Legalization of overstays from visa waiver program countries

The way Obama Administration exploited loopholes in US law to create DACA, stop deportation of family members of certain immigrants in the country illegally, and give legal status to family members of US servicemembers, yet another new provision allows all those aliens who came to the United States from a country that participates in the visa waiver program to adjust their status as long as they are immediate family members of a US citizen.

What does this new policy do?  You see if you are a citizen of a VWP country, you can enter the United States without a visa but such entry comes with many conditions, like the length of time you can stay and your inability to extend your stay or adjust status to another category (privileges that are available to aliens who enter with a valid visa).  In fact, ICE can deport such individuals without even an immigration hearing, a privilege that is generally available even to illegal immigrants.

How to adjust status based on this policy change?  This new policy is very limited in its applicability.  In other words, you need to discuss this with an immigration attorney who will advise you whether you are eligible.  The good news is that if you are an immediate relative (related by marriage or birth) of an American citizen, have not committed any serious crimes, and are not yet in deportation proceedings, you are very likely to be approved.  The paperwork is surprising simple and among other forms would require USCIS Form I-130 and I485.

Will eVerify catch someone else's SSN?

It is very common among undocumented immigrants to use stolen Social Security numbers that they buy from criminals.  It is also somewhat common for many immigrants to use the details of a legal family member or friend.  Needless to add, the largest SS# are simply numbers that don't seem to belong to anyone and are randomly generated by criminals who are in the business of printing fraudulent Social Security cards for a price.  While many undocumented aliens do not realize that they are breaking any laws by doing so or hurting anyone else, the reality is that not only many laws are being broken, in some cases, real financial harm is being done to legal residents, particularly children (criminals target children when committing identity theft).  Many victims are then unable to find a job or use banking/credit services because of the suspicious activity on their number.

In order to discourage identity theft and abuse of SSN, the USCIS will make it harder for you to find work by using someone else's SSN (it already is impossible to get an eVerify approval with a fake number).  Going forward, the algorithm of eVerify will be able to detect if a person is using another person's totally valid number.  If your employer finds that out (for undocumented aliens the safe assumption to make is that the employer is using eVerify despite widespread reports that many employers do not), it will be clear to them that you are breaking the law and will most likely result in withdrawal of the job offer.  It is also likely that law enforcement may be alerted as a potential case of identity theft.

What to do if you are a valid owner of that Social Security number?  If that happens to you, in many ways it is good because you now know that your number has been compromised.  You will essentially be given a “Tentative Nonconfirmation” (TNC) by your employer and while it will require a trip to the local Social Security office (not a fun thing to do for anyone of us due to the lines and bored bureaucrats who work there), you will be able to get an approval after providing evidence of your legal status, which for a citizen can be a birth certificate or naturalization certificate or passport and for permanent residents and legal residents it can be their passