“KEEPING THE HOPE ALIVE:
CREATIVE WAYS TO OBTAIN
IMMIGRATION BENEFITS”
Jonelle Ocloo (Owings Mills, MD)
Catherine Reynolds (Washington, DC)
Amy Yergey (Gaithersburg, MD)
Suzette Blackwell (Falls Church, VA)
Overview
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Overview of Family Based Immigration
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Priority Date Retention
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K-1 visas:
1. K-1 or IV?
2. Matter of Sesay
3. K-2 overstays and aging out
•
Self-petitioning spouses of USC’s:
1. Widows and widowers of U.S. citizens and INA Section 204(l)
2. Abuse (VAWA)
3. Impact of separation/divorce during pending I-751
•
Affidavit of Support:
1. Maintaining domicile of petitioner
2. Self-sponsoring beneficiaries
•
Matter of Arrabally and Yerrabelly
1. Overview of the decision
2. Effect on spouses of US citizens, DACA applicants, TPS
Overview of Family Based Immigration
Overview of Family Based Immigration
Immigration Status of Petitioner
Eligible Family Member
Beneficiaries
Category in Visa Bulletin
Spouse
Immediate Relative - Not in the Visa Bulletin; Visa Immediately Available
Parent (Petitioner must be age 21)
Immediate Relative - Not in the Visa Bulletin; Visa Immediately Available
Children: Unmarried
(Under Age 21)
Immediate Relative - Not in the Visa Bulletin; Visa Immediately Available
Unmarried Sons and Daughters
(Age 21 and Older)
FB1
(Family-Based, First Preference)
Married Sons and Daughters
FB3
(Family-Based, Third Preference)
Brothers and Sisters
FB4
(Family-Based, Fourth Preference)
Spouse
FB2A
(Family-Based, Second Preference, A)
Children: Unmarried
(Under Age 21)
FB2A
(Family-Based, Second Preference, A)
Unmarried Sons and Daughters
(Age 21 and Older)
FB2B
(Family-Based, Second Preference, B)
United States Citizen
Lawful Permanent
Resident(Must an be Adult, 21
Years of Age or Older)
Preference Petitions vs Petitions for Immediate Relatives:
• Immediate Relatives are eligible for concurrent I-130/I-485 or to proceed with Consular Processing for an Immigrant Visa once the
I-130 petition is approved.
• A Beneficiary of a preference petition must wait for a visa number to become available before s/he can file the I-485 or apply for an
Immigrant Visa
Preference Petitions
•
Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored
preference limit of 226,000.
•
What about wait times for the various preference petitions? A look at the recent November 2012 Visa
Bulletin will give an idea of general wait times
Family-Sponsored
All
Chargeability
Areas
Except
Those
Listed
CHINAmainland
born
INDIA
F1
01NOV05
01NOV05
01NOV05 22JUN93 01JUL97
F2A
15JUL10
15JUL10
15JUL10
F2B
08OCT04
08OCT04
08OCT04 15OCT92 15FEB02
F3
01JUN02
01JUN02
01JUN02 15FEB93
F4
22MAR01 15MAR01 22MAR01 08JUL96
MEXICO
PHILIPPIN
ES
22JUN10 15JUL10
22JUL92
01MAR89
Priority Date Retention
• Automatic conversion and priority date retention if:
• Child in FB2A category becomes over 21, and drops down to FB2B category
for unmarried adult sons & daughters of LPRs
• Petitioner naturalizes, Child in FB2A moves to either become an Immediate
Relative of a USC or becomes FB1 (depending on child’s age if under or over
21)
• Beneficiary in FB1 category can become FB3 if Beneficiary marries
• Caution! No category for married sons and daughters of LPRs. So if
Beneficiary of FB2 category petition marries before the Petitioner naturalizes,
the I-130 becomes invalid
Child Status Protection Act (CSPA)
Definition of “child” in the INA as found at Section 101(b)(1) resulted in some children “ageing-out” of the immigration process
once they turned 21. CSPA, enacted August 6, 2002, amended the INA creating sections 201(f) and 203(h)
CSPA applies to:
• Immediate Relatives (including orphans and adopted children based on an I-600 and I-600A filing, and derivative child
of a widow or widower’s I-360 filing)
• Direct beneficiaries of family-based preference petitions
• Derivative beneficiary of family and employment based petitions
• Diversity visa derivative applicants
• Asylee and refugee derivatives applicants
CSPA does not apply to:
• NIV applicants
• NACARA/HRIFA applicants
• Family Unity applicants
• Special Immigrant Juveniles
• K2 children of K1 fiancés
Child Status Protection Act (CSPA)
• Immediate Relative Children: Once a child, always a child … unless you get married
o Immediate relative child’s age freezes on the date of filing the I-130.
o If LPR files for unmarried child before the child is 21, child’s age freezes on the date the
Petitioner naturalizes
• Do the Math! … How to calculate the beneficiary’s CSPA age
o Determine actual biological age of beneficiary on date the visa number first became
available
o Subtract number of days the immigrant petition was pending
o If the resulting number is less than 21 years old, then the beneficiary may benefit from
CSPA age-out protection
o Beneficiary must seek to acquire permanent residence within one year of becoming
eligible. “Seek to acquire” can mean: file Form I-485, submit Form DS-230, or file Form I824 on behalf of derivative. Some case law also indicates more flexibility.
