Q&A: Family Immigration

July 3, 2000

One of the most common types of problems we are presented with involve family immigration issues.

The U.S. Immigration system treats very differently a U.S. citizen's or permanent resident's close family members (parents, spouses, and unmarried and under-21 children) and other family members (siblings, married and over-21 children, and others).

The family members in the first category are called "immediate relatives." Immediate relatives have a much easier process and shorter wait to get their green cards than other types of relatives.

Other family members may also be eligible for a green card, as well, but there is a much longer wait. This is because only a few visas and or green cards may be granted to non-immediate relatives each year. Therefore, there is a backlog of such people waiting to get their visas. Depending on the relationship, the wait can be as little as 18 months to as much as 11 years.

Of course, there are many different issues that arise in family immigration. I have presented below some of the questions that we have gotten related to this.

Q.

My 13 year old granddaughter Maria is in Russia. Her mother, who is my daughter, recently died. Her father abandoned Maria and her mother before Maria was born. I want to adopt her, and bring my granddaughter to live with me in the U.S. How can I do this?

A.

Unfortunately, Maria would not be able to get any immigration benefits based upon her relationship to you as a granddaughter.

However, there is one possible solution to this problem. If you are a U.S. citizen, you may be able to adopt her and bring here as your child.

In general, the requirements are as follows. First, you must be a US citizen, over 25 years old (if you are married there is no age requirement). Second, Maria must be considered an "orphan," which means she lost both her parents due to death, disappearance, abandonment, etc.; or she lost one parent, and other parent is not able to take care of her and has released her for adoption. Third, she must be under 16 years old. Fourth, you must have a "home study" done by an adoption agency. This is basically a report by a private agency that conducts an investigation of you and your home environment to determine you would be a good parent. Fifth, you must prove that you comply with the pre-adoption requirements of your own state.

In fact, in some cases people may already be considered "parents" of a child without having to go through this procedure. You must have lived with, and had legal custody of, Maria for at least two years. "Legal custody" means a grant of legal authority over your granddaughter from the Russian government, but it does not necessarily mean an adoption. The grant of legal custody must have occurred before Maria's 16th birthday.

If you have met these qualifications, then the INS will consider Maria your child for immigration purposes, and she should be eligible for a visa as an immediate relative.

Q.

I have a green card, and I am trying to bring my wife here from Russia. However, a friend told me that my wife would have to wait several years until a visa would be available to her. Is that true?

A.

That depends upon when you were married. If you were married after you entered the country on an immigrant visa (or after you became a permanent resident, if you last entered the country on a nonimmigrant visa) then your wife would have to wait several years for a visa.

If this is the case, then the procedure would be as follows. First, you must file an immigrant petition, Form I-130, and get approval from the INS.

Second, the State Department must give your spouse an immigrant visa number. This visa number would be your wife's place in the line to wait for a visa. Currently, spouses of permanent residents have to wait about four years until they can get a visa.

Third, when the visa becomes available, your wife would have an immigrant visa processed for her at a U.S. consulate (unless she is already in the U.S., in which case she would obtain a green card through the INS).

However, it would be much easier if you married your wife before you entered the country on an immigrant visa (or before you became a permanent resident, if you last entered the country on a nonimmigrant visa). In that situation, your wife would probably be eligible to come here right away.

That is because your wife would be eligible for "following-to-join" benefits. To get your wife a visa, you would simply have to get the INS to notify the appropriate U.S. consulate that you have become a permanent resident. You file Form I-824 to the INS in order to accomplish this. When the consulate is notified, you would need to have your wife contact the consulate to begin her visa processing.

There is one very important to remember if you obtained your green card by the lottery. To benefit from this "following-to-join" rule, your wife must obtain her visa before September 30 of the year whose lottery program you won. In other words, if you got your green card from winning the year 2000 lottery program (called "DV-2000), your wife has only until September 30, 2000, to obtain her visa. Otherwise, she would have to get her visa based on the procedure mentioned above.

Q.

I came here as a refugee a year and a half ago. I have been working hard, and I finally think I am able to support my wife and children. I would like to bring them here as soon as possible. Is there a special procedure for this?

A.

Yes. If you have already been admitted to the United States with refugee status, you may apply for to allow your family to come here. This means that your wife and children may be granted refugee status based on your own refugee status. Your family would be classified as "following-to-join derivative" family members.

It is important to remember that you have only two years after your entry into the United States to apply for your family to come here, so you need to move quickly.

