Q.  My friend invested $100,000 in a business in the US and got his papers. How is that possible? I though the minimum was $1 million investment?

There are several possibilities for how your friend was able to obtain immigration benefits through investment. He might have opened a company as a branch of another company he owned in his home country, or he might be a citizen of any country that has an investment treaty with the United States, such as Canada, the United Kingdom, Trinidad & Tobago, Pakistan and many others (but not India). For nationals of those countries, a relatively small investment is possible to obtain an investor visa. The investment must be active and the investor must show that the business will employ US citizens or permanent residents.  Our office has had success with investor visas where the investment amount is even under $100,000, but it depends on the unique facts surrounding each investment. This visa even allows one to bring in specialists from the investors home country to work in the US company. If you are interested in getting an investor visa, the first step is to develop a business plan. With this plan, consult an immigration attorney to determine if the investment qualifies.

Q. I received my permanent resident card through marriage to US citizen. My green card was issued for two years. It will expire in six months. I was told that I need my husband’s signature to extend my card, but things have gone badly in our marriage. We are having a lot of problems, and I am worried that he will not agree to sign to renew my card. What shall I do?

Your are considered a conditional resident. To extend your card, you need to file a petition to remove the condition on your card. Generally, the requirement if that both you and your husband file it jointly with the last three month window of your card’s validity. You must enclose proof that you and your husband have a valid marriage and are still living together. If your husband refuses to file a joint petition, you have two options. If your husband has abused you physically or has subjected you to extreme mental cruelty, you may file the request to extend your residence without your husband’s signature, as long as you have proof of the abuse through either a police report or a psychological evaluation.  In this case, you must still be married when filing. If there was no abuse, you may file without your husband’s signature only if there has been a divorce, and you must provide evidence that you entered into the marriage in good faith, and not to evade immigration laws, but that the marriage deteriorated due to circumstances beyond your control.

Q.  I am a US citizen. My son is 20 years old. He is visiting the US on vacation. I want to apply for his green card. Does he first have to go  back home to his country?

Not necessarily. Since your son is under 21 and you are a US citizen, he is entitled to an immediate preference visa. That means he can adjust his status from visitor to permanent resident inside the United States at the same time as your petition for him is being considered. That way, he can stay here while the process is going on. If he leaves now, he will have to consular process his visa – receive it at the US consulate in his home country. That may take 6-12 months. In any case, you better hurry. If you file the paperwork after he turns 21, he will have to wait for many more years before he can get his green card.

Q.  After I get my US citizenship, how long can I travel outside the United States?

A US citizen can remain outside the US for as long as he/she likes, and may always come back. You may travel for a day, a month, a year or a decade. That is the benefit of US citizenship. If your US passport expires while you are outside the US, you may renew the passport at a US embassy in whatever country you are in.

Q. I have lived in Canada for the last 18 years. About 8 years ago, while I was still a teenager, my father obtained green cards for the whole family. I still have the card, although none of us ever moved to the US or used the card. Is the card still valid and can I move to the US with it now?

No. If you live outside the US for more than one year, you lose your permanent resident status. Since you have not lived in the US for much longer than that, the card is not valid. If you try to use it to enter the US, you will be denied entry. The officer might also take your card and might ask you to sign an acknowledgement that your have “abandoned” your permanent resident status.

Q. I came to the United States more than 20 years ago. I applied for LULAC and was denied. My son, who was born in the US, is now turning 21.  Can he file for my green card or will I have problems?

Generally, yes. Your son’s citizenship will excuse your overstay and any unauthorized employment, no matter how long. In most cases, you will need to prove that you entered legally (with a visa). If you entered the US by illegally crossing a border, you will not be eligible to apply for your green card. There are some exceptions to that. If you used false documents, you may be able to get a waiver (an exception) to let you get your green card. If you have been arrested in the past or have traveled for too long after your initial entry, you may also have problems getting your green card through your son.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 20 years. He is a director of the Citizenship Clinic. He is also an avid cricket fan.