Child Status Protection Act (CSPA)
Any hope for the aged-out child?
•
If you do the CSPA math, and the beneficiary is still 21 years or older at the time the visa number
becomes available, then automatic conversion may still be an option
•
Automatic conversion under the CSPA allows the aged-out child to retain the priority date of the original
immigrant petition
•
Adverse decisions from the BIA: Matter of Wang and Matter of Patel.
•
But … the 5th Circuit and 9th Circuit are keeping hope alive!
•
Split among the Circuits regarding whether the retention of priority date is application in all categories:
o 5th Circuit – Automatic conversion applies to all derivatives Khalid v. Holder, No. 10-60373 (5th Cir.
Sept 8, 2011)
o 9th Circuit - De Osorio v. Mayorkas No. No. 09-56846 (9th Cir. Sept. 26, 2012). This decision
overturned BIA in Matter of Wang and affirmed CSPA automatic conversion/priority date retention.
o 2nd Circuit – Automatic conversion limited to F2A derivatives. Li v. Renaud, 2011 U.S. App. LEXIS
13357 (2nd Cir, June 30, 2011)
K-1 Fiance(e) Visas
K-1 Fiance(e) Visas
Relevant Statutes:
•
•
•
•
INA 101(A)(15)(K)(i)
8 CFR 214.2(k)
9 FAM 41.81, N.2
O.I. 214.2(k)
K-1 Fiance(e) Visas
Key Requirements:
•
•
•
•
•
•
•
•
•
Fiancé of a US citizen,
Seeks to enter US solely to conclude valid marriage
Bona fide intention to marry within 90 days of fiance’s entry
No legal impediments to marriage
Met in person within 2 years of filing petition (unless waived)
Minor children under 21 may accompany fiancé on K-2 visa
No more than 2 previously filed K petitions filed by USC spouse in past 2 years.
USC spouse discloses any criminal history if any.
K-1 Beneficiary may seek Inadmissibility Waiver, through I-601, because K is treated like an IV,
but it is only fully effective once the intended marriage takes place. 8 CFR 212.7(a)(4).
K-1 Fiance(e) Visas
Immigrant Visa through K-1: 3 Step Process
• Step 1: I-129F Petition
• Step 2: Consular Processing and Visa Interview
• Step 3: I-485 Adjustment of Status Application and Affidavit of Support
Immigrant Visa through K-1: 3 Step Process
Step 1: I-129F Petition
• Allows the foreign national fiancé to apply for immigrant visa at consular abroad
• Must include bona fides of relationship, including proof that the petitioner and
beneficiary have met in the past 2 years and affidavits that the couple intends
to get married within 90 days of the FN’s US entry. 8 CFR 214(d)(1)
• I-129F Petition approval valid for 4 months.
Immigrant Visa through K-1: 3 Step Process
Step 2: Consular Processing
•
Submit to NVC:
o Forms DS-230, DS-156(in duplicate), DS-156K and photos
o Required civil documents ( birth certificate, police certificate, divorce or death certificates of prior spouses)
o Medical examination
• Practice Tip: Vaccinations are not required for medical evaluation [9 FAM 41.81 N108] but submitting proof
of vaccinations saves a step at the adjustment stage.
o More proof of relationship since filing I-129F
o Proof that beneficiary will not become public charge
o Practice Tip: Form I-134 can be used instead of I-864. Lower standard of proof (income must exceed 100% vs.
125% of poverty guideline)
Step 2: Visa Interview
o Processed like an immigrant visa at consulate
o Similar to marriage interview. Prepare fiancé. Know the USC family, important dates and all information provided
in the I-129F petition.
o 4 month petition validity
Immigrant Visa through K-1: 3 Step Process
Step 3: I-485 Adjustment of Status Application
•
Must marry within 90 days but not necessary to file I-485 within 90 days
•
I-864 must be submitted
•
New medicals do not need to be submitted [8 CFR 245.5] but proof of vaccines is required.
•
Employment Authorization is generally processed in 90 days after filing adjustment application.
o Practice Tip: In the interim, applicants are work authorized pursuant to K-1 status [8 C.F.R. 274a.12(a)(6)]and
may present I-94 card annotated with K-1 to satisfy I-9 List C documents for the 90 day duration of the K-1 status.
K-1 entrant may request friendly port office to annotate the card. A letter provided by the immigration attorney
explaining authorization to work pursuant to status may be helpful. [AILA InfoNet Doc. 111005570]
•
Divorce or Death after Marriage but Prior to Filing
o K-1 visa holder may be granted adjustment of status if the marriage to the petitioner no longer exists at the time
the application is adjudicated if:
o Married the USC petitioner within 90 days of entry as a K-1
o Marriage was bona fide
K-1 Fiance(e) Visas
K-1 Status in the US
•
•
•
•
•
No extensions of stay 8 CFR 214.1(c)(3)
May apply for work authorization
May not change status INA 248
May only adjust status through USC spouse who filed I-129F. INA 145(d).
K-1 and K-2 must leave the US if does not marry within 90 days.
