Law Talk Episode 7: Family-based Immigration

Jacob Tingen: Welcome to Law Talk with Tingen & Williams. We haven’t done this for a couple of weeks because of snow and weather, and a couple of other things, but we are happy to be back, and happy to be talking to you today with my partner, Ben Williams. Ben Williams: How’s it going?…

Jacob Tingen: Welcome to Law Talk with Tingen & Williams. We haven’t done this for a couple of weeks because of snow and weather, and a couple of other things, but we are happy to be back, and happy to be talking to you today with my partner, Ben Williams.

Ben Williams: How’s it going?

Jacob Tingen: So anyway, what we’re going to talk about today is family-based immigration petitions. One of the things that I think people don’t typically understand about immigration, one of the questions or statements that we frequently hear is, “Why don’t these people just get in line?” The interesting thing about immigration is that there is no line.
Ben today is going to talk about how some people do get in the line, and the thing is, you have to have some kind of family or business relationship in order to get in the line. How does that work? Just kind of give us a quick overview of how you get in line to get a green card or come to the US.

Ben Williams: As Jacob mentioned, it depends on how you’re being petitioned, how you start the process. Basically, there’re categories for eligibility to get a green card. We’ll use family-based as an example. They have different levels of immediate relatives and different types of relatives, basically. I think right now you can Google just a USA Visa Bulletin to see the waiting times, but for example someone that’s say a sibling of a US citizen, their wait time, I think, is close to 15 years once the petition is filed versus someone who’s a spouse, minor child, or parent of a US citizen, they’re considered an immediate relative.
There is no waiting period other than the time it takes to process the application, so that’s much quicker. Again, they have this Visa Bulletin that changes … Sort of changes, it’s updated monthly, and you can just look up what category you’re in based on the petition that was filed for you, and see just how long you have to wait until you’re eligible to apply for permanent residency.

Jacob Tingen: Let’s talk about the Visa Bulletin. Again, in the context of how do I get in line, and as Ben mentioned, if you’re an immediate relative, there is no line, right? Is that how that works?

Ben Williams: Right, yep. Immediate relatives of a US citizen-

Jacob Tingen: You just jump straight to the front.

Ben Williams: Yeah, basically it’s just you can file for … Usually it’s the I-130 Petition is the petition for family members. Just do the I-130, and you can apply for permanent residency immediately, along with that, and get your green card as soon as the process the application.

Jacob Tingen: Can you define for us what an immediate relative is? Because I would think that a spouse of anybody with legal status is an immediate relative, but is that not the case? How does that work?

Ben Williams: Yeah, pretty much the three main categories of immediate relatives are spouses of US citizens, children, if they’re under 18, and unmarried of US citizens, and parents of US citizens are also considered immediate relatives. Other family relationships, it’s just siblings, adult children, and just other types of relationships are the ones that end up having the longer wait times.

Jacob Tingen: The longer wait times. You also mentioned the Visa Bulletin. Can you just kind of tell us a little bit more? What is the Visa Bulletin?

Ben Williams: Basically, not to get too in depth with the applications here, but when you fill out the I-130, you state the relationship, based on who was petitioning for you. Say you have a US citizen spouse that’s petitioning for you. You would fall under … On the Visa Bulletin, it’s just basically just a spreadsheet that has the different categories and what’s called the Priority Date, which is the date when your application was approved. That is your priority date, or when it was received.
When that priority date is current, or equal as your priority date, you can apply for residency. You just look at the chart, you find the category, and there’re descriptions for who fits into what category. You would find spouse of a US citizen, and see what the wait time is.

Jacob Tingen: Right. Then the same for the uninitiated … The Visa Bulletin is basically just a listing of whose in line, or where you are in line. We might actually post an example approval notice with the show notes so that you can take a look. If you literally just Google the term I-130 Approval Notice … I did, I’m looking at it right here, and you just click on the Images tab, you can kind of see what an I-130 Approval Notice looks like, and you’ll notice a number of different boxes.
There’s the receipt number, the receipt date, and the notice date. Then, the priority date is one of those boxes there. The Visa Bulletin, like Ben said, is published every month at the Travel Department, the State Department website: Travel.State.gov, and if you literally Google Visa Bulletin, it’s the first thing that pops up. It’s released each month.
So, like Ben was saying, you compare the priority date to the Visa Bulletin, and if for your country and category your priority date is current, then you finally have a green card. You’ve waited in line long enough, and the green card comes to you. Some people have to wait how long, you were saying?