Immigration Q and A

Q. I would like to get married to my fiancée in India. I am a US citizen. What is the best way to bring her here?
A. You have several options. First, you can apply for a fiancé visa (K1) for your intended, if you have seen her within the last two years. Once your fiancée receives the visa, she may enter the US for 90 days and must get married to you within those 90 days. After that she may file for adjustment of status here in the US to become a permanent resident. Second, you may travel to India, hold the wedding there, and one you are married, file a family petition to bring your wife to the US. The petition is filed in the United States, but the approval is sent to the US consulate nearest her city of residence, where she will have to have an interview to pick up her immigrant visa. Lastly, if your future wife is in possession of a visitor’s visa, or another nonimmigrant visa (but not a crewmember visa), she may enter the US and have the marriage take place in the US. Afterwards, you would file a family petition for her and she would simultaneously file an application to adjust status in the United States, all without leaving the US. She would receive an interim work authorization, and you will both be scheduled for an interview to determine the veracity of your marriage and her eligibility to become a permanent resident.
Q. I received my permanent residence through marriage to US citizen. My green card was issued for two years. It will expire in four months. I was told that I need my husband’s consent to extend my card, but things have not gone well in our marriage. We are having problems, and I am worried that he will not agree to help renew my card. What shall I do?
A. You are considered a conditional permanent resident. To extend your card, you need to file a petition to remove the condition on your card. Generally, the requirement if that both you and your husband file it jointly within the last three month window of your card’s validity. You must enclose proof that you and your husband have a valid marriage and are still living together. If your husband refuses to file a joint petition, you have two options. If your husband has abused you physically or has subjected you to extreme mental cruelty, you may file the request to extend your residence without your husband’s signature, as long as you have proof of the abuse through either a police report or a psychological evaluation. In this case, you must still be married when filing. If there was no abuse, you may file without your husband’s signature only if there has been a divorce, and you must provide evidence that you entered into the marriage in good faith, and not to evade immigration laws, but that the marriage deteriorated due to circumstances beyond your control.
Q. My friend has a factory in outside the US. He wants to open a business in the United States to import and distribute the products here. Does he need to get a special visa to open the business in the US and work here?
A. Your friend may be able to get an L¬1 visa. The L¬1 allows for managers and executives to transfer from a foreign company to a US branch, subsidiary, affiliate or parent of the foreign company. Your friend must show that he has worked for the company in India in managerial or executive capacity for at least one year in the last three years. He must also show that he is coming to the US to work in a managerial or executive capacity for the US company and that the US company has established an office in the US. Your friend may also qualify for the investor visa. The requirements for both visas are very specific, so your friend should consult a qualified immigration attorney as early in the planning stage as possible.
Q. My father has lived in the United States for 20 years. He is a permanent resident. He is 53 years old. He would like to apply for citizenship, but we do not think that he will pass the English test, even though he has taken classes. Can he get his citizenship?
A. First, in order for your father to apply for citizenship, you need to determine that your father has been a permanent resident for at least five years. If he has been a permanent resident for the entire 20 years that he has lived here, he can take the civics test in her native language (since he is older than 50). If he has been a permanent resident for more that 15 years, but less than 20, he will have to wait until he turns 55 to be able to take the civics test in her native language. If he has been a permanent resident for less than 15 years, the only way he could avoid the English and Civics test is by demonstrating that he has a disability or mental impairment that prevents him from learning English. He would need to have her doctor fill out and sign Form N¬ 648 requesting an exception to the English testing requirement. Not all disabilities or medical conditions are considered an impairment to learning English. The doctor must evaluate the effect of the disability or medical impairment on the applicant’s ability to learn, and must explain exactly why the medical condition prevents the applicant from learning English.
Q. My employer recently filed an I¬140 for me. I also applied for adjustment of status. Both applications are still pending. My fiancé is here on a student visa. We are planning a wedding date. Is it better to wait until I get my green card to get married?
A. Actually, your fiancé will become a permanent resident much faster if you marry him before your green card is approved. Once you are married, she can file his application to adjust status as your dependent and it will be adjudicated concurrently with yours (or maybe several months later, but he will still receive employment authorization while his case is pending). If you wait to become a permanent resident, you will have to file an I¬130 family petition for your (future) husband. Since there is a quota on spouses of permanent residents, he will have to wait years until he can become a permanent resident, with no employment authorization while he waits. He will not even have the right to be in the U.S. based on the pendency of your petition, until it is approved and a visa number becomes available.
Your future husband may also apply for temporary employment authorization and a temporary travel document. After you have sent in all the paperwork and the filing fees, USCIS will send you receipt notices for all the forms. Then your husband will receive an appointment notice for her biometrics. Than means fingerprints and a photo. You will then get an interview appointment with USCIS. You will both need to go to the interview and bring evidence that your and your husband really live together and that the marriage was not just for the green card. If you pass the interview and your husband does not have any bars to adjustment, such as a criminal conviction, he will be granted permanent residence and will receive his green card in the mail.
The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522¬ 4115.
Edward Borethis an immigration attorney who has practiced law for 20 years. He is a director of the Citizenship Clinic. He is also an avid cricket fan.

Q. I would like to get married to my fiancée in India. I am a US citizen. What is the best way to bring her here?

A. You have several options. First, you can apply for a fiancé visa (K1) for your intended, if you have seen her within the last two years. Once your fiancée receives the visa, she may enter the US for 90 days and must get married to you within those 90 days. After that she may file for adjustment of status here in the US to become a permanent resident. Second, you may travel to India, hold the wedding there, and one you are married, file a family petition to bring your wife to the US. The petition is filed in the United States, but the approval is sent to the US consulate nearest her city of residence, where she will have to have an interview to pick up her immigrant visa. Lastly, if your future wife is in possession of a visitor’s visa, or another nonimmigrant visa (but not a crewmember visa), she may enter the US and have the marriage take place in the US. Afterwards, you would file a family petition for her and she would simultaneously file an application to adjust status in the United States, all without leaving the US. She would receive an interim work authorization, and you will both be scheduled for an interview to determine the veracity of your marriage and her eligibility to become a permanent resident.

Q. I received my permanent residence through marriage to US citizen. My green card was issued for two years. It will expire in four months. I was told that I need my husband’s consent to extend my card, but things have not gone well in our marriage. We are having problems, and I am worried that he will not agree to help renew my card. What shall I do?

A. You are considered a conditional permanent resident. To extend your card, you need to file a petition to remove the condition on your card. Generally, the requirement if that both you and your husband file it jointly within the last three month window of your card’s validity. You must enclose proof that you and your husband have a valid marriage and are still living together. If your husband refuses to file a joint petition, you have two options. If your husband has abused you physically or has subjected you to extreme mental cruelty, you may file the request to extend your residence without your husband’s signature, as long as you have proof of the abuse through either a police report or a psychological evaluation. In this case, you must still be married when filing. If there was no abuse, you may file without your husband’s signature only if there has been a divorce, and you must provide evidence that you entered into the marriage in good faith, and not to evade immigration laws, but that the marriage deteriorated due to circumstances beyond your control.