Remember, the relationship between you and your family members have been in existence when you were admitted as a refugee, and must continue to exist when you apply for them to come. Also, your children must be unmarried and under 21 years of age. To apply, you will need to file Form I-730, (Refugee/Asylee Relative Petition)

FOR MORE INFORMATION:

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

Q&A: Travel Documents

May 29, 2000

Last week we discussed asylum and refugee status, the basis for receiving it, and the procedure for applying for it. We frequently get questions from people who have already filed their asylum applications, or who are here on refugee or parole status, but who do not yet have their green cards. It can take more than two years for such people to receive their green cards. However, many people need or want to travel outside the U.S. during that time. In addition, we get questions from people who already have gotten their green cards, but are worried how long they can travel outside the US without jeopardizing their status. The questions below are typical of the questions we get about these issues.

Q.

I came here from Georgia six months ago as a refugee. Now I need to travel to Israel to see my ill mother, but I lost my Georgian passport before I came here. Is there a way to get a temporary passport from the U.S. government?

A.

Yes. Certain types of people can obtain "travel documents" that will enable them to travel without a passport from their own country, and to return to the U.S. at the end of their travel. For example, refugees and asylees may be eligible to obtain "Refugee Travel Documents;" political asylum applicants may be able to obtain "Advance Parole;" and permanent residents are generally eligible for "Reentry Permits."

In your case, you should apply for a "Refugee Travel Document." This document allows refugees or asylees to return to the US after travel abroad. You should apply for a refugee travel document before you leave the US. However, there are some cases where INS officials will issue travel documents to refugees or asylees who are physically outside the US. A refugee travel document is generally valid for one year.

Q.

My wife and I applied for political asylum last month. Now an emergency has arisen with our family, and we need go back to our country for a short visit. What will happen to our case if we leave?

A.

The INS will consider that you are abandoning your case (and you won't be allowed back in the country without another visa), unless you apply for a travel document prior to leaving the U.S. You will need to apply for a travel document called "Advance Parole." Advance parole may be available to certain types of people such as: political asylum applicants, parolees, and people who have applied for permanent residence.

Keep in mind that returning to your own country, may weaken your case for political asylum. This is because the basis for your request for political asylum is that you are unsafe or subject to persecution there. If you go there for other than a real emergency, you run the risk of diminishing your claim of persecution.

The requirement to obtain Advance Parole does not apply to people, or their dependants, who are maintaining valid H-1B status or L-1 status. These types of visas automatically provide the right to leave and reenter the U.S.

Q.

My sister in Russia has muscular dystrophy, and needs constant attention. We have found a medical specialist in the U.S. that will be able to provide here with treatment that she wouldn't be able to obtain in Russia. We applied for a tourist visa for her several months ago, but the visa was denied. Is there some other way to bring her into the U.S. for this treatment?

A.

You may try to apply for her to come here based upon "Humanitarian Parole." This is another type of "Travel Document" that is similar to "Advance Parole" I wrote about in the previous answer. In general, Humanitarian Parole is available on a case-by-case basis to people who are not otherwise eligible for a visa. The applicant must present a strong case that he or she needs to come into the U.S. to prevent a humanitarian emergency. This type of parole is potentially available to people in your sister's situation, although it is possible to be denied even in such a sympathetic case. One should really show that there is a serious risk to the applicant's life or health to have a strong case. The INS is very selective in granting humanitarian parole, and denials may not be appealed. (Of course, many Jewish citizens of countries of the former Soviet Union have come as parolees under the "Lautenberg Amendment," but that is actually a special use of "Humanitarian Parole." It is generally not so easy to get.)

Q.

I finally received my green card in the mail a month ago. That is good because I am taking my vacation in July, and want to travel to France. I plan to stay there for one month. Will that be a problem? Are there any papers I have to file with the INS before I leave?

A.

If you are going to be gone for one month, your permanent residence status should not be affected. In fact, you may stay outside the country for up to six months and still be okay.

Many people will ask us about traveling for a year or more. There are actually two things to be concerned about when deciding how long you can travel outside the country on a green card.

The first is that you should not break the continuity of your US residence. If you do so, the result will be that you will have to start all over again counting the years until you are eligible for citizenship. That is because eligibility for citizenship is based upon continuous residence. Leaving the country for more than one year breaks this continuity. How do you prevent breaking continuity? Simply do not stay outside the country for more than one year at a time.

The second concern is that you should not appear to be abandoning your US residence. This is far more important, because if you are considered to have abandoned your US residence, your green card is worthless.

If you need to travel outside the country for more than one year (but less than two), and you are a permanent resident, you must apply for a "Reentry Permit." A reentry permit is not required for a trip that is shorter than one year. (However, even with a Reentry Permit, you are still subject to the break in continuous residence). A Reentry Permit is also available for permanent residents who want to travel, but cannot get a passport from their own country. A Reentry Permit is valid for two years.