Ben Williams: It’s probably a lot easier to explain if you’re actually following along and looking at the Visa Bulletin, but based on the country you’re from and the relationship, like siblings of US citizens from the time their petition is received, it can take around 15 years for their priority date to be current. It can be longer than that. It’s typically not quite that long, but that’s sort of one extreme example.
Basically, what that means is for a US citizen filing for an adult siblings that lives in a different country, they file the I-130. From the time that gets received, that sibling has to wait outside the US until that priority date is current. So, that 15 years, they have to wait outside the US for 15 years until they can come in and apply for residency.

Jacob Tingen: So it just kind of takes this huge amount of time. Can you have more than one petition going at a time? Say your brother petitions for you, but also your parents, or your spouse, or whoever.

Ben Williams: Yeah, you can. Again, since the priority date … The time difference can be so long. If, for example, someone petitioned for their sibling and they were waiting the 15 years, and meanwhile that sibling met a US citizen, fell in love and got married, and the priority time was a lot sooner, the new sibling’s citizen spouse could then file the petition, and then that would be their priority date. They would avoid having to wait just for that-

Jacob Tingen: Yeah, they could overcome a long wait period.

Ben Williams: Yeah.

Jacob Tingen: That’s all very good news.

Ben Williams: Mm-hmm (affirmative).

Jacob Tingen: What are some ways then … Let’s just talk strategy. If I’m an immigrant, and I want to … No, let’s say I’m a US citizen spouse, and I’m married to someone who’s an immigrant from another country. What’s the process look like? How do I get my spouse into the US? Let’s assume that, I don’t know … A common scenario that we see is people go on a study abroad, meet someone, fall in love, will eventually get married, and then discover that this process is more difficult than it probably should be. What’s some of the advice, or some of the issues that kind of come up in that scenario?

Ben Williams: This is where … So, in the scenario, they’re already married? Is that-

Jacob Tingen: Yeah, so they got married. They just thought they’d go ahead and rush it because everybody knows, “If you’re married to a US citizen, everything is much easier.”

Ben Williams: Okay, so the spouse is in the US or outside of the US? There’s no easy way to just-

Jacob Tingen: I go to study abroad, and marry the person and they’re abroad-

Ben Williams: Okay.

Jacob Tingen: They’re outside of the US-

Ben Williams: Okay.

Jacob Tingen: They’re a foreign spouse, the non-US citizen spouse is outside of the US.

Ben Williams: Okay.

Jacob Tingen: What happens now?

Ben Williams: That scenario actually shouldn’t be that complicated beyond the normal complications that involve the immigration. First step is you just the US citizen would file the I-130 Petition for their immigrant spouse. It’s just a form you fill out, you submit that through the mail to immigration. Once that I-130 gets approved, the spouse of the US citizen, which is called “The Beneficiary” on the petition.
So, the beneficiary, in their home country, will get a notice to have an interview at their US Embassy or Consulate, and there’s some online information to fill out. Basically, the I-130 gets approved in between six months and a year, depending on the scenario. They have the interview at the Consulate. They’ll get a Visa stamp to come to the US, and then once they’re in the US, as the spouse of the US citizen, they can then apply for permanent residency. If all goes well, six months to a year after they come to the US, they will have a green card.

Jacob Tingen: Right, so it’s a little convoluted.

Ben Williams: Yes.

Jacob Tingen: That was the scenario where I’m a US citizen, but let’s say instead I’m a permanent resident. What changes?

Ben Williams: Really, nothing. Permanent residents can still petition for their spouse. The only difference would be when you were going to be eligible for citizenship. That might change things if you became a citizen during the process, but otherwise, not much would change.