K-1 Fiance(e) Visas
ADJUSTMENT OF STATUS
•
•
•
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INA 245(d) and 8 CFR 245.1(c)(6) Adjustment of Status for K-1 status fiancés.
Must Marry within 90 days.
File I-485, G-325A, I-765 and I-864. (I-129F takes place of the I-130)
Must prove admissibility at time I-485 filed. – I-864 required. I-864 remains
intact. INA 212(a)(4)(C). I-864 remains intact for spouse even though
divorced and I-864 can be submitted after divorced. 8 CFR 213.2(b)(1).
K-1 Fiance(e) Visas
Matter of Le- Children of Fiance(e)
• 8 CFR 214.2(k)(6)(ii) Children between age 18 and 21 can be derivative beneficiary of
an I-129F petition
• Children age 18-21 of foreign national cannot be considered step child of USC
petitioner in immigrant visa petition so an I-130 petition cannot be filed for them even if
their parents are immigrating.
• Plus, children who enter on K-2 before 21 may adjust after turning 21 (Matter Le)
• Matter of Le, 25 I & N Dec. 541 (BIA 2011) (child who is over 21 may adjust as long as
their parent married within the 90-day period), following Carpio case.
• Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010).
• Aytes Memo, HQOPRD AD07-04 March 15, 2007, AILA Doc. 07040618.
K-1 Fiance(e) Visas
K-1’s WHO DIVORCE USC SPOUSE
• Matter of Sesay, 25 I & N Dec. 431 (BIA 2011). K-1 can only adjust status
through the USC spouse.
• Birdsong v. Holder, 641 F.3d 957 (8th Cir. 2011). Notwithstanding 245(i) K-1
can not adjust through another (non-K-1) USC spouse.
• Matter of Zampetis, 14 I & N Dec. 125 (BIA 1972). K-1 may adjust if beyond
90 days in certain circumstances.
Self-Petitioning Spouses
Self-Petitioning Spouses of USC’s
• Widows and widowers of U.S. citizens and INA Section 204(l)
• Abuse (VAWA)
• Impact of separation/divorce during pending I-751
Self-Petitioning Spouses of USC’s
•
Upon death of USC spouse, I-130 petition automatically converts to I-360 self-petitions. INA section 201(b)(2)
(A)(i);C.F.R. section 204.2(i)(1)(iv)
•
Automatic conversion even when the marriage is less than two years old.
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Widow(er) of a U.S. citizen, regardless of the length of marriage, may file an I-360 self-petition even if their U.S. citizen
spouse never filed a petition on their behalf provided that :
o they were not divorced or legally separated from the US citizen spouse at the time of death,
o the petition is filed within two years of the death of the citizen, and
o the immigrant spouse has not remarried. INA section 201(b)(2) (A)(i); 8 C.F.R. §204.2(b)(2)(iv)
•
Widow(er)s present in the United States who qualify for adjustment of status may concurrently file an I-360 and I-485.
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Widow(er)s who become a permanent resident based on marriage to a deceased spouse are not subject to conditional
permanent residence.
•
INA 204(l) DEATH OF USC SPOUSE - K-1 who marries the petitioner within ninety days of admission and K-2 may
adjust status even when USC Spouse dies. INA 204(l), AFM 10.21(b) USCIS Policy Memo PM-602-17 (Dec. 16, 2010,
AILA Doc. 11011061. No I-864 required because meets exception. If USC dies before K-1 enters the US, the K-1 visa
not valid.
INA 204(l): Spouses (and other derivatives) of
Asylum, Refugee, T and U Petitions
U Visas – Helping Victims of Crime
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Created in October 2000 and regulations effective October 2007
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See Fed. Reg. 09/17/07 Vol.72, No. 179, P. 53013.
•
Available to victims of certain criminal activity who assist government officials in investigating or prosecuting the crime.
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Strengthens ability of law enforcement to investigate and prosecute such crimes as domestic violence, sexual assault and trafficking,
while offering protection to victims.
•
Victims are both direct and indirect. Direct victim suffered proximate harm, including bystanders. Indirect – if victim is deceased
incapacitated then spouse, child under 21 (or if victim under 21, his parents and unmarried siblings under 18). 72 FR 53014, 53017
(Sept. 17, 2007)
U visas provide:
•
Temporary nonimmigrant status (as a U visa holder) for 4 years for the applicant and derivative family members
•
Can apply for Permanent Residence after 3 years INA 245(m)
T visas – Trafficking
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5,000 visas per year for victims of severe trafficking. 22 U.S.C. § 7102
•
Must be physically present in the U.S. and the Secy. Of DHS and AG agree have complied with a request by federal, state or local law
enforcement agency to assist in the investigation or prosecution of trafficking crimes; or for a victim is unable to cooperate due to
physical or psychological trauma; or who is under 18 and would suffer extreme hardship upon removal
•
If the victim is over 21, spouse and children may be included
•
If under 21, T visa includes spouse, parents, and unmarried siblings under 18.
