Immigration Q & A July 2012

Author by Edward Boreth

Q. Did Obama pass the Dream Act? My son came to the US when he was 8 and is now 22. His tourist visa has long since expired. Will he benefit from this new law?

The Dream Act has not passed. However, President Obama issued an executive action granting deferred action for a group of immigrants. Deferred action means that the government will not try to deport you. The order provides for work authorization and a stop to deportation for young undocumented immigrants. This allows them to come out of the shadows, work legally and obtain driver’s licenses and many other documents they have lacked.

This does not grant any permanent legal status, nor a path to citizenship.

In order to qualify, you must be under 30 years old now, have arrived in the United States before you were 16 years old, and have lived here for at least 5 years. You must have graduated from high school, obtained a GED or an honorable discharge from the military, or be in school now. You must also not have any criminal record (with the exception of very minor misdemeanors).

Those who demonstrate that they meet the criteria will be eligible to receive deferred action for a period of two years, subject to renewal, and will be eligible to apply for work authorization. Although this rule is effective immediately, it will probably take about two months for USCIS to provide instructions for the application process.

My son just became a US Citizen. I am in the United States on an E-2 visa. Can my son apply for me and how does the process work? Also, my other son is 26 and lives in the UK. He is not married now, but is planning to marry soon. How can he get his green card?

A. Your son can apply for you and you can adjust status in the United States, since you are already here. Your son’s petition and your application to adjust status can be filed at the same time. It will probably take around 6 months to complete the process, and you may stay here while it is pending. Your son will also need to file an affidavit of support, which guarantees to the government that you will not receive any need based government assistance. Your son will need to include his income tax returns and if his income is not sufficient to meet the 125% poverty guideline requirement, you will need a cosponsor. A cosponsor does not have to be related to you, but must be a permanent resident or citizen.

You son who lives in the UK will not be included in your case. Your US citizen son can apply for his brother. The wait time for that visa to become available is about 11 1/2 years at this time. After you become a permanent resident, you can apply for your 25 year old son as long as he remains unmarried. That wait time is about 8 years currently. After you become a citizen, your son’s visa wait time will change. At current wait times, it will shorten by about a year. If your son marries, you cannot apply for him as a resident. You can apply for him only when you become a citizen. That wait time is currently about 10 years, but of course it will take you at least 5 years to get your citizenship. Therefore, if your son in the UK does not marry, you should apply for him once you have your green card, because that will be the shortest overall waiting time. However, if your son plans to marry in the next 7 to 10 years, your best bet is to have your US citizen son file for him.

Q. My employer is ready to sponsor my H-1B, but I was told that the quota was full. What should I do now?

This year, the H-1B cap was reached in about 2 months, a much shorter time than last year. Although this is a good sign for the US economy, it puts a hardship on those who were not able to file in the short time span. Have your employer talk with an immigration attorney to see if the employer qualifies for filing a cap-exempt H1-B. If not, your employer will have to wait until April 1, 2013 to file the H1-B petition for employment to start October 1, 2013. This means that you will not be able to get H1-B status for more than a year. If you are in the United States, you must find a way to maintain your legal status until then, or look for an alternative type of employment visa, such as O-1 or L-1. Of course, you would have to meet the criteria for these. Now is the time to speak to an immigration attorney and do some serious planning.

Q. I married a US citizen and received my two year green card. It will expire in next year. Our relationship is not working very well. My husband has become abusive and threatens me with deportation every time we argue. He recently told me that he wants to file for divorce and he will not sign the form to extend my green card. What shall I do?

A two year green card is called conditional residence. To extend your card, you need to file a petition to remove the condition on your card. Generally, you and your husband have to both sign the petition. You have to send the petition to USCIS 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. 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. The proof can bee it her a police report or a psychological evaluation from a licensed mental health professional. In this case, you should generally still be married when filing, although there are some exceptions. However, you do not have to wait until the expiration of your card to file. If there was no abuse, you may file without your husband’s signature, but only if there has been a divorce, and you must still 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. You should provide all documents showing that you and your husband actually lived together.

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 17 years. He is a partner at Shapovalov & Boreth and a director of the Citizenship Clinic. He is also an avid cricket fan.