Jacob Tingen: The wait time is longer then, right? Again, going back to the Visa Bulletin, if you’re a US citizen, and you’re an immediate relative, there’s no wait time. If the spouse giving status is a permanent resident, then the wait time could be anywhere between two years, to one year, to a month … I mean, it changes all the time, right?

Ben Williams: That’s true, yeah. It depends, I guess, on the country and the scenario. Again, even immigration lawyers look at the Visa Bulletin because this stuff changes all the time.

Jacob Tingen: Right, so it changes constantly. Let’s change this hypothetical, and just kind of walk through some different scenarios, just so people have a better idea of what’s possible, or what’s likely to happen. Let’s assume, for example, that the person is in the United States, and they’re here lawfully, they’re here on an F-1 Visa. So, a foreign person is here on an F-1 Visa, they marry a US citizen, fall in love. What does that process look like?

Ben Williams: It can get a little tricky in that situation just because things like the F-1, Student Visas, Work Visas, even Visitor Visas, are what’s called Non-Immigrant Visas, which means basically they’re temporary, so when you get approved for that type of Visa, it means you plan to return back to your home country. In that scenario, you probably would want to speak to an immigration lawyer, just in case there’re issues with any kind of Visa fraud or the intent you had when you got the Visa.
Assuming that you came just to be a student, and just happened to meet someone and fall in love, that’s totally fine. You can show that it was not your intent to meet this person you didn’t know before you came to the US and get married. Once they are married, really the process is a little more streamlined, I guess, because they are already here in the US with a lawful entry, with a Visa they had prior. Basically, you can just file everything all at once.
You just show proof that you’re married, and that it’s a valid marriage, and you filed the I-130 Petition. Except in this case, you can file it with the I-45 Application for Permanent Residency. If all goes well, it should take just around six months, maybe a little longer, to actually get the green card. It’s just a little more streamlined if you’re actually in the US.

Jacob Tingen: If you’re actually in the US. Now with a couple of exceptions, right? If you’re in the US unlawfully, things are not streamlined at all, right?

Ben Williams: Right. Then things are much more complicated-

Jacob Tingen: Yeah, they like complexity in immigration law.

Ben Williams: Yeah. I’m not sure how much we want to get into that today, but definitely, if you’re in the US unlawfully and get married to a US citizen, there are things you can do to fix your status. I just would recommend definitely speaking to an immigration attorney before you do anything.

Jacob Tingen: Yeah, that’s definitely the point that you want counsel. Then, I would agree with something Ben said just a few seconds ago about talking to an attorney if you’re going to get married, and you’re here on any other kind of Visa, like on a Student Visa. Maybe discussing your plans with an attorney might be a good idea. One of the examples is if you come over on a Visitor’s Visa and you’ve been dating someone for a long time, and you’ve been visiting them in the US, and then you come over on one trip and you say, “You know what? To heck with it. Let’s just get married.”
You’ve only been here in the country on this visit two weeks. Then, you get married. Well, USCIS, when they look at Applications for Permanent Residency, which is an application for a green card, they look at two concepts called Immigrant Intent and Non-Immigrant Intent. That’s what Ben was kind of referring to is that when you come in on a Non-Immigrant Visa, which is a Visa … Non-Immigrant meaning you don’t plan to stay forever.
So, a Visitor’s Visa is a Non-Immigrant Visa. Even though you’re an immigrant, your intent was not to immigrate, so it’s a Non-Immigrant Visa. I mean, these terms … Lawyers love this stuff, I guess. Not us, but the people who made up the laws do. It’s a non-Immigrant Visa. If you come in two weeks after and get married, well then they’re going to assume that you had an Immigrant Intent, and they’re going to say you entered fraudulently, and they’re not going to give you the green card, and they may even deport you. Right? Isn’t that how it works?

Ben Williams: Yeah. The penalty, that’s why we recommend speaking to an attorney before you start this, if you happen to come on a Non-Immigrant Visa, just because the punishment does not seem to quite fit the crime. You might have just done it to make the process a little quicker, but yeah, immigration views that as Visa fraud, basically saying when you applied for this Visitor Visa, you actually intended to stay in the US permanently, and you were therefore lying on your Visitor Visa application. That’s Visa fraud, and they could charge you for the crime, they could deport you, they could ruin any chance you’ve ever had of coming to the US legally-

Jacob Tingen: And getting a green card.