INA 204(l): Spouses (and other derivatives) of
Asylum, Refugee, T and U Petitions
• INA 204(l) may benefit spouses and other derivatives of deceased principal
refugees who want to adjust.
o The death of a principal refugee does not affect the eligibility of a derivative refugee for adjustment who has
already been admitted. INA 209(a); See Memorandum from William R. Yates to Field Offices, “Procedural
Guidance on Admission and Adjustment of Status for Refugees” at p. 9 (May 15, 2000).
o INA 204(l) may benefit the beneficiary of a Form I-730 if the principal dies before the derivative is admitted,
• INA 204(l) can benefit a spouse who seeks adjustment based on:
o a derivative asylum grant, under INA 209 ,
o a derivative T nonimmigrant under INA 245(l), or
o a derivative U nonimmigrant under INA 245(m)
• Derivative must still establish that he or she is eligible for adjustment, apart
from the qualifying relative’s death, under the governing statute.
Violence Against Women Act
(VAWA)
• 2000/2005: VAWA amendments. See 8 CFR 204.2
• VAWA Advantages – Self-petitioner files own petition on Form I360, bypassing abusive spouse. Once approved, apply for
permanent residence based on I-360 (or if spouse a USC can file I360/I-485 concurrently)
• For those in the preference category – apply for EAD and receive
deferred action status while waiting for priority date to become
current.
Violence Against Women Act (VAWA)
Who Qualifies for VAWA Self-Petitioning?
• Abused spouse (or intended spouse) of USC or LPR. See AILA InfoNet at Doc. No.
02091042 for more information on intended spouse.
• Abused child of USC or LPR parent includes non-abused spouse of USC or LPR
whose child has been abused by the USC or LPR spouse
• Abused parents of U.S.C sons and daughters 8 CFR 204 (a)(1)(A)
• Abused son/daughter of USC, if applying before 25 and can show abuse was a central
reason for not applying prior to age 21 and met all qualifying factors before age 21.
See 8 CFR 204(a)91)(D)
• Non-abused children of USC or LPR can be included in parent’s petition as derivatives.
They do not need to show abuse and do not age out as long as self petition filed before
child turns 21
Violence Against Women Act
(VAWA)
Requirements for VAWA
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Abusive spouse is a USC or LPR, and
Relationship to abuser: marriage or intended marriage, and
Marriage entered into “in good faith”, and
Battery or extreme cruelty by USC or LPR during marriage, and
Good moral character, and
Past or present residence with USC/LPR spouse, and
Current residence in the US, or if living abroad, abuser must be: an employee
of US government, member of the armed services, or some of the abuse
occurred in the U.S.
Violence Against Women Act (VAWA)
Marital Relationship
• Abused spouse can self petition within two years of LPR or USC death
• If marriage ends in divorce can file self-petition within 2 years of divorce if connection
between divorce and abuse. 8 CFR 204(a)(1)(A)(vi). If divorce occurs after self-petition
filed, can continue with self-petition. If self-petitioner remarries AFTER approval, self
petition will not be revoked
• If the abusing spouse renounced or lost USC/LPR status the victim of abuse can still
self petition if the loss of USC/LPR status was related to domestic violence.
• Follow-up on VAWA problems with USCIS at
HotlineFollowUpI360.VSC@uscis.dhs.gov or 802-527-4888
Separation/Divorce During Pending I-751
• Individual who obtains conditional permanent resident status through marriage to a U.S. citizen
or lawful permanent resident and petitioning spouse must jointly file Form 1-751 to remove the
conditions on his or her residence. INA 216(c)( 1)(A) ; 8 C.F.R. 216.4(a)( 1)
• Joint filing requirement may be waived if:
o Removal from the United States would result in extreme hardship;
o The CPR entered the marriage in good faith, but the marriage was terminated (other than
through death); or
o CPR entered the marriage in good faith, but the petitioning spouse or parent battered the
CPR spouse or child. INA §216(c)(4); 8 CFR §216.5
• Waiver may be requested at time of filing or any time during pendency of the petition
o CIS officer issues RFE with response period of 87 days to produce evidence of eligibility
for the waiver
o Evidence may include credible reports of psychologist, police reports, divorce decree or
annulment
Separation/Divorce During Pending I-751
• No waiver of the joint filing requirement based solely on entering the marriage
in good faith, but legally separated from the petitioning spouse or currently in
divorce or annulment proceedings.
• Legal separation or initiation of divorce or annulment proceedings may suggest
that the CPR entered into the marriage for the sole purpose of procuring
permanent resident status.
• Indicators of separation:
o Married filing separate tax returns
o Separate addresses on W-2s
o Utility bills in name of only one spouse
o No joint bank or credit accounts
Affidavit of Support
Affidavit of Support
1.
2.
3.
4.
5.
I-864 Basics
Exemptions to Filing I-864
Financial Requirements
Filing Requirements
Sponsorship Requirements
I-864 Basics
WHAT DOES SPONSORSHIP MEAN?
• Law and regulations including key definitions under INA 213A and CFR
213a.1-a.5.
• Obligations of the I-864 INA 213A(a) & (b)
o Sponsor attests the following:
• will “provide support to maintain the sponsored alien at an annual income that is not
less than 125 percent of the Federal poverty income line,”
• will reimburse a government agency of benefits provided to immigrant,
• submit to jurisdiction of any court for the enforcement of the affidavit
• and notify USCIS of change of address within 30 days on Form I-865
I-864 Basics
How long is the sponsor obligated? INA 213A(a)(2)&(3)
• Sponsor required to provide support to the immigrant from the day they
become an LPR until one of the following occurrences:
• the immigrant becomes a U.S. Citizen,
• the immigrant earns 40 qualifying quarters,
• the immigrant’s death,
• the immigrant loses LPR status and departs from the US,
• the immigrant is ordered removed but readjusts,
• OR
• the sponsor dies.