Q. My friend has a factory in outside the US. He wants to open a business in the United States to import and distribute the products here. Does he need to get a special visa to open the business in the US and work here?

A. Your friend may be able to get an L­1 visa. The L­1 allows for managers and executives to transfer from a foreign company to a US branch, subsidiary, affiliate or parent of the foreign company. Your friend must show that he has worked for the company in India in managerial or executive capacity for at least one year in the last three years. He must also show that he is coming to the US to work in a managerial or executive capacity for the US company and that the US company has established an office in the US. Your friend may also qualify for the investor visa. The requirements for both visas are very specific, so your friend should consult a qualified immigration attorney as early in the planning stage as possible.

Q. My father has lived in the United States for 20 years. He is a permanent resident. He is 53 years old. He would like to apply for citizenship, but we do not think that he will pass the English test, even though he has taken classes. Can he get his citizenship?

A. First, in order for your father to apply for citizenship, you need to determine that your father has been a permanent resident for at least five years. If he has been a permanent resident for the entire 20 years that he has lived here, he can take the civics test in her native language (since he is older than 50). If he has been a permanent resident for more that 15 years, but less than 20, he will have to wait until he turns 55 to be able to take the civics test in her native language. If he has been a permanent resident for less than 15 years, the only way he could avoid the English and Civics test is by demonstrating that he has a disability or mental impairment that prevents him from learning English. He would need to have her doctor fill out and sign Form N­ 648 requesting an exception to the English testing requirement. Not all disabilities or medical conditions are considered an impairment to learning English. The doctor must evaluate the effect of the disability or medical impairment on the applicant’s ability to learn, and must explain exactly why the medical condition prevents the applicant from learning English.

Q. My employer recently filed an I­140 for me. I also applied for adjustment of status. Both applications are still pending. My fiancé is here on a student visa. We are planning a wedding date. Is it better to wait until I get my green card to get married?

A. Actually, your fiancé will become a permanent resident much faster if you marry him before your green card is approved. Once you are married, she can file his application to adjust status as your dependent and it will be adjudicated concurrently with yours (or maybe several months later, but he will still receive employment authorization while his case is pending). If you wait to become a permanent resident, you will have to file an I­130 family petition for your (future) husband. Since there is a quota on spouses of permanent residents, he will have to wait years until he can become a permanent resident, with no employment authorization while he waits. He will not even have the right to be in the U.S. based on the pendency of your petition, until it is approved and a visa number becomes available.

Your future husband may also apply for temporary employment authorization and a temporary travel document. After you have sent in all the paperwork and the filing fees, USCIS will send you receipt notices for all the forms. Then your husband will receive an appointment notice for her biometrics. Than means fingerprints and a photo. You will then get an interview appointment with USCIS. You will both need to go to the interview and bring evidence that your and your husband really live together and that the marriage was not just for the green card. If you pass the interview and your husband does not have any bars to adjustment, such as a criminal conviction, he will be granted permanent residence and will receive his green card in the mail.

Edward Boreth

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522­ 4115.

Edward Boreth is an immigration attorney who has practiced law for 20 years. He is a director of the Citizenship Clinic. He is also an avid cricket fan.

Q. I called the USCIS about my case. They told me that they would send me a decision in 30 days. It has now been 3 months and I have received nothing. When I called again, they now told me I have to wait 180 days! Why did they give me different information from the first time I called? Can I rely on USCIS to provide me necessary information on the phone?

A. Unfortunately, the USCIS customer service line is only useful in a very limited way.The person who answers the phone does not have access to your file. He or she only sees a computer screen with limited information. It often takes USCIS 30 days or more to update that computer. For example, if you send in a response to a request for evidence, USCIS may physically receive your envelope but the customer service center may not know that for some time. The USCIS customer service center cannot tell you when something will happen on your case. The office has a list of general projected completion dates for several types of cases. When you ask “How long will it take to get an answer on my case?” the representative on the line will look at a chart for similar cases to yours and tell you the approximate completion time. This is not a promise by USCIS to have your individual case completed. The representative on the line cannot even the see the documents in your file, nor are they trained in knowing the rules that apply to your case. They certainly cannot advise you what steps you should take to successfully apply for an immigration benefit as it applies in your particular situation. The information they can give you is limited to what you can learn on the USCIS website. Do not rely on what the representative tells you on the phone. That representative does not work for you and does not have your interests in mind. If you have questions about your case, speak to an experienced immigration attorney. Keep a copy of everything you send to USCIS and everything you receive from them. When you show these documents to an immigration attorney, he or she will be able to advise you on what steps you have to take next.

Q. I have been in United States for two years. I came with a tourist visa, but it has now expired. I have found a business that is willing to offer me a job and sponsor me. Can I het my green card this way?

A. No. Getting a green card through employment is a 2 part process. The employer first files a petition with USCIS (and if needed, the employer must first have a labor certification approved). The employer’s petition may be approved, whether you are in the US legally or not. In fact, you do not have to be in the US to have the employer’s petition approved. However, the next step is to apply for adjustment of status – that is your personal application for the green card (based on the employer’s petition). Your overstay will prevent that from being approved. (There are a few small exceptions – check with your immigration attorney). ). Basically, if you do not have legal status in the US when you apply for adjustment of status based on employment, you will not qualify. If you have overstayed by 6 months, and leave the US to process you green card in the US Consulate in your country, you will not be allowed back in for 3 years. If you overstay by 1 year, you are barred from reentry for 10 years.