Ben Williams: Yeah, if they thought it was severe enough. There’s a lot of risks involved. It can be easy to fix, and to straighten out beforehand. It’s just something you want to be aware of, if you happen to be in that situation.

Jacob Tingen: Yeah. Again, like Ben was saying, it is definitely a good idea to talk to an attorney before you make important life decisions like getting married, especially because the immigration consequences are so far out there. The punishment does not fit the crime in any way. One of the other things that I would add is in the event that you enter on a Visitor’s Visa and you are dating someone or maybe want to get married, there is a memo out there that USCIS will not consider Visa fraud as long as your marriage is after about 60 or 90 days.
Again, that’s one of those reasons you’d want to talk to an attorney, because they’re going to be aware of maybe these kinds of quirks and how the law is interpreted. Apparently, if you get married within one month of entering, they’re going to assume you had an Immigrant Intent, whereas if you get married within two months of visiting, they’re going to assume that you had a Non-Immigrant Intent, but then your intent changed.
I mean, it’s just so bizarre how we just draw these lines in the sand and call it good. Again, definitely speak with a lawyer. You’re listening to Law Talk with Tingen & Williams. You can call us for your own free legal consultation at 804-477-1720. We’re here generally every Wednesday at 11:00 a.m. You can also just ask questions directly on Facebook Live, and we’ll try to answer those questions as they come in.
We will consult about issues relating to immigration, criminal law, a whole host of other issues: businesses, business law, trusts and estates. We’ll try to tackle whatever question you throw at us. But today, the conversation topic is generally family-based immigration petitions. Let’s take our hypothetical that we’ve been dealing with. The marriage context … Let’s talk about step-children. How does that work?

Ben Williams: It’s … Well, it’s immigration, so it’s slightly complicated. More complicated than it needs to be. Basically, as a general rule, you can petition for step-children. What immigration is going to look at is if you married the actual parent … If the step-parent relationship was created before the child turned 18, so that’s basically … If you marry after the child is 18, and they then become your step-child, you’re not able to petition for them as a step-parent.

Jacob Tingen: Right, because the relationship wasn’t formed while they were still a minor child. It’s kind of-

Ben Williams: Right.

Jacob Tingen: [inaudible 00:19:59].

Ben Williams: Yeah.

Jacob Tingen: Even though you can petition for someone until their 21st birthday, right?

Ben Williams: Right, yeah. If they’re unmarried and under 21, the actual biological parent could petition for them, but as a step-parent, you wouldn’t be able to.

Jacob Tingen: You’re kind of barred from that. It seems a little silly. But generally, you can petition for children, step-children, spouses, parents, brothers and sisters, and that kind of thing?

Ben Williams: Mm-hmm (affirmative).

Jacob Tingen: Let’s talk a little bit about … On Tingen & Williams, we provide a lot of web content. One of our most popular articles is about the immigration process, is What Happens at a Green Card Interview. Can you tell us a little bit about these green card interviews, and what kinds of questions come up, and why they would happen in the first place?

Ben Williams: Yeah, I would recommend also reading the articles that we posted about it because they go into a lot more depth that we can today. Basically, it’s kind of the typical immigration scenario that people picture. You sit down in an interview room with an immigration official, and they grill you. I don’t know if anyone’s seen The Proposal with Ryan Reynolds and Sandra Bullock-

Jacob Tingen: Sandra Bullock.

Ben Williams: Where they married for immigration purposes.

Jacob Tingen: Right.

Ben Williams: Again, that movie was a little extreme. They had the immigration official literally following them around and documenting their wedding-

Jacob Tingen: And that doesn’t happen.

