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Gross

Immigration law is a mystery and a mastery of obfuscation

An official spokeswoman for the United States immigration agency once said, on the record in the Washington Post (April 24, 2001), “Immigration law is a mystery and a mastery of obfuscation, and the lawyers who can figure it out are worth their weight in gold.” The truth of this statement was plainly illustrated in an Anchorage Daily News article published on Friday, January 24, 2020, “Alaska governor asked Trump to help attorney general bring his wife and stepson to U.S. from Colombia.”

Disclaimer: Although I am an immigration lawyer, the persons named in the article are not my clients, and I am making the following statements based only on the facts stated in the article, the documents that appear when one clicks on the links in the article, and other public information. This article is not legal advice, and if you are reading this article, you should not take any action based on the statements in this article without consulting a competent immigration attorney. Individual circumstances vary greatly.

The facts described in the news article are as follows. A United States citizen who lives in Alaska fell in love with a foreign woman (“an alien” in the parlance of the Department of Homeland Security) who lived in Colombia and is a citizen of Colombia. The woman had a son from a prior relationship; the son is a minor child and also holds Colombian citizenship. The United States citizen married the woman in Colombia on November 19, 2016, and thereafter sought to bring his wife and his stepson to the United States legally.

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One Alaska - No on 1

The usual possible pathways to this goal are two: Under the first, traditional, 3-step pathway, a United States citizen files an I-130 Immigrant Visa Petition (current US Government filing fee, $535.00) with United States Citizenship & Immigration Services (USCIS), for the foreign spouse, and another one for the foreign stepson (that’s another $535.00). Two petitions are necessary because there are no “derivative” family members in the case of the spouse of a United States citizen.

Note: the news article quotes the United States citizen expressing surprise that his stepson was not a “derivative” of his wife’s case. Under existing law, the stepson cannot be a derivative of his mother’s I-130 visa petition and needs his own I-130 petition. “Derivative” cases are allowed under fiancée visa petitions and certain other cases like employment cases, but not for I-130 immigrant visa petitions for the stepchildren of United States citizens. See the Foreign Affairs Manual (“The INA does not generally accord derivative status for family members of immediate relatives as it does for preference applicants. . . . A U.S. citizen must file separate immediate relative petitions for the spouse, each child, and each parent.”)

Currently, USCIS is taking between 7.5 months to 17.5 months to process I-130s for the spouses and children of United States citizens. See (https://egov.uscis.gov/processing-times/). This is typically the longest part of the process. After USCIS processes and approves the visa petitions, USCIS will then transfer the two files to the National Visa Center (NVC), part of the United States Department of State (DOS). This is “step 2” of the “3-step” pathway. The US citizen will then be required to interact with the NVC for a period of time (currently many months) to upload the documents that DOS requires before DOS will schedule an “immigrant visa interview” at the designated US consulate in the foreign spouse’s country. Scheduling such an appointment today can take many months; the immigrant visa interview is “step 3” of the “3-step” pathway. Finally, the intending immigrant and her son will appear for visa interviews overseas, will undergo medical exams and background checks in the foreign country, and will ultimately be issued “immigrant visas” that allow them to travel to the United States and be accorded “lawful permanent resident” status when they enter.

The news article indicates that the case at issue has involved a wait of “20 months and counting”—but that is not so unusual these days. The first step of the “3-step” process alone can take 17.5 months, according to the USCIS website.

If the marriage is less than two years old when the foreign spouse becomes a permanent resident, she and her son will be granted “conditional” lawful permanent resident status and will have yet another petition (Form I-751, $680.00) to file with the immigration agency, if they want to keep their green cards. (According to the facts in the news article, the United States citizen and his spouse are due to file that petition together on or about February 15 of this year.) One year later, assuming that the couple remains married and living together in the United States, the foreign spouse may apply for United States citizenship (Form N-400, $725 current fee)—if she has been physically present in the United States for the required time. When she becomes naturalized, her minor child will automatically become a United States citizen under the Child Citizenship Act, assuming that he is in the United States, has a green card, and is under the age of 18 when his mother naturalizes as a United States citizen. If he wants proof of his United States citizenship from the immigration agency, however, he must file another form and pay a fee. (N-600, $1170.00).