Q. I have a 10 year visa to the United States. Can I stay here for 10 years?

No. There is a big difference between the visa stamped in your passport and your permitted duration of stay. Your visa is probably a visitor’s visa (B1/B2). As a visitor, you are allowed to stay for no more than 6 months at a time. When you enter the US with your visa, you will be given a Form I-94. This used to be a little card, but is now done electronically. Your form I-94 will state how long you can stay on this visit. You may print out your form I-94 from the CBP website (www.cpb.gov). Your passport will also be stamped and the stamp will say how long you can stay. Sometimes you may be able to extend that period of stay by filing an application with USCIS. The visa in your passport, however, only governs your entry to the US and the category in which you may enter.

Q. My fiancée is here on a student visa. I am a US citizen. We plan to marry on Valentines’ day. What do we do next?

A. After you get married, you will be ready to file for your wife’s green card. Family filings are a 2 part process. You will need to file Form I-130 – that is your petition for your wife’s immigrant visa. Your wife will need to file form I-485 – her application to adjust status (From student to permanent resident). These forms are filed at the same time. Your wife also has the option to return to her home country and have your petition processed at the US consulate in her country, as log as she has not violated her status in the US. The forms are sent to USCIS by mail. You will need to include a copy of your marriage certificate, proof of your citizenship, any past divorces and a copy of your wife’s birth certificate. You will also need to document how your wife entered the US. You are also required to file an Affidavit of Support and include proof of your income. This form guarantees to the government that your wife will not seek public assistance. You have to show that your income is more that 125% of the federal poverty level. If you do not make that much money, you will need a co-sponsor to also file an Affidavit of Support for your wife, or you may use your assets, such as bank accounts or a home. The co-sponsor must be a US Citizen or permanent resident. Your wife will also need to send in a medical exam from a licensed immigration doctor.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.

Q. I came to the US with my husband and children almost 20 years ago on a visitor visa. My visa has long ago expired and I have no other immigration status. My daughter is now married and recently got her green card. What can I do about my immigration status? Does the nee announcement by the president help me in any way?

A. Yes. Under the new Deferred Action for Parents (DAP), you will be able to apply for a three year work permit and you will be safe from deportation for that time, as long as you have lived her more that 5 years, have no major criminal history and have children who are permanent residents or citizens. This program is scheduled to come out in late spring or early summer. Additionally, once your daughter becomes a US citizen, she can apply for your green card. She may filed for citizenship after three years as a permanent resident if she obtained it through marriage and is still living together with her husband. Otherwise, she has to wait for five years to apply.

Q. I have been in United States over ten years. I had a case with immigration court and the judge ordered me deported, but I never left. I also received a ticket for driving with an expired driver’s license, because I was not able to renew my license due to my immigration status. I have two young children, ages 5 and 7, who were born here. Will I be able to petition for a status under the new Obama rule?

A. The new announcement by the President is Deferred Action for Parents (DAP). It does not give you a legal status, but doe allow you reprieve from deportation and a work permit for three years. It seems that you would qualify, because the order of deportation is not an impediment, as the policy was designed to prevent deportation of people with families. The court case is not what immigration terms a serious or grave case, and should also not prevent you for from applying for temporary work authorization.

Q. I live in Canada, but I have been offered a job in the United States. I am a Canadian citizen. What is the process by which I can work legally in the U.S.?

In addition to the H-1B and L-1 visas, Canadian citizens may obtain TN visas. If your profession is listed on the NAFTA (North American Free Trade Agreement) list, and you have the required educational credentials for your profession, your U.S. employer may ask the Department of Homeland Security to admit you in TN status to be employed by the US employed. The process does not require a petition to be filed with USCIS, and is relatively fast. The professions list features professions such as accountant, architect, computer systems analyst, engineer, management consultant, pharmacist, and many others.

I am a citizen of Bangladesh. I lived in Canada for many years, but never became a citizen of Canada. I came to the U.S. 6 years ago. I have married a US citizen and would now like to apply for my green card. Can I do it here?

The answer depends on how exactly you entered the United States. If you are not a citizen of Canada, you would have generally needed a visa to enter the U.S. If you entered with a visa, you would have a stamp in your passport showing entry and a form I-94. If you did not get your passport stamped, it may still be possible for you to adjust status in the U.S., but the situation gets complicated and the result may depend on the smallest of facts. Talk to an immigration attorney about the exact circumstance of your entry to the U.S.

Q. I came to the U.S. on a visa 9 years ago. Now I am married to a US citizen, and we are ready to apply for my green card. However, I was arrested a few years ago. I was a very small case and the judge dismissed it. My wife does not know about it. Do I have to tell immigration about it?

A. Absolutely. No matter how “small”, if you have had any arrests, you have to tell immigration and provide certified copies of the police report and the court disposition. USCIS is well know for denying cases just because youdid not give them all the proper documents. However, before you even file anything with immigration, speak to an immigration attorney. Immigration considers many things a criminal conviction, if even if the state court does not. Even if you were never convicted, you must provided immigration with all arrest reports and documents showing how the criminal case resolved. Many convictions will prevent you from getting your green card or citizenship, and may lead to deportation. This is true even for cases that are considered very small in criminal court, such as possession of a small amount of marijuana, or petty theft. However, with some convictions you may be able to file a waiver and some do not even count as an immigration problem. How much of a problem the criminal case is depends also on whether you are applying for adjustment of status, citizenship or coming back into the country with your green card. The rules are quite complicated. So if you have any brushes with the law, talk to an immigration attorney before you file anything, because your ability to stay in this country will depend on it.

Many lawyers, such as myself, offer free or low cost consultations. Check to make sure that the lawyer is licensed and in good standing with the bar of his/her state.

Q. My father is 63 years old and has lived in the United States for 13 years as a permanent resident. He would like to apply for citizenship, but his English is very poor. Does he have to take a test in English to become a US Citizen?

Right now, the only way your father can avoid the English and Civics test is by demonstrating that he has a disability or mental impairment that prevents him from learning English. His doctor would need to fill out and sign Form N-648 requesting an exception to the English testing requirement. Not all disabilities or medical conditions are considered an impairment to learning English. The doctor must evaluate the effect of the disability or medical impairment on the applicant’s ability to learn, and must explain exactly why the medical condition prevents the applicant from learning English. If the doctor explains clearly how the disability or impairment prevents your father from learning English, USCIS will waive the English and Civics requirement, so your father will not have to take the test.

If your father does not have any medical problems that would qualify him for the waiver of English and Civics, he can wait two more years to apply. An applicant for naturalization who has been a permanent resident for 15 years and is 55 or older can take the civics test in his native language. He will be allowed to bring a translator to the interview.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.

OBAMA’S EXECUTIVE ACTION ON IMMIGRATION

On November 20 and 21, 2014, President Obama announced his “immigration accountability executive action,” which includes a number of changes in immigration policies within the Department of Homeland Security and several benefits for immigrants. It is important to understand that this not a new law. Only Congress can pass laws. The President can only make an executive action within the executive branch, so the changes are relatively small. This is not immigration reform, but the new programs affect quite a lot of people.

Based on a briefing on November 20, 2014 by the White House, the following is a summary of the elements expected to be part of the Administration’s announcement of executive actions on immigration. Our understanding is that details (and memos) are still being worked on at this time. Many items are still unclear, and the merits of many may not be known until the details are known. Some will require regulations, but others can be done by memo.

Here is a summary of the main components of the action and the categories of people they will affect.

Change in Enforcement Priorities

The government will still continue deportation. However, they will try to focus on deporting people with criminal convictions, suspected terrorists, and people who only recently crossed the border illegally. They will try to back off from deportations of people with no criminal convictions, long residence in the United States, and strong family ties to the U.S. They will also allow more groups of people to apply for a temporary reprieve from deportation. These groups will be eligible for what is know as deferred action and will get temporary employment authorization in the process. The groups will be know as DACA and DAP, and are explained below.

Expand DACA

The Department of Homeland Security will expand the pool of DREAMers (people brought to the United States as children) eligible for the DACA program that was first created in June 2012. Under the expanded program, individuals are eligible if they entered the country before January 1, 2010 (The old program required entry before June 2007), can show that they have been present in the United States since then, and were under the age of 16 at the time they entered. Initially, DACA required that the applicant be under the age of 31 at the time of application, but the new program has no current age limit. The expanded DACA program will now grant deferred action for three years. Previously DACA granted deferred action for two year periods. Initial DACA applicants and those renewing their status will be eligible for a three-year grant of deferred action and work authorization.

DAP: Work Permits To Parents of Citizens or Permanent Resident Children

DHS will establish a deferred action program for the unauthorized parents of a U.S. citizen or lawful permanent resident child born on or before November 20, 2014. To qualify, individuals must have lived in the United States continuously since before January 1, 2010.  Deferred action will be granted for three years.

Expand Provisional Waiver Program

Currently, many immediate relatives of U.S. citizens who are present in the United States are not eligible to apply for lawful permanent resident  status in the United States because they entered the country unlawfully. Instead, such individuals must depart the United States and request waivers of inadmissibility due to their prior unlawful presence. This is quite risky and which often results in a long separation from their family members in the United States. Because of the risks, many immediate relatives of U.S. citizens do not apply for an immigrant visa and stay in the shadows.

In 2013, USCIS published a regulation creating a provisional waiver that improved the process for spouses of U.S. citizens. These individuals can seek a waiver of inadmissibility due to their unlawful presence. The provisional waiver process lets them get a “pre-approval” of an unlawful presence waiver while in the United States. If approved, the applicant leaves the United States, attends a visa interview at the U.S. Consulate in his or her home country, and is generally granted an immigrant visa without delay to come back to the United States as a permanent resident. (unless the Consulate finds another reason for inadmissibility – a different type of violation). To obtain a waiver, an applicant must show that the bar to admission would impose an “extreme hardship” to a U.S. citizen or LPR spouse or parent.

The President’s action directs USCIS to expand the categories of family members who are eligible to apply under the “Provisional Unlawful Presence Waivers” rule, to include spouses and children of lawful permanent residents and sons and daughters of U.S. citizens. The new policy will significantly expand the number of individuals who are able to take advantage of the process. USCIS is also directed to provide additional guidance on the definition of hardship, to make it easier to prepare and application.

Improve The Employment Based Visa Process

The President announced several beneficial changes in the processes for visas and green cards based on employment or business. Significant backlogs exist in the employment-based green card system even as U.S. businesses face a variety of skill needs. Depending on their country of birth, some of these skilled workers are facing years long wait times to be able to file for adjustment of status, the final step in order to get a green card, once one is available. If that worker is waiting in a temporary nonimmigrant status, such as an H-1B, they are essentially locked into the same job position and title where they started. Under the current system, the spouse is not allowed to work. Many H-1B holders wait a decade to obtain a green card.