I-864 Basics
How is the I-864 enforced? INA 213A(a)&(b)
•
I-864 requires that the sponsor maintain their support of him or her -including monetary or other types of support such as housing, food
or clothing- at an “annual income that is not less than 125 percent of the Federal poverty line” taking into account income of the
sponsored immigrant. INA 213A(a)(1)(A).
•
I-864 is legally enforceable by the sponsored immigrant or eligible government agency.
o
o
o
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The sponsored immigrant may sue the sponsor to enforce the Affidavit of Support.
o
•
Liu v. Mund, 686 F.3d 418 (7th Cir. 2012), court found the sponsor's obligation is paramount, and therefore sponsored person is
not required to seek employment as an effort to "mitigate" the sponsor's obligation to support his ex-wife.
Stump v. Stump, 2005 WL 2757329 (N.D. Ind. Oct. 25, 2005) - The obligation of the I-864 continues until termination and upheld
a sponsored immigrant's right to recover money from her sponsoring USC husband and that even though the couple had
separated the sponsor was still obligated, to support his spouse at 125% of the poverty guideline. But I-134 not enforceable.
Chesire v. Cheshire, 2006 WL 1208010. Citing Stump, that I-134 not enforceable, but I-864 is enforceable, and divorce does not
terminate the contractual obligations of the I-864 .
Davis v. Davis, 2004 WL 2924344. Court ordered that sponsored immigrant has standing to ask court to enforce I-864
against USC.
The government entity providing benefits to the immigrant may seek reimbursement from the sponsor – means tested programs, like,
SSI, Medicaid, TANF, SCHIP.
I-864 Basics
When is the Affidavit of Support is required?
•
•
•
•
Form I-864 Affidavit of Support required in order that immigrant is not found inadmissible under the public
charge ground. INA 212(a)(4)(A)-(D) (Public Charge) and INA 213A; 8 CFR 213a.2. (Requirements for
Affidavit of Support)
Need separate I-864 for intending immigrant and for his or her derivative beneficiaries immigrating through
the same petition. 8 CFR 213a.2(a)(1)(iii).
All immigrant visa applications and adjustment applications based upon an approved I-130 Petition must
contain Affidavit of Support. 8 CFR 213a.2(a)(2)(i)(A)&(B).
Unless EXEMPT as a “self-petitioner” OR “self-sponsoring beneficiary.” 8 CFR 213a.2(a)(2)(ii)(A)-(E).
[Discussed below]
OR
• Certain immigrant visa or adjustment application for the I-140 based visa applicant - if the applicant’s
“relative” filed the I-140 or if a “relative” of the applicant has a 5% or more ownership interest in the I-140
business entity. INA 213A(f)(4)(D). 8 CFR 213a.2(a)(2)(i)(C).
o Known as “Five Percent rule.”
o The term “relative” defined in 8 CFR 213a.1 relates to person who could have filed an I-130 petition.
But A/S not required if the relative is a brother or sister of the intending immigrant and the relative
brother or sister is NOT a USC. 8 CFR 213a.2(a)(2)(i)(D).
Who is Exempt From Filing I-864?
“Self-petitioner” OR “Self-sponsoring beneficiary”
• 8 CFR 213a.2(a)(1)(i)(B). For each type of case exempted they must submit
exemption request form, I-864W.
• 8 CFR 213a.2(a)(2)(ii) lists those intending immigrants exempted from having a
sponsor file an I-864.
o Intending immigrant has earned or is credited with 40 quarters of income demonstrated
through social security earnings statements through SSA. 8 CFR 213a.2(a)(2)(ii)(C).
o Intending immigrant is an adopted child who will become a U.S. citizen upon entry into the
US as an adopted child of USC parents. 8 CFR 213a.2(ii)(E).
o Self–petitioning battered spouse or child with approved I-360. 8 CFR 213a.2(a)(2)(ii)(A).
o Self-petitioning widower with approved I-360. 8 CFR 213a.2(a)(2)(ii)(A). Note different
requirements for a Substitute sponsor based upon death of petitioning sponsor (below).
CERTAIN INTENDING IMMIGRANTS DO NOT NEED TO FILE
I-864 AT ALL AND DO NOT NEED “EXEMPTION”
• K visa applicant – must instead wait to submit the I-864 when they adjust status
in the U.S.
• V visa applicant – must instead wait to submit the I-864 when they adjust status
in the U.S.
• Derivative beneficiaries of employment based petitions.
• Plus others who adjust without the use of I-130 include: asylees, refugees,
special immigrant juveniles, diversity visa applicants, NACARA, Cuban
Adjustment, and most employment based LPR applicants.
WHAT ARE THE FINANCIAL REQUIREMENTS ?
INA 213A(f)(6)
Sources of Income of Sponsor to be used for Affidavit of Support
• Sufficient household income – 125% of federal poverty line
o Exception of 100% for active duty members of the armed forces who are petitioning for spouse or child
• Current income from a variety of sources, such as pensions, interest income,
dividends, alimony, or child support.