Q.

How can I apply for a "Travel Document"?

A.

You would apply for all three types of Travel Documents mentioned above (Refugee Travel Document, Advance Parole (and Humanitarian Parole), and Reentry Permit) using INS Form I-131. This form is appears to be very simple, but, as always, you should be very careful to fill it out correctly and completely. In addition, if you are using Form I-131 to apply for Advance Parole or Humanitarian Parole, you should consider using a lawyer to assist you. This is because of the difficulty in writing a very compelling case, and because of the inability to appeal a denial of these types of requests. (However, denials of applications for Refugee Travel Documents and Reentry Permits may be appealed).

FOR MORE INFORMATION:

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

Q & A: Refugee and Asylee Status

May 15, 2001

We frequently get questions about political asylum and refugee status. On the one hand, this is very familiar to many recent immigrants, because many have come to the United States under the U.S. refugee program. But on the other, there are many details of these area of immigration that are not easily understood.

We hope that some of these questions and answers may help you to better understand how political asylum and the refugee system works.

Q.

I am a citizen of Russia, in the US visiting my cousin. She was a citizen of Russia too, but came here as a refugee several years ago, and is now a US citizen. I would like to apply for refugee status like my cousin did, but don't want to go back to Russia. May I apply for refugee status or political asylum? What is the difference?.

A.

Political asylum status and refugee status are very similar. The only substantial difference is that political asylum is requested in the United States and refugee status is requested outside the United States. Since you are in the U.S., and don't want to leave, you would therefore need to request political asylum, not refugee status.

In general, you must apply for political asylum within one year of entry into the country. However, you may apply later than one year if conditions in your country have changed or if your personal circumstances have changed within the past year prior to your asking for asylum, and those changes of circumstances affected your eligibility for asylum. In certain circumstances, you may be excused from the one year deadline if extraordinary circumstance prevented you from filing within the one year period after your arrival.

The fundamental basis for receiving political asylum is that you unable or unwilling to return to your home country because of persecution, or a reasonable and honest ("well-founded") fear of persecution, because of your race, religion, nationality, membership in a particular social group, or political opinion.

You should be able to prove specific acts of such persecution that have happened to you in the past, or a real and reasonable reason to fear that such acts of persecution may happen to you in the future if you return.

The people you are claiming persecuted or will persecute you must be members of the government, or people who the government is unwilling or unable to control.

Q.

I understand the basic idea behind political asylum, and I believe that I would qualify for it. But how do I apply for it, and how long will it take?

A.

You ask for political asylum by completing INS Form I-589 (Application for Asylum and for Withholding of Removal). Although the form appears to be rather simple, it is actually quite complicated. You should not attempt to prepare it without the assistance of a professional. The most important part is where you explain your basis for claiming political asylum. This part requires a strong command of English, a thorough understanding of the law, and a good understanding which facts must be included, and which to leave out.

The political asylum request is filed with the INS Service Center for your area (there is no fee), and then processing is taken over by one of the INS Asylum offices. You will have to go to an interview with an Asylum Officer, where you will explain your situation in person. Again, you should definitely have professional assistance for this. The Asylum Officer may grant your request if you have a sufficiently strong and well-prepared case. Otherwise, the Asylum Officer will deny your case, or refer the case to an Immigration Judge for a decision. You may expect the INS and Immigration Judge to process your case within 180 days.

If the Immigration Judge also denies your request, you may appeal the denial to the Board of Immigration Appeals. This step may take several months, or even years.

If you are granted asylum, you will be allowed to live and work in the United States. You also will be able to apply for permanent resident status one year after you are granted asylum.

Q.

My visa expired a few months ago, and I am currently not in status. My friend told me that I can get legal, and even get a work permit, if just apply for political asylum. Is that true?

A.

If you are out of status now, you can apply for political asylum and save yourself from deportation until the political asylum case is decided. You can even get a work permit in about 180 days after applying, if your case is still in the process of being decided.

However, applying for political asylum does not really correct your "illegal" status. That means that you cannot change to most other types of status while still in the U.S., and that if your case is eventually decided against you, you will be ordered deported and have many immigration penalties placed against you.

So, applying for political asylum is probably not a good way to fix your illegal status, unless you have a real claim to political asylum.

FOR MORE INFORMATION:

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

Q & A: H-1B Visas

April 10, 2001

Q:

I have heard a lot about H-1B visas. Can you tell me what it is and who can qualify for it? My brother, who is visiting me from Russia, is a computer programmer. He would like to stay in the U.S. to work. Is the H-1B visa appropriate for him?