A second pathway is more complex and expensive, but has many of the same features. On this pathway, after an I-130 for the spouse is filed, the United States citizen can then file a second petition (I-129F, another $535.00) seeking “K-3” status for his wife and “K-4” status for his stepson. That petition can only be filed after the I-130 for the spouse has been filed, and only if the I-130 hasn’t been approved yet. The stepson can be a “derivative” on that petition, but the United States citizen must also at some point file an I-130 petition for the stepson before the stepson turns 21. Once the foreign spouse and stepson enter the United States on their K-3 and K-4 visas, they must each file “adjustment applications” (Form I-485 and associated forms, $1225 for the spouse, fees vary for the stepson, depending on his age). They must also await USCIS adjudication of their adjustment applications inside the United States before obtaining green cards, so there is some further delay. This second pathway is sometimes chosen by United States citizens who consult with an immigration lawyer and determine that their particular circumstances warrant this pathway.

If the wife and stepson are in the United States legally in some other status before the United States citizen husband files anything for them, a process called “one-step adjustment of status” is possible, but I won’t discuss that process here because the facts in the article do not make it appear that this was an option for the Colombian woman and her son.

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Young

The article and the supporting documents at the link indicate that the United States citizen pictured in the article initially opted to file an I-130 visa petition for his wife, but not for his stepson. It is unclear why he did not file for his stepson. He apparently also did not file a K-3/K-4 petition. Accordingly, there was no lawful basis to grant any immigrant visa to his stepson at the time when his wife immigrated. The stepson was “left behind,” so to speak. Eventually the United States citizen filed an I-130 immigrant visa petition for the stepson, but not until May 2018, about a year after he had filed for his wife.

The wife immigrated on May 14, 2018 and received a “conditional” green card. Immigrants who have green cards are subject to a strict set of laws, and can lose their green cards if they violate those laws. One of the laws is that they must reside in the United States. They can travel abroad, but potentially can lose their green cards if they leave the United States for more than six months (immigration lawyers call this “abandonment”). If green card holders are absent from the United States for more than a year, two “bad things” can happen: First, they cannot use their green cards to get back into the United States,[1] and second, they interrupt their “continuity of residence” such that they have to “start over” on their eligibility to naturalize as United States citizens.

Immigration lawyers encourage their clients to discuss foreign travel with their lawyers before they leave. If an immigrant believes that he or she might be outside the United States for more than a year, the lawyer will file for a “reentry permit” for the immigrant in advance of the trip. The law says “An alien must be physically present in the U.S. in order to file the application, and any application submitted by an alien who is abroad when the application is made must be denied.” See 8 CFR 223.2(b)(1). An application for a re-entry permit is made to USCIS on Form I-131 ($660).

In the Anchorage Daily News article, repeated reference is made to the fact that the foreign spouse is outside the United States, and did not request a “reentry permit” before departure. If that’s true, it’s too late. She cannot get one now; the law does not allow it. But there are other options.

One is the “SB-1” Special Immigrant Visa. A lawful permanent resident who leaves the United States for more than a year can attempt to get an SB-1 visa in order to return. The United States consulate in Bogotá provides information about this visa on its website. Here is a quote from that website:

Lawful Permanent Residents (LPRs) who have been outside the United States for more than one year and did not obtain a reentry permit from U.S. Citizenship & Immigration Service (USCIS) are considered to have abandoned their residency. However, they can sometimes qualify to re-immigrate with returning resident status. To qualify as a returning resident, you must prove that:

You did not intent [sic] to give up your residency when you left the United States, and you could not return for reasons beyond your control and for which you were not responsible.

Please think carefully before applying for returning resident status as payment for this service cannot be refunded if you fail to meet the qualification. In general, you should consider asking a U.S. citizen or LPR family member to file a new I-130 petition with USCIS because it is very difficult to qualify as a returning resident.

There is also the option of trying to return by throwing oneself on the mercy of US Customs and Border Protection by appearing at a United States Port of Entry and asking for a hearing on the “abandonment” issue, before an immigration judge. I do not recommend that anyone try this without a full discussion with a competent immigration lawyer, because this process is complex and the immigrant may face detention while awaiting a hearing with a judge. See the following publication by the American Immigration Lawyers Association publication, “Know Your Rights: What to Do If You Are Detained at a Port Of Entry (Lawful Permanent Residents).” For more information on the complex law at issue here, please also refer to the finely detailed, 56-page article, somewhat dated but exhaustively describing this process, called “You Can Go Home Again—How to Prevent Abandonment of Lawful Permanent Resident Status,” by Gary Endelman, a former private immigration lawyer who is now an immigration judge in Texas.