• Financial support does not require actual employment, can include other
assets.
• Sponsor does not have to be employed. Can be self-employed, retired, or
unemployed.
WHAT ARE THE FINANCIAL REQUIREMENTS ?
INA 213A(f)(6)
Other sources of income in addition to the Sponsor’s
• Other income – consider household income plus assets, and or/ sponsored
immigrant income, and/or joint sponsor.
• Income from relatives and dependents living in the household or listed as
dependents and sign a Form I-864A.
• Income from intending immigrant if they will be continuing with that income
after they are LPR and if they are living with the sponsor (but if spouse, then
does not need to prove living at time of application)
• Use of Assets and the assets of any household member who has signed a
Form I-864A, or the assets of the intending immigrant.
• Joint Sponsor if they can show their income and or assets equal 125 percent.
WHAT ARE THE FINANCIAL REQUIREMENTS ?
INA 213A(f)(6)
Key Points on Other Sources of Income
• Family Unit size – 8 CFR 213a.2(c)(2)(i)(C)(1) – Household income includes the sponsor, the
sponsor’s household members (both family and non-family dependents) and other dependents and
aliens who they have sponsored even if they are not part of that household, plus the intending
immigrant and all accompanying derivative family members.
• May include “relatives” residing with sponsor to compute Household income – 8 CFR
213a.2(c)(2)(i)(C)(1) – spouse, child, adult son/daughter, parent or sibling. Household relatives must
be at least 18 and have a social security number, but do not have to be USC, LPR, nor residing in
the US with lawful status.
• May include income from the following sources if they are residing with the sponsor: sponsor,
spouse, spouse’s unmarried children under 21, intending immigrant and all accompanying derivative
family members, dependents claimed by the sponsor on the most recent tax returns, and can
include an immigrant who obtained LPR status through that sponsor.
• If income from household relative is considered, the household relative must submit Form I-864A,
with
o social security number, and
o tax returns for same year as sponsor, (if the intending immigrant is not submitting I-864A then does not need to
provide tax returns but income is included on the sponsors form)
o proof of relationship, and proof of residence with the sponsor, unless it is the income of the intending immigrant.8
CFR 213a.2(c)(2)(i)(C)(5)
WHAT ARE THE FINANCIAL REQUIREMENTS ?
INA 213A(f)(6)
Requirements for counting the intending immigrant’s income
o Residing with the sponsor OR be the sponsor’s spouse OR claimed dependent
o Income derived from lawful employment or source that will continue after they become
LPR.
o Unlawful employment in the US cannot be considered.
o Income overseas cannot be considered. If intending immigrant outside the US then since
they will be changing employment once they become an LPR then their income source
can not be considered.
o Offers of employment cannot be considered. Income must be derived from “lawful
employment in the US or from some other lawful source that will continue to be available
to the intending immigrant after he or she acquires permanent resident status.” 8 CFR
213a.1, USCIS Memo Aytes Nov. 23, 2006.
• Intending immigrant does not need to submit I-864A – even if his/her income will be considered
- unless he or she has a spouse or derivative beneficiary that is immigrating with them. 8 CFR
213a.2(c)(2)(i)(C)(3)
FILING REQUIREMENTS
Timing of I-864 Filing and Adjudication
o I-864 filed when the I-485 Adjustment application is filed with USCIS or upon NVC request
when consular processing. 8 CFR 213a.2(a)(1)(ii).
o Documentation assessed for sufficiency in the year when the application is filed or when
permanent residency or immigrant visa application is adjudicated. 8 CFR 213a.2(a)(1)(v).
o But if issue arises at the interview then provide current documentation, from most recent
tax year and not for time that the I-864 was filed. 8 CFR 213a.2(a)(1)(v)(B); USCIS
Memorandum, M. Aytes, “USCIS Policy Regarding USCIS Form I-864, Affidavit of
Support.” Nov. 23, 2005.
FILING REQUIREMENTS
Documentation from sponsor of financial ability to support
•
•
•
•
•
•
8 CFR 213a.2(c)(1)(i) / Proof of income.
Tax return from most recent tax year.
IRS transcripts optional but recommended.
Or Tax returns from most recent 3 years.
Must include W-2, Form 1099, and all other attachments and schedules submitted with IRS return.
Employment letter and paystub – only in borderline cases and where income level changes from
year to year.
• Allows income from retirement benefits, unemployment compensation, workers’ compensation. 71
Fed Register 35731, 35738 (June 21, 2006)
• If tax exempt, 8 CFR 213a.2(c)(1)(i)(B) attach
• (1) written explanation (from credible source) (“preponderance of the evidence” standard not
required to file taxes)
AND
• (2) proof of annual income from other sources.
• NOTE: Sponsor must indicate on Form I-864 the Sponsor’s last 3 years of income.
FILING REQUIREMENTS
Significant Assets as source of financial means/ 8 CFR 213a.2(c)(1)(5)(iii)(B)(1)-(3)
• Submit proof of assets – must be 3 times the shortfall between sponsor’s income and
the required amount Or 5 times the shortfall if using assets of household member filing
I-864A. Or for adoption, value of assets must exceed shortfall.