A:

The H-1B visa, also called the Guest Worker visa or Specialist Worker visa, is for people to come to the U.S. to work for up to 6 years. The general requirements are that that your brother have a university degree (or equivalent experience) and that the position be a professional one that genuinely requires at least a bachelor's degree.

It is a very popular visa, and is the immigration avenue used most frequently by the high technology industry to obtain staff from other countries.

Generally, high-tech positions easily qualify, as well as, for example, architects, lawyers, physicians, professors, and some managerial positions.

Your brother must first locate an employer who is willing to hire him, and to sign a visa petition on his behalf.

Once an employer is found, the process begins with papers being filed with the U.S. Department of Labor, and then with the INS. Upon approval, your brother will apply for a change of visa status with the INS. (If he were in Russia, he would apply at a U.S. consulate there)

In many cases - especially where the employer is not very small or hires many foreign workers -- the employer=s human resources department will take care of the papers. In some cases, the employer may be small, new, or otherwise too unsure, incapable, and/or unwilling to take care of the paperwork itself. In such cases, the foreign worker will be expected to do so.

In many such cases, the employer will expect the foreign worker to pay for everything as well. However, one important point to remember in this regard is that the employer, and not the foreign worker, must pay $500 of the $610 fee itself.

Whoever takes care of the paperwork, it is the employer who will ultimately sign the petition, and who will obligate itself under the government documents filed.

The length of the process can vary, but your brother can probably expect approval within three months. The approved petition gives your brother the right to work in that position, and with that employer, for three years. He may apply for one three-year extension prior to the end of his current three-year period.

Q.
I am medical researcher on an H-1B, and my employer recently gave me a promotion to head researcher of my project . Do I need to do anything with my visa status? A. One thing that is frequently overlooked by employers and foreign workers alike is that changes in the the terms of employment, or the location of employment, may require that an amended H-1B petition be filed.

In your case, it sounds like you will not be required to to file an amended petition, because you are staying within the same occupation. In general, promotions that do not involve a change in occupations would not require an amended petition. However, if the promotion moved you into a different occupation or job category, then an amended petition would be required. For example, if you were promoted from a medical researcher to a medical school instructor, then an amended petition would be required. Likewise, in many cases changes in geographic location of employment, even though you are with the same employer, would require that additional papers be filed with the government. The key consideration is whether the change in your employment was a "material change." Whether a change is "material" is something that, frequently, only experience can answer.

Q.

I am a pharmacy student in Ukraine, and have located a pharmacy in Baltimore that would like to hire me for a year-long internship. However, I don't think I am qualified for the H-1B visa because I don't yet have a degree. Isn't there some way I can get a work visa so I can gain experience in my field?

A.

There are some alternatives to the H-1B visa for certain individuals who would like to work in the U.S. for practical training purposes.
One of the most popular of these is the J-1Visa. This visa is available for people coming to the U.S. to engage in on-the-job training with American organizations for up to 18 months. This training can include productive work for which you can get paid. If you already have located a employer, your next step will be to apply for participation in a program with an officially-recognized J-1 sponsor, such as the Association for International Practical Training in Columbia, Maryland. The J-1 sponsor is not the same as the employer for whom you wish to work.

The J-1 sponsor is an organization that will assist you to get your J-1 visa, ensure that all the requirements are met by you and your employer, and administer your program from start to finish. Some of the more important requirements that you, as a J-1 trainee, must meet include that you (1) are at least 18; (2) understand English; (3) are seeking training, and not just work; (4) have the appropriate education and background for the employment you are seeking; and (5) intend to return home at the end of your program.

The employer must meet such requirements as (1) preparing some sort of training plan or curriculum for the trainee; (2) paying the trainee a reasonable wage; and (3) providing the opportunity for some sort of cultural activities for the trainee. To apply, both you and your employer must complete submit forms to the sponsor, along with along with an application fee of $400 - $1000.

The sponsor will accept your applications if all is in order, and will return to you a signed visa sponsorship document that will enable you to apply for a J-1 visa at a consulate or the INS. The entire process can take up to ten weeks or longer.

One important thing to remember is that in some cases J-1 visa holders may be subject to a 2-year foreign residency requirement. This is the requirement that a J-1 visa holder must live in their home country for two years after their J-1 expires, before they are eligible for immigrant status, and certain types of non-immigrant, status.

However, this requirement does not apply to you unless (1) your training is being financed by your government or the U.S. government; (2) the skills you are training for are in short supply in your home country; or (3) the training you are engaged in is graduate medical education or training.

FOR MORE INFORMATION:

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