The President’s proposal addresses people with approved employment-based petitions (I-140), who are waiting for a priority date to become available to file their adjustment of status applications.  Many Indian born workers are in this position. Now they will be able to file an adjustment of status application before the visa becomes available. This fixes a major problem under the current system, and will allow these families to receive employment authorization and advance parole.

Foreign Entrepreneurs: While details are still not settled, the President’s program will allow certain inventors, researchers, and founders of start-up enterprises to be “paroled” into the United States (or be granted “parole in place” if already in the United States) if they show they have a certain amount of investment funding. DHS will also issue a new regulation or guidance clarifying that inventors, researchers, and founders of start-up enterprises are eligible to obtain a national interest waiver and, as a result, green cards. Both of these ideas have the potential to create new and better pathways for people who will create new jobs in the United States.

Additionally, the President directed the various government agencies involved to provide more clarity and simplicity in guidance on a variety of work or business relation immigration areas. Some examples of this are L1-B visas for specialists transferring between companies, PERM, and expansion of OPT practical training for students.

Citizenship

Contrary to some rumors, the President is not giving out free US citizenship to anyone who asks. However, he directed the government to make the process of applying for U.S. Citizenship easier. The details are still unclear, but one of the points will include the ability of the government to accept credit cards for filing fees*. The President has also asked USCIS to conduct a study to see it some people can have reduced fees.

While the President’s action has many critics and also leaves out many groups of immigrants, the bottom line is that now more people in the immigrant community will be able to get employment authorization, (and consequently valid driver’s licenses) and will be able to work, pay taxes and contribute to the community. This summary does not contain all the details and many details still have to be worked out. However, I have already begun on preparing for some of these applications and I welcome your questions at info@citizenshipclinic.com.

* As some of the reader may know, my firm has been accepting credit cards for the citizenship filing fee for many years now. I wonder if I inspired that particular reform?

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a director of the Citizenship Clinic. He is also an avid cricket fan.

I have been a permanent resident for five years. After I got my green card, I stayed in the US three months, then left for my country for five months. When I returned, I stayed for another three months and then left for my country for another five months. After that, I have been living in the US until last month, when I left for three weeks. When I returned at the airport, the immigration officer asked me how long I was away and I told him. Will I have a problem filing for my citizenship now?

Your travel history should not be a problem for citizenship. Your long trips were less than 6 months and took place more than two and half years ago. Your last three week trip should make no difference. It is common for immigration officers to ask how long was your trip. If you had been gone more than one year, you would have lost your green card. When applying for citizenship, you will have to list all your trips in the last 5 years. Of course, you still need to make sure you qualify for citizenship with respect to other requirements, such as good moral character.

I am filing for my mom’s green card. I just became a US citizen. I own a small business. How much money do I need to show on my taxes to be able to file for my mom? Can I provide my business taxes returns to immigration?

Anyone filing a petition for a relative needs to submit an affidavit of support. The purpose of the affidavit of support is to guarantee to the United States government that the immigrating relative will not receive financial assistance from the government. In order to qualify as a sponsor on an affidavit of support, you must show that your income is 125% of the poverty level for your family (including your immigration relative). The numbers change every year, but for 2014, if you are single and have no dependents, you must show a net income of $19,662. If you have dependents, you must show about $5100 more for each dependent. So if you have a spouse and 2 children, you must show an annual net income of $34,887. Net income means your personal income after you have taken deductions. You cannot use your business income tax returns, because they show the income of your business, not your personal income. You may need to include parts of your business tax returns to explain how you made the income that is on your personal tax return. You still need to include your personal tax return. The net income is usually shown on the last line of the first page. A lot of people think they have enough for the affidavit of support because their business earned a lot of money. However, after the business expenses and after the personal deductions, the amount left over could be very small. If this is your case, don’t despair. Even if you do not make the right amount, you can get a co-sponsor to do the affidavit of support. You will still need to file your own affidavit with your own taxes, and the co-sponsor will need to file a separate affidavit of support, with their taxes. The co-sponsor does not have to be a family member, but he or she must be a US citizen or permanent resident.

I am a green card holder for ten years. I would like to apply for citizenship. I have had seven traffic tickets and a DUI since I got my green card. Will that prevent me from getting my US citizenship?

To get your US citizenship you must show good moral character for the five-year period immediately before filing. As long as the traffic tickets are simple moving violations (speeding, failure to obey traffic sign, etc), it is not considered a lack of moral character. In most cases, even one conviction for Driving Under the Influence (DUI) is still not a sign of bad moral character. However, some DUI convictions involve damage to property or injuries. If that is the case, have an immigration attorney take a look at your specific case. Multiple DUI convictions can also become a problem on the citizenship application. Also, some “tickets” are actually issued for certain misdemeanors. Not all misdemeanors bar you from US citizenship, but some may. One example is petty theft within the last five years. Even if a conviction is not a “bad moral character” conviction, you can be denied citizenship if you lie about it (of fail to disclose it). USCIS will want paperwork from all arrests, no matter how long ago. When applying for citizenship, if you have had any sort of brush with the police, talk to an immigration attorney. It may not be a problem at all, or it may cause a big problem.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 19 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.

I filed for my green card based on marriage. My interview with immigration is coming up. How should I prepare? What questions will they ask me?