• Documentation / evidence of “significant assets” needs special attention. 9 FAM 40.41
Procedural Notes 2.5(a), AFM Ch.20.5(d)(1). Examples- Bank statements should be
for 12 months. Real Estate requires extensive documents, such as certified appraisal,
or to count a vehicle the sponsor must own more than one car and they must be in
working order – use blue book value.
• Assets of intending immigrants are listed on I-864 not I-864A unless the intending
immigrant has spouse or child immigrating with him/her.
WHO CAN QUALIFY AS THE SPONSOR?
Sponsored Defined INA 213A(f); 8 CFR213.a.2(c)(1)(i)
•
•
•
•
•
Petitioning for the intending immigrant
At least 18 years of age
US Citizen, a National, or LPR
Domiciled within the U.S. or in any U.S. territory or possession
Demonstrates has the “means to maintain an annual income equal to at least 125
percent of the Federal Poverty line” INA 213A(f)(1)(E)
• Exception to 125 percent rule
o Joint Sponsor
o Active duty armed service member of spouse or child who can demonstrate 100
percent INA 213A(f)(3)
WHO CAN QUALIFY AS THE SPONSOR?
Joint Sponsorship / INA 213A(f)(5), 8 CFR 213a.2(c)(2)(iii)(C), AFM
20.5(d)(7)(A)
o May cure sponsor’s inability to show sufficient income or assets but does
not cure the other requirements, such as domicile.
o Sponsor must still file an I-864. Does not relieve Sponsor of obligations or
liability.
o May have up to 2 joint sponsors but each are jointly and severally liable.
o Joint sponsor must execute a separate I-864 and satisfy the income
requirement separately.
o Same requirements as principal sponsor (18 or over, LPR or USC, and
financially able)
WHO CAN QUALIFY AS THE SPONSOR?
Rule for Substitute Sponsor
• The self-petitioning widow exemption when an I-360 is filed is different from the
situation where a substitute sponsor is used where the I-130 was filed by the sponsor
died.
• A substitute sponsor can file an I-864 when an I-130(spouse) or I-129f (fiancé) was
filed and the sponsor dies after the petition was filed and approved /or after the I-130
was filed (2009 law expanded substitute sponsor provision) and is still pending.
• “Substitute sponsor” submits I-864 with proof of relationship (as surviving relative) and
check Box 1.f in Part 1 of the I-864, (substitute sponsor) and where necessary provide
evidence of humanitarian reasons. INA 204(l); INA 213A(f)(5)(B)(i) & (ii); 8 CFR
213a.2(c)(2)(iii)(D).
WHO CAN QUALIFY AS THE SPONSOR?
Domicile Requirements 8 CFR213.a.2(c)(1)(ii).
• US citizens or LPRs who are living abroad, even temporarily, may not be able to sponsor a family member,
unless they qualify under an exception.
• The key definitions for this requirement are “domicile” and “Residence.”
• “Domicile” is defined as “the place where a sponsor has his or her principal residence, as defined in INA
101(a)(33) with the intention to maintain that residence for the foreseeable future.” INA 213A(f)(1)(C), 8
CFR 213a.1.
• “Residence” is defined as the person’s “place of general abode” or the “principal, actual dwelling place in
fact, without regard to intent.” INA 101(a)33)
• If the USC or the LPR does not have employment abroad that does not meet one of the exceptions, they
will have to return to the US and establish their domiciled in the US.
OR
• USC or LPR can submit the I-864 if they can convince USCIS or the Consular officer that they will
reestablish domicile in the US on or before the date the immigrant obtains LPR status. 8 CFR
213a.2(c)(1)(ii)(A).
• USCs who are accompanying the immigrant to the port of entry will be deemed to have established
domicile in the US. 8 CFR 213a.2(c)(1)(ii)(B).
• LPRs can try to accompany the immigrant like the USC but may be denied admission. 8 CFR
213a.2(c)(1)(ii)(B).
WHO CAN QUALIFY AS THE SPONSOR?
How to Prove Domiciled in the US
• Preponderance of the evidence standard applies if sponsor is residing abroad. 8 CFR 213a.2(c)(1)(ii)(A).
• If the sponsor is residing abroad they may still be found to be domiciled in the US if they are an LPR and fall under INA
316(b), INA 317, or a USC and fall under INA 319. 8 CFR 213a.2(c)(1)(ii)(A).
o Sponsors living outside the US and whose employment is directly related to their absence from the US and who
still have a residence in the US which they use as their principal, actual dwelling place can still sponsor an
immigrant.
LPRs - LPRs living abroad should file a N460 Preservation of residence under INA 316(b) or 317
• Under 316(b) - To preserve residence the LPR must have (1) have been physically present for one year as an LPR
before applying (2) be employed overseas by US government, international agency or by an employer involved in
research or foreign trade (3) absence is on behalf of employer
• Under INA 317 – To preserve residence the LPR must have (1) have been physically present for one year as an LPR
before applying (2) Employed by a religious organization (3) absence is for the purpose of performing religious
activities.
USCs – US Citizens living abroad. INA 319(b)(1)
• Same as the LPR requirements for employment overseas except they do not need to meet the physical presence
requirement.
