What are the Immigration Benefits Now that Same Sex Marriage is a Right in all US States?

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all-rights-for-all

The recent U.S. Supreme Court decision granting same-sex couples the right to marry in all of the U.S. states and unincorporated territories is another cause for celebration!  Immigration law treated married same-sex spouses just the same as different-sex spouses. This included the right for a U.S. citizen to petition for a same-sex fiancé(e) abroad, petition to adjust status for a same-sex spouse to obtain a marriage based green card, and also for a U.S. citizen or permanent resident to petition for stepchildren created by a same-sex marriage.  However, prior to the ruling that same-sex marriage is a constitutional right, a same-sex couple sometimes had to travel to another state or country to marry. That potential hardship has now been removed, and U.S. citizens or permanent residents seeking to petition for a same-sex spouse may marry anywhere in the U.S.

10 Immigrant Categories With No Financial Ability Restrictions!

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Money and Gavel

You may not be required to prove your financial ability to be eligible for immigration benefits!  There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a green card or other benefits with USCIS.  These include:

  1. Refugees  (or current refugees applying for adjustment to permanent resident status)
  2. Asylum applicants (or current asylees applying for adjustment to permanent resident status)
  3. Amerasian Immigrants (for their initial admission)
  4. Individuals granted relief under the Cuban Adjustment Act (CAA)
  5. Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
  6. Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
  7. Individuals applying for a T Visa or have one and are trying to become a permanent resident and get a green card
  8. Individuals applying for a U Visa or have one and are trying to become a permanent resident and get a green card
  9. Applicants for Temporary Protected Status (TPS)
  10. Certain applicants under the LIFE Act Provisions

If you have any questions or concerns regarding if you need to prove your financial ability or file an Affidavit of Support, feel free to contact us at Your Immigration Angel!

Can USCIS Reject MY US Green Card Based on My Financial Ability ?

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Man with money glasses

Inadmissibility based on the public charge ground is determined by the totality of the circumstances.  This means that the adjudicating officer must weigh both the positive and negative factors when determining the likelihood that someone might become a public charge.  At a minimum, a USCIS officer must consider the following factors when making a public charge determination:

  • Age
  • Health
  • Family status
  • Assets
  • Resources
  • Financial status
  • Education and skills

The officer may also consider any affidavit of support filed on behalf of the individual.  In assessing the totality of the circumstances, including the statutory factors above, an officer may consider the individual’s receipt of certain publicly funded benefits.  Not all publicly funded benefits are relevant to deciding whether someone is likely to become a public charge.  When determining whether someone is likely to become a public charge, USCIS will consider whether the individual is likely to become primarily dependent on the government for subsistence as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.  Short-term institutionalization for rehabilitation is not subject to public charge consideration under existing field guidance.

Do I Have to Prove My Financial Ability to Get a U.S. Green Card?

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guy counting pennies

For immigration benefits adjudicated by USCIS, whether a person is likely to become a public charge is often considered when someone is trying to become a permanent resident and obtain a U.S. green card.  It is also considered when someone applies for certain non-immigrant or other temporary benefits, for example by extending non-immigrant status within the United States.

According to the Immigration and Nationality Act (INA), if you are seeking admission to the United States or seeking to adjust status to become a lawful permanent resident, you are inadmissible if  “at the time of application for admission or adjustment of status, you are likely at any time to become a public charge.”  If an individual is inadmissible, admission to the United States or adjustment of status is not granted. Public charge does not apply in naturalization proceedings.

Financial Support and Obtaining Your Marriage Green Card

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Fountain Pen on Ledger

U.S. citizens and lawful permanent residents (LPRs, or green card holders) are the only U.S. residents with the rights to obtain permanent residence or green cards for their spouses.  Anyone who immigrates to the United States through a petition filed by a family member must be able to prove that he or she has financial support from the family member in the U.S.  The financial sponsor must file an Affidavit of Support.  An Affidavit of Support is a form that a qualified individual (a sponsor) files on your behalf when you are applying for a green card through your marriage to a U.S. Citizen or LPR spouse.  The purpose of the form is to show that you have the financial means to live in the United States without needing welfare or financial benefits from the U.S. government.  The law requires that the sponsor demonstrate that he or she is able to assist you financially.  The sponsor must show that he or she has an annual income of not less than 125 percent of the federal poverty level.  Failure to file a qualifying Affidavit of Support showing sufficient income levels with your Adjustment of Status makes you inadmissible as a public charge.  USCIS will not allow anyone to immigrate if they do not have financial means to live in the U.S. and will reject anyone who will become or is currently a “public charge.”  If you have any questions regarding your marriage green card application or Affidavit of Support, please feel free to contact Your Immigration Angel!

Did You Enter Without Inspection? YOU May Be Eligible for the LIFE Act 245(i) Exception!

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Noncitizen spouses who have entered the United States without inspection may still be eligible for immigration benefits under section 245(i) of the LIFE Act.  Many people who have either never had valid immigration status in the U.S. or who have fallen out of valid status are allowed to apply for adjustment of status in the U.S. if they pay a penalty fee.  Without this type of waiver, many people who do not have valid status in the U.S. would be unable to seek a visa while in the United States.  Without this waiver, they would be required to seek their immigrant visa from within their home country.  However, due to the status violation, they also would be barred from reentering the U.S. for at least three years.  In many cases, they may even be banned from re-entering the U.S. for ten years!