If a green card holder has been absent from the United States for more than a year and manages to be admitted back into the United States, she has saved her lawful permanent residence from abandonment but interrupted her “continuity of residence.” She therefore cannot naturalize without re-establishing her residence in the United States. You can read more about this here. Here is a brief quotation from the USCIS Policy Manual on this topic:

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84th Street

An applicant who is required to establish continuous residence for at least 5 years and whose application for naturalization is denied for an absence of one year or longer, may apply for naturalization four years and one day after returning to the United States to resume permanent residence. An applicant who is subject to the three-year continuous residence requirement may apply two years and one day after returning to the United States to resume permanent residence.

When a green card holder is married to and living with an American citizen spouse, she can normally naturalize under the “three year” rule. In the case described in the news article, the Colombian woman would have been eligible to apply for United States citizenship on or about February 15, 2021—about a year from now—had she not left the United States for more than a year. Now that she has left the United States for more than a year, however, she will have to “restart the clock” on her naturalization eligibility and may apply for naturalization two years and one day after returning to the United States—if she comes back on an SB-1 visa or otherwise without losing her original “lawful permanent residence” status.

One question asked in the news article is whether anything has changed in the past decade. None of the laws that I have described above have changed. The same law is in effect today as existed more than ten years ago. What has changed is the implementation of these laws. USCIS is taking a very long time to process cases, and in particular, the National Visa Center has become broken and dysfunctional. NVC was once a highly efficient and professional operation, but those days are gone. Today the NVC is beset with numerous problems and it often makes mistakes with cases, driving visa applicants and attorneys equally crazy with its nonsensical behavior. For example, NVC often sends me emails with personal information about people who aren’t my clients, in violation of privacy laws, or asks repeatedly for the same documents.

With regard to privacy laws, I also make the following note: The Anchorage Daily News published links to sensitive documents relating to the family discussed in the article. These documents were not redacted. It is not advisable for anyone to post photos of immigration documents on the Internet unless such documents have been redacted to conceal birth dates, USCIS or “alien” numbers, and case processing data.

In closing, the news article focuses on yet another issue: Does it help for Alaskans to ask their elected officials for assistance with immigration matters? The answer is, yes and no.  My office has assisted dozens of Alaskans with seeking assistance from our Alaska Congressional Delegation over the years. It is perfectly fine for Alaskans to seek such assistance. Such letters often helped under the Obama Administration, but they appear to be less helpful under the Trump Administration.

My experience recently has been that Congressman Don Young’s office does not assist constituents with immigration matters at all. Senator Lisa Murkowski’s office sometimes assists people, but without follow up phone calls or emails to a specific staff person, Senator Murkowski’s office sometimes does not respond to constituent letters. Among the three Alaska Congressional Delegation offices, Senator Dan Sullivan’s office is the most responsive to constituents, but often even a letter from Senator Sullivan does little or no good when dealing with the bureaucrats at the Department of Homeland Security and the Department of State.

To date, I have not seen any benefit when people have written to President Donald J. Trump. Nevertheless, I encourage people to write to him and to the Alaska Congressional Delegation. Even if such letters do not make a difference in an individual case, they make our elected officials aware of the “mystery and obfuscation” of U.S. immigration law. Congress created these arbitrary, complex, and broken laws, and only Congress can ultimately fix and simplify them. Fixing and simplifying these laws will spare the pain of family separation that is being inflicted not only on the family discussed in the paper, but on hundreds of other Alaskan families who are in similar situations.

[1] There are some exceptions that do not apply to the case described in the news article, such as military family members and certain Federal employees.

Margaret Stock is an Alaska attorney who works at Cascadia Cross Border Law Group in Anchorage, Alaska. A graduate of Harvard and Radcliffe Colleges, the Harvard Kennedy School, the Harvard Law School, and the US Army War College, she is a retired lieutenant colonel in the Military Police, US Army Reserve. She was named a MacArthur Foundation Fellow in 2013. She is listed in “The Best Lawyers in America” and “SuperLawyers” for her expertise in US citizenship and immigration law.

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Tom McGrath
7 months ago

The Attorney General, a lawyer, got this mucked up. As a non-attorney I would never try to figure out this maze. There are way too many regulations and seem to be made complex for no good reason.

Travel Brochure
7 months ago

Immigration in the US is a rather complicated thing. If you’re not very knowledgeable with the the immigration law then you’ll likely to have a failed visa application. The immigration law has become complex and the government makes it more complicated with the new rulings.

Family Immigrant Visas
7 months ago

Immigration in the US has become inaccessible because of the changes made in the immigration law giving less option to potential immigrants. Even green card petition have been held pending and processing time has become lengthy which is giving disadvantage to the petitioners and their dependents.