• Must be employed by US government, international agency or by an employer involved in research or foreign trade or
religious organization.
Matter of Arrabally and Yerrabelly
• Overview of the decision
• Effect on spouses of US citizens, DACA applicants, TPS
Matter of Arrabally and Yerabelly
• Basic Holding: AOS applicants who entered lawfully but afterwards accrued ULP may travel on AP
without triggering 3yr/10yr bar;
• Facts – EB3 case pending for many years; aliens didn’t extend H1B; using EAD/AP; left and
returned prior to AOS; denied;
• Field Office & Imm Court denied them; BIA here distinguishes by agreeing trip on AP is not a
“departure” as described in IIRAIRA;
• BIA cites key elements:
1) was approved in advance by the US government on the basis of an application
demonstrating the alien’s qualification for and worthiness of the benefit sought,
2) presupposed the alien’s authorized return thereafter, and
3) was requested solely for the purpose of preserving the alien’s eligibility for adjustment of
status.
Matter of Arrabally and Yerabelly, 25 I&N Dec. 771, at 778 (BIA 2012) (emphasis added).
Matter of Arrabally and Yerabelly
212(a)(9)(B)(i) In general.--Any alien (other than an alien lawfully admitted for permanent residence) who-― 212(a)(9)(B)(i)(I) was unlawfully present in the United States for a period of more than 180 days but less than 1
year, voluntarily departed the United States (whether or not pursuant to section 244(e) [sic]
― Sic. Probably should be sec. 240B .) prior to the commencement of proceedings under section 235(b)(1) or
section 240, and again seeks admission within 3 years of the date of such alien's departure or removal, or
― 212(a)(9)(B)(i)(II) has been unlawfully present in the United States for one year or more, and who again seeks
admission within 10 years of the date of such alien's departure or removal from the United States,
is inadmissible.
212(a)(9)(C) Aliens unlawfully present after previous immigration violations.-212(a)(9)(C)(i) In general.-- Any alien who-― 212(a)(9)(C)(i)(I) has been unlawfully present in the United States for an aggregate period of more than 1 year,
or
― 212(a)(9)(C)(i)(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law,
― and who enters or attempts to reenter the United States without being admitted is inadmissible.
Matter of Arrabally and Yerabelly
Who Benefits?
• Marriage AOS applicants who have fallen OOS since entry and need to travel outside
US;
• Employment AOS applicants whose category retrogressed after they filed AOS, and
employer doesn’t want to pay to keep extending H1B;
• EB-3 “skilled or other workers” AOS applicants who aren’t eligible for H1B;
• 245(i) applicants who need to travel;
• TPS applicants who obtain AP and then AOS?
• DACA applicants who obtain AP and then AOS?
Matter of Arrabally and Yerabelly
Who does not benefit?
• Unclear effect on those who ewi’d—TPS/DACA
• Applicants subject to 3yr/10yr bar
• Applicants subject to permanent bar
• Applicants with other issues in addition to ULP
Matter of Arrabally and Yerabelly
• AAO Revised Decision Arrabally/Yerrabelly TPS Case
o EWI TPS applicants subject to 212(a)(9)(B) can AOS
after entry on AP
o No I-601 waiver required
o Decision applied Matter of Arrabally and Yerrabelly
Matter of Arrabally and Yerabelly
• What to do for Clients whose cases have been denied for ULP after travel of
AP?
o MTR
o Appeal to AAO
o Retroactive Application?
Matter of Arrabally and Yerabelly
Helpful Citations
• Matter of Arrabally and Yerabelly, 25 I&N Dec. 771, (BIA 2012). AILA Doc. No.
12041840.
• AAO Revised Decision in Matter of Arrabally/Yerrabelly TPS Case, AILA Doc. No.
12102242.
• Sample Motion to AAO, courtesy of Steve Thal. AILA Doc. No. 12102255.
• INA § 212(a)(9)(B)(i)
• INA § 212(a)(9)(C)(i)
AILA Post Election Conference Call—Breaking News!
•
Obama’s re-elected; House is now Republican majority; Senate slight Democratic majority. This makes CIR unlikely,
but may be possible if Republicans see that President won in part on immigration platform.
•
Immigration is a high priority for Americans and for Obama. Sixty-five percent of Americans want to see the system
improved and Obama mentioned immigration as one of his top priorities during his acceptance speech, and also twice
in the past year in speeches.
•
Here is the update on legislative and administrative action for a second Obama term.
1. Deferred Action for Childhood Arrivals (DACA). This program will almost certainly continue. With
Obama’s re-election it’s likely the program will remain and that more immigrants will be likely to sign up for it. AILA desires to
see the Affordable Care Act extended to DACA recipients.
2. State-side waiver program. It was announced in the spring that there would be a waiver program that
would allow persons who needed a waiver to adjust status to apply for that waiver while in the United States rather than
return abroad to make application, thus minimizing time outside of the United States. With Obama’s re-election this program
will be implemented and may even be more favorable than initially expected.
3. DREAM Act. It is uncertain whether a federal DREAM Act will be passed. Such an act would grant lawful
permanent residence to over one million persons in the United States and would be considered a major reform. Locally,
Maryland passed its state version of the DREAM Act by 58%, which allows out of status students to pay in state tuition rates.