To be eligible for this waiver, you must:

  • have been present in the U.S. before December 18, 2000, and
  • have either filed a family or employment based residency petition on or before April 30, 2001, or you must have been the derivative beneficiary of such a petition.

Even if your initial petition was not successful, but was filed on or before April 30, 2001, you may still be eligible for the 245(i) waiver.   Under certain circumstances you may apply again for residency through another family petition.   Immigration law is one of the most complicated areas of law, with a constantly evolving and changing laws and regulations.  At Your Immigration Angel, we are committed to staying on top of the most recent changes to help you better follow your immigration path! Let us guide you on your path and assist you in achieving your immigration goals!

Do You Know the Limitations of the K-3 or K-4 Spouse Visa?

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kissing couple with kid

While the K-3 and K-4 visa offers many benefits, there are some other considerations to think about, depending on your personal situation.  For example, did you know that even though an immigrant visa is immediately available when a K-3 Petition for Alien Relative reaches the Department of State, but then your spouse’s children are no longer eligible for K-3/K-4 nonimmigrant status?  In that situation, the children must immigrate as lawful permanent residents.  If the K-4 visa holder does not have an approved Petition for Alien Relative at the Department of State at that time, he or she will be ineligible to immigrate with the spouse of the USC.

It is advisable that the U.S. citizen petitioner file a separate green card petition on the child’s behalf concurrently with the green card petition that is filed for the spouse.     While there is no requirement that a separate application needs to be filed for the child’s petition, it is advisable if a K-4 visa is desired.

K-3 or K-4 nonimmigrant visa holders are only admitted for a 2-year period.  A K-3 or K-4 nonimmigrant visa holder may apply for an extension of status in 2-year increments as long as the marriage-based green card visa petition or a corresponding application for adjustment of status or visa application is still pending adjudication.  A K-4’s authorized stay automatically expires when the K3’s status expires.

Did You Know That You May be Eligible for an Employment Based Green Card?

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SOL Work and Live US

Did you know that if you work for a U.S. based company, they can sponsor an employment-based Green Card for YOU?

This Green Card offers foreign nationals the privilege of living and working permanently in the United States. The employment based green card is allocated by employment type and “preference,” and each have specific requirements.

First Preference is given to persons with extraordinary ability, such as outstanding professors and researchers or managers and executives in multinational companies.

Second Preference is given to professionals with advanced degrees, persons with exceptional ability and also to exceptional professors and researchers. There is also another category for Second Preference, with a National Interest Waiver (NIW).  This is available for persons with exceptional ability involved in activities that will substantially benefit the U.S. national interest or to people with advanced degrees involved in activities that will substantially benefit the U.S. national interest.

Third Preference is provided to professionals with a U.S. bachelor’s degree or a foreign equivalent.  It may also be available to skilled or unskilled workers.

There are a number of specialized jobs that may allow you to get a green card based on a past or current job, such as: Afghan/Iraqi Translator, Broadcaster, International Organization Employee, Iraqi who assisted the U.S. Government, NATO-6 Nonimmigrant, Panama Canal Employee, Physician with a National Interest Waiver, and Religious Worker.

If You or Your Spouse “Entered Without Inspection,” There May Still Be Options!

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Border and IDs

All noncitizens entering the U.S. are required to present themselves to a USCIS immigration officer for inspection.  This inspection meant that they will be assessed and that they must demonstrate the right to enter the country based on approval obtained prior to entry in the U.S.  If you do not have an approved means for entering the United States, then the Customs and Border Patrol or USCIS officer may refuse entry to you.

If you have entered without inspection (EWI) and without the proper documentation, there are a limited number of legal immigration options available to you.  If you or your spouse EWI, that means that you do not have legal immigration status in the United States.   That also means that you cannot file to change or adjust your status, as you do not have a legal status to begin with.  It is not possible to adjust status even if you marry a U.S. citizen or have U.S. citizen parents or children that will petition for them. However, there are a few exceptions that might allow an adjustment of status. The two most common are the LIFE Act and a waiver implemented in new immigration law as of 2012.

Are you Eligible for a Family Based United States Green Card?

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Family_Portrait

Relatives of U.S. Citizens can obtain U.S. Green Cards!   If you have a U.S. Citizen relative and fall under any of the below categories, it is likely that you are eligible for a U.S. Green Card!

  • Spouse
  • Unmarried Child, Under the age of 21
  • Unmarried Stepchild, Under the age of 21
  • Adopted Child, Under the age of 18
  • Unmarried Child, Over the age of 21
  • Parent or Step-parent
  • Married Son or Daughter
  • Brother or Sister

Even people who are relatives of U.S. Green Card holders may be eligible for a U.S. Green Card themselves.  If you have a relative who holds a valid U.S. Green Card, and you fall under any of the below categories, it is likely that you may also be eligible for a U.S. Green Card.

  • Spouse
  • Unmarried Child, Under the age of 21
  • Unmarried Stepchild, Under the age of 21
  • Adopted Child, Under the age of 18
  • Unmarried Child, Over the age of 21

If you have any questions about your eligibility to obtain a U.S. Green Card, please feel free to contact Your Immigration Angel for a free consultation.