?

A.
No. These are applicable only to the form I-864 which is used in family immigration cases, and employment immigration cases where the petitioner is a close family member.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.

Q&A: Social Security

September 3, 2000

Elderly immigrants face many problems that their younger counterparts do not. For example, older immigrants may have a harder time adjusting to a new culture, learning a new language, or getting a driver's license.

Other times, the problems may be more important – such as making enough money to put food on their table. Luckily, social security helps many elderly immigrants support themselves and meet the basic economic requirements of survival in this society.

Because immigrants frequently travel for long periods outside the country, they may have problems with social security that other elderly Americans do not. This article covers this basic question – "What happens to my social security "What happens to my social security payments when I leave the country?"

Q.

I am a US citizen, and planning to travel to Israel to for 3 weeks next summer. Will I continue to get my social security payments?

A.

The first important thing to understand is that you must be outside the US for at least 30 days for there to be any affect on your payments. So, in your case, you will not have to worry about your social security payments.

Q.

What if we extend our visit to 30 days or more? Then what will happen?

A.

If you are a U.S. citizen, you may receive your Social Security payments outside the U.S. as long as you are otherwise eligible for them. However, there are certain countries where payments will not be sent. For example, payments will not be sent to countries of the former Soviet Union, (other than Armenia, Estonia, Latvia, Lithuania and Russia).

Q.

What about citizens of other countries who are receiving social security? How will their travel affect their payments?

A.

Citizens of certain other countries (mostly in Western Europe, but also Canada and Israel), Social Security payments will keep coming no matter how long you stay outside the U.S., as long as you are eligible for the payments and are within a country in which you may receive payments.

Citizens of countries other than these will have their payments stop after they have been outside the U.S. for 6 months. (There are a rare few exceptions to this rule).

Once this happens, they cannot be started again until you come back and stay in the U.S. for a whole calendar month. This means you have to be in the U.S. on the first minute of the first day of a month and stay through the last minute of the last day of that month.

Q.

Are there other requirements for regaining social security for dependents and widows/widowers?

A.

Yes. If you receive benefits as a dependent or survivor of the person entitled to social security (the "worker"), special requirements may affect your right to receive social security payments while you are outside the U.S.

If you are not a U.S. citizen, you must have lived in the U.S. for at least 5 years. During that 5 years, the family relationship on which benefits are based must have existed. For example, if you are receiving benefits as a spouse, you must have been married to the worker and living in the U.S. for at least 5 years.

Children who cannot meet the residency requirement on their own may be considered to meet it if it is met by the worker and other parent (if any). However, children adopted outside the U.S. will not be paid outside the U.S., even if the residency requirement is met.

The residency requirement does not apply if you are a citizen of Israel, and in a few other cases.

Q.

What must I do to protect my rights to benefits?

A.

If you are living outside the U.S., the U.S. social security administration will send you a questionnaire periodically to fill out and return. This informs them whether you are still eligible for benefits. You must return the questionnaire to the office that sent it to you as soon as possible; if you do not, your payments will stop.

In addition to responding to the questionnaire, it is your responsibility to notify the social security administration about changes that could affect your payments. If you fail to report something or deliberately make a false statement, you could be penalized by a fine or imprisonment. You may also lose some of your payments if you do not report changes promptly.

Q.

Must I pay taxes on my social security payment while I am overseas?

A.

Yes. If you are a U.S. citizen or resident, up to 85 percent of the Social Security benefits received may be subject to the Federal income tax.

If you file a Federal income tax return as an "individual" and your combined income is $25,000 to $34,000, you may have to pay taxes on up to 50 percent of your Social Security benefits. "Combined income" means your adjusted gross income plus nontaxable interest plus one-half of your Social Security benefits. If your combined income is over $34,000, you may have to pay taxes on up to 85 percent of your Social Security benefits.

If you file a joint tax return, you may have to pay taxes on up to 50 percent of your Social Security benefits if you and your spouse have a combined income of $32,000 to $44,000. If your combined income is over $44,000, you may have to pay taxes on up to 85 percent of your Social Security benefits.

If you are a member of a couple and file a separate return, you probably will pay taxes on your benefits.

If you are not a U.S. citizen or a resident, Federal income taxes will be withheld from your benefits. The tax is 30 percent of 85 percent of your benefit amount.

It will be withheld from the benefits of all nonresident aliens, except those who reside in countries which have tax treaties with the U.S. that do not permit taxing of U.S. Social Security benefits (or provide for a lower tax rate).

After the end of the year, you will receive a statement showing the amount of benefits you received during the year.

In addition to US taxation, many foreign governments tax U.S. Social Security benefits as well.

Keep in mind that Social Security benefits are calculated in U.S. dollars. They are not increased or decreased because of changes in international exchange rates.

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.