It is important to prepare for a marriage immigration interview. The officer will want proof that you married your spouse to establish a life together and not just for the immigration papers. It is a good idea to present as much documentation as possible showing that you and your spouse live together, share income and expenses, and that your friends and family acknowledge you as a married couple. If you and your spouse have children together, it is usually easy to prove that you have a valid marriage. The same is true if you have made many purchases jointly, particularly real estate. However, for couples that have been married recently, have limited funds and have no children together, the task is more complicated. I frequently sit down with my clients to prepare for a marriage interview. We go over various parts of the couples life where they are able to document that they are a real couple. If the immigration officer sees few joint documents or suspects for some other reason that the couple’s marriage may be fraudulent, the couple is separated and questioned about different aspects of their life. The answers are then compared. If the answers contain discrepancies, the officer will try to deny the case. Unfortunately, sometimes the husband and wife provide different answers only because of poor memory, or because they understood the questions differently. There is no set list of questions that officers ask. You can’t find it on the internet and study it. Each officer has a different series of questions. However, there is a way to prepare. I meet with my clients to do practice interviews so that they are ready for the types of questions that might get asked and how to make sure they understand the officer’s questions and that they can provide answers the officer understands.

I am a permanent resident. Can I petition for my brother in India to get a green card? What about his wife and children?

No. You have to be a US Citizen to petition for a brother or sister. There is a quota on brothers and sisters of US Citizens, so that once a petition is filed there is a long waiting period until your brother can get his green card. Right now the wait time is approximately 12 years. Do not be discouraged by the wait times. Apply for your brother as soon as you become a citizen. The wait times can change, and if you don’t apply, your brother will never get his green card. As for his family, his wife will be able to get a green card with him, but only those children that are under the age of 21 at the time the green card becomes available will be able to get green cards with your brother. That means if his children are very young now, they will probably be able to immigrate with him. If they are teenagers, then the likelihood of them being able to immigrate with your brother is very small.

I was married in my country many years ago. My wife and I have separated and I have lived in the United States for 7 years. I have met a special lady here, and I would like to marry her. She is a US citizen and wants to apply for my green card. Do I need to divorce my wife in my country, since that is where we got married, or do I even need a divorce at all, since I did not marry her in the United States?

You definitely need to divorce before you marry again. Otherwise the second marriage will not be valid, and you certainly will not be able to get your green card based on marriage. No matter what the location of your first marriage, it is considered valid in the United States and you must first divorce before remarrying. You do not have to get a divorce in your home country. Most states in the United States will allow you to get a divorce if you have physically resided in that state for a certain time, even if your spouse is outside the country.

I am a US citizen. I would like to apply for my parents’ green card. They have a visitor visa and they come to the US once or twice each year to see me and my children. How long will it take to get them a green card and can they travel while we are waiting for the application to be approved?

Your parents have two options. They may wait in their home country during the process or they may complete the process inside the United States. If they wait in their home country, you must first file a petition with USCIS, which will take around 6 months and then complete immigrant visa processing at the National Visa Center. This may take another 6 months or so, but the processing times vary. If your parents choose to come to the United States on their visitor visas, you may file the family petition at the same time as they file their applications to adjust status. The total process here takes about 6-8 months. Once your parent apply for adjustment of status, they will not be able to travel outside the United States during the process, unless they apply for an advance parole. This takes approximately 3 months. The advance parole document will allow them to go outside the US and return to the United States to resume their application for the green card.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.
Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.

I filed for my green card through marriage. My wife and I had an interview 8 months ago, but we still have not received an answer. When I check the case number online at the immigration website, it says the case is still processing. How long after the interview will I get my green card and will I be able to see online that the case is approved?

Many cases are approved on the day of the interview or a few days after. That is assuming that you had all the necessary documents with you or already in the immigration file on the day of your interview. However, if you were missing something, the interviewing officer may have given you a letter with a list of what additional documents to bring or mail in, or the officer is planning to mail you such a letter. It could also be that the officer is waiting for something on your case from another government agency (for example, a background check) or review from a supervisor or another department. Each officer and each local office has different time frames for how long it takes to do any of these things. Sometimes green card are approved the same day as the interview, some within days or a week, and yet others within months or even years.

The important thing is to make sure that USCIS is not waiting for you to send something. Did the officer mention that he or she needed more documents? You also want to make sure that the address you provided to USCIS is still correct. You want to be able to receive whatever correspondence immigration sends you. If you move, don’t rely on a post office change of address to forward your immigration paperwork. A post office address change will delay some correspondence and certain items, like work permits and green cards do not get forwarded by the post office, but rather get returned to the sender. Always do an address change directly with immigration.

Checking online can be helpful, but the USCIS online case check system is limited. It does not show every action that has been taken on your case, especially at the local office. However, if your green card is approved and mailed to you, the Online system will generally show it. To find out what is going on with your case, you can make an appointment at your local office. Go to www.uscis.gov , click INFOPASS” and follow the prompts.

I applied for my green card several years ago. I had an interview and later received a letter that the case was denied. Now I just received a letter that I have to see an Immigration Judge. It does not say what day and time, but it does have the location. Do I need to go there or can a lawyer take care of it?