Ben Williams: Right. The typical scenario is you file the I-130 Petition, and the application for a green card. Again, I said it was like six months to a year to get it approved, but part of that process is an interview before the green card will get approved. Usually what they do is interview each person separately, they’ll interview the US citizen, and they’ll interview their intended spouse. Really, any question is kind of fair game.
They’ll ask about your finances, they’ll ask about any children, they’ll ask about your financial arrangements, your living arrangements. Again, the level of questioning kind of varies with the suspicion they have. The suspicion they have kind of depends on how long you’ve been married, if you have kids, if you’re living together. It can be different for every circumstance, because it also depends on the actual person interviewing you. Some are just a little more harsh than others, and have different interview styles.
If they’re suspicious, if you were just married and there’re no kids, and you didn’t have much contact before you got married, if they think it might be just for immigration purposes … I mean, they’re going to ask everyone’s family history. They might ask you what color toothbrush your spouse uses, what hours they work, when they usually get home, what they like for dinner. I mean, they can ask anything they think to try and show that your marriage is valid.

Jacob Tingen: Sometimes we’ll have cases where they don’t even do the green card interview, right?

Ben Williams: Yeah.

Jacob Tingen: You might not even have one.

Ben Williams: Yeah, again, if say you’ve been married for maybe 10 years and you have three kids together, and then you decided to petition for your spouse … I mean, clearly, for immigration purposes, that marriage was not just for immigration. That’s actually … They fell in love, they had kids, they started a family, and now they want legal status. A case like that would probably just get approved and be a little more streamlined versus say if someone did come on a Visitor Visa, and two weeks into being here, they met someone new and got married the next day-

Jacob Tingen: Yeah. The Visa fraud red flags go up.

Ben Williams: Yeah, so the interview for them is going to be quite a bit different from the process of the people that have been married and have kids.

Jacob Tingen: There are two contexts in which somebody is going to have this kind of green card interview. One is the Consulate process, which is if the spouse is outside of the country, you do the application, and then they go to their local Consulate, come in and get interviewed versus if they’re in the United States, file for what’s called Adjustment of Status, then they have an interview with an actual USCIS officer, probably in a service center, if you have one at all, right?

Ben Williams: Yeah. Mm-hmm (affirmative).

Jacob Tingen: The difference in the interview … Typically, in the Consulate interviews, they’re going to assume … I mean, you’re applying for an Immigrant Visa, so there’s no Non-Immigrant Intent issue there where they kind of question why you came in the first place, because you’re applying for the Immigrant Visa, they know why you’re coming, it’s because you’re married to your spouse. The trickier interviews do tend to be the ones that are conducted here in the US.
Now, again, they don’t interview everybody in every case. It really just depends more on the kinds of cases that Ben was talking about, where people come in and then get married all of a sudden.

Ben Williams: We should also mention the process is a little different if you’re newly weds versus if you’ve been married for several years. If you petition for a spouse, and you guys have been married less than two years, you’ll get … If you get past the first round of interviews and get your green card approved, you’ll have what’s called Conditional Residency. In the normal case, you would get a 10 year green card, and in the case where you’re married to a citizen spouse, it would be like three years until you can apply for citizenship.
In the newly weds’ case, you would get Conditional Residency, and in two years when your green card is about to expire, you would have another interview to remove the conditions, basically to get a permanent 10 year green card. That’s, again, another interview where they’re going to make sure that for the last two years that you’ve been living together as husband and wife, they’re going to want to see shared finances, and a shared house, and kids are always helpful for immigration [crosstalk 00:26:21], too-

Jacob Tingen: Yeah, people don’t typically have kids just for immigration purposes-

Ben Williams: Yeah.

Jacob Tingen: So if you’ve got a child, that’s kind of the silver bullet on all of this legitimacy stuff.

Ben Williams: Yeah. So that’s just something to be aware of, if you’re newly weds versus if you’ve been married for a long period.

Jacob Tingen: Let’s talk about that, on removing the Conditional Residency. We’ll get clients in who will come to us and say, “Well, I was married. I had Conditional Residency. The marriage just was not working, and we split up.” Is there any hope for those people?

Ben Williams: There is. Again, in that case, I would always recommend speaking to an immigration attorney-

Jacob Tingen: Absolutely.

Ben Williams: But it can be complicated, but yes, it’s written into the laws in the USCIS policies. Basically, when you have the interview to remove conditions, say two years from when the petition was filed, you just need proof that it was a valid marriage when you entered into it.

Jacob Tingen: You have to [inaudible 00:27:19].