Unfortunately you have been placed in removal proceedings. You will now have to go to Immigration Court to fight deportation. You should receive another letter that will tell you the actual date and time of your hearing. If you do not, you may check with the Immigration Court’s automated phone system, by calling 1(800) 898-7180 and following the voice prompts. (The system has been down since April of this year, but any information from before April is still available by calling). The letter that you received should state what the charges against you are – this means which immigration laws the government believes you have violated. You may contest the charges (say that they are not true) and you may also have defenses. Since now that the government is actively trying to deport you, do not attempt to do this all by yourself. Immigration law is complicated and a mistake can result in deportation. You should look for knowledgeable in immigration laws. In any case, you MUST show up for court when you get the date and time of the hearing. If you do not come to the hearing, you will automatically lose your case and have an order of removal entered against you. Even if you have not found the right attorney, still go to the hearing. At the first hearing, many immigration judges will allow you some time to find an attorney, but don’t wait until the after hearing to start looking for an attorney.

I have my green card for almost 10 years. I want to apply for U.S. Citizenship. Do I need to renew my green card first or can I just apply for citizenship right away?

Generally you do not need to renew a 10 year green card before applying for citizenship. Although USCIS representatives will tell you that you need to renew your green card, you do not stop being a permanent resident just because the card expires. You cannot be deported for having an expired 10-year green card and Customs and Border Patrol will permit you to enter the United States even if your card has expired (although they will tell you to renew it ASAP and maybe even give you the form to fill out). You can still apply for citizenship, even if your card has expired. Applying for citizenship directly, without renewing the green card, will save you $450 in USCIS filing fees. Of course, you should review the requirements for citizenship to make sure you qualify before you apply. Speak to an immigration attorney. The problem with having an expired green card while waiting for your citizenship, is that some private organizations, such as employers, may not want to accept it as proof of legal status. However, if you are currently employed, your employer should not ask you for an updated green card.

The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances. If you have any questions, please call me at (954) 522-4115.

Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.

If your husband is physically abusive, call the police and get to a safe place. You do not need to be afraid of deportation. You are a permanent resident and your husband has no right to deport you. Since your green card is for 2 years, you are considered a conditional permanent resident. To extend your card, you need to file a petition to remove the condition on your card. Generally, both you and your husband must file it jointly during the last three months of your card’s validity. You must enclose proof that you and your husband have a valid marriage and are still living together. However, if your husband is physically or psychologically abusive, you may file the petition to extend your card on your own. You must have proof of the abuse through either a police report or a psychological evaluation. In this case, you must still be married when filing, but you do not have to wait the full two years before filing. You can file as soon as the abuse happens. You are definitely free to leave your husband and live somewhere safe. If there was no abuse, you may file without your husband’s signature only if there has been a divorce, and you must provide evidence that you entered into the marriage in good faith, and not to evade immigration laws, but that the marriage deteriorated due to circumstances beyond your control.

My son was arrested by Immigration and he is now detained. He has his green card, but 5 or 6 years ago he had a problem with the police. Will he be deported?

The answer to your question depends on a lot of different things. Your son will have a court hearing to determine is he is removable. He may also be eligible for a bond, so he can get out of detention. Unlike criminal case, there is no right to a bond, so whether he gets a bond, and the amount of the bond, depends on the circumstances of the case. The immigration court will make a decision if the type of crime on his record makes him removable. Since states and US immigration have different definitions of what is a conviction, the Immigration Judge will need to consider a number of factors to see if your son’s record qualifies as a conviction and if it is the type of conviction that warrants deportation. Even if your son is found to be removable, he may qualify for relief (in other words, the Immigration Judge may allow him to stay in the US). This will depend on how log he has lives on the United States, his family ties, rehabilitation, the nature of the crime and some other factors. These case are quite complicated, so see an immigration attorney right away.

I am a US citizen and I want to file for my parents in India. I was born in a very small village and do not have a birth certificate. Can I still file for them?

Yes. You will have to prove that they are our actual parents. If there is no birth certificate, you will need to get an original letter from a government authority in India, stating that a birth certificate is not available. Then, you will need to provide secondary evidence that your parents are truly your parents. For example, you can present affidavits from people who have known you since birth, your school records, etc. You may also get a DNA test. The DNA test will only be accepted if it is done by certain laboratories recognized by the Department of State.

If you try to register your birth with the authorities now, you will run into the same problem with USCIS. You will have a birth certificate that was not issued the year you were born, but much later, when you was already an adult. This type of birth certificate is suspicious to immigration. What if your parents are not really your parents, but people who paid you to petition for them and bribed the registrar to give you a birth certificate with their name?

In these cases, immigration will want more proof that your parents are really your parents. Often USCIS will send you a letter asking for these documents, but they only give you a short time to respond. It is very important that you answer their request in the time they give you. If you send in documents late, USCIS will deny your case, and you may lose whatever time and money you have already put in. See an immigration attorney quickly, to help you come up with a list of documents that will satisfy USCIS.

For how many people can I file an affidavit of support? I sponsored my wife years ago and now a friend has asked me to be his sponsor. Can I do it?

The answer depends on your income. Each person you sponsor on an affidavit of support counts as a dependent. The number of dependents determines the minimum income you need to show on your tax return to be able to sponsor someone. So if you are single, you need to show an annual income of $19,662 to file for your wife. Your wife will stay your “dependent” for affidavit of support purposes until she becomes a US citizen or works 40 quarters. In the meantime, if you want to file a second affidavit of support for someone, you need to show a minimal income of $24, 737 If you have children, the required income will go up. The advice in this column may not apply to your specific situation, even if it seems similar in nature. The only way to obtain legal advice is by speaking with a qualified attorney and reviewing your specific circumstances.

If you have any questions, please call me at (954) 522-4115. Edward Boreth is an immigration attorney who has practiced law for 18 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.