Ben Williams: So, it helps that once you were married, you guys were already living together, you had a shared bank account and stuff like that. Also, you can show that … I mean, they can look at the divorce records. That’s usually part of the application, to show that it was an actual divorce based on separation, and it was just a normal divorce process, not just you already lived in separate states, and you’re just getting divorced. Basically, you just have to show that at the time you entered into the marriage, that it was a valid marriage.

Jacob Tingen: Right, and we’ve had clients … I mean, I’ve had a client who had a child with this woman, they were married. Then, the marriage got so toxic, she even called immigration on him, at which point he had to move out. We were able to prove the marriage was legitimate, because they had children together.

Ben Williams: Mm-hmm (affirmative).

Jacob Tingen: That’s kind of an iron-clad argument, nobody is going to have children unless they’re actually committed to a relationship. We won that one, but yeah, some marriages can go really bad, it makes it very difficult for the immigrant to maintain status. Again, in those cases, like Ben said, talk to a lawyer.

Ben Williams: Yeah, and the same would go for if it happened … Your US citizen spouse even passed away during the two years of the Conditional Residency-

Jacob Tingen: Good point.

Ben Williams: That’s … Again, it’s the same basic idea. You just have to show that it was actually a valid marriage at the time you entered into it. So those kinds of things don’t ruin your case. There’s definitely ways to still get permanent residency, and citizenship eventually. It just takes a little extra preparation that you should be aware of.

Jacob Tingen: Let’s talk as a final note, again, this is Law Talk with Tingen & Williams. You can call us at 804-477-1720. We’re here every Wednesday at 11:00 a.m. We are ready to talk to you about immigration law, criminal law, business law, just about anything … Trademark law, trusts, wills and estates. We’ll tackle your legal questions, just give us a call.
As a final note on this topic, let’s talk about the kids of evidence you need to present. I mean, I always have people bring in photo books, and they’re like, “Do I need to send these photos in?” For me, that’s kind of my least favorite form of evidence, because anybody can stage photos, frankly.

Ben Williams: That’s true.

Jacob Tingen: However, what kinds of evidence do you need to submit? Not that photos are completely useless. We’ve submitted photos as evidence before, and sometimes clients insist on it. But I don’t need to submit 80 photos, and I can just submit a couple, along with a Marriage Certificate. What kinds of evidence do you look for to verify a marriage as legitimate?

Ben Williams: Yeah, that’s also on even the Form I-45 instructions. They have a list of evidence that you should submit. It’s kind of in descending order of importance. Basically, the kind of evidence you want is just anything you can think of to show that it’s a valid marriage. As we mentioned, the best piece of evidence are birth certificates of children you’ve had together, because again, how many people have kids to try to fake immigration purposes?
Then, I guess after kids it’s co-mingling of financial resources, so joint bank accounts. If you have life insurance policies in each other’s names as the beneficiary, if you have a shared lease or mortgage on a house is very good evidence. Really, just prove you’re living together, that you’re supporting one another-

Jacob Tingen: Car titles, right?

Ben Williams: Right, property together. Anything you guys share as a married couple is important. I guess, on the other side, a weak case would be if … I mean, if you didn’t even live together, that’s a giant red flag.

Jacob Tingen: Right.

Ben Williams: Again, if it’s for work or something, there’re ways to explain it, but if you have separate bank accounts-

Jacob Tingen: And separate houses.

Ben Williams: And separate houses, you definitely want to speak to an attorney because you’re going to need a lot of the other evidence. Again, if you don’t have the financial stuff, if you happen to not be living together, there are other ways, as Jacob is mentioning. You can use Affidavits from friends and family who’ve known you as a couple, or you could use pictures together. You can use text messages, Facebook messages. If it comes down to it, anything you can find that supports that you guys are actually in a relationship. You can always try, and use that.

Jacob Tingen: Okay. Cool. Well, thank you again for being with us today, Ben.

Ben Williams: Absolutely.

Jacob Tingen: This is Law Talk with Tingen & Williams. Again, you can call us every Wednesday at 11:00 a.m. You can also listen to our podcast available on iTunes. That’s it for today. Thank you for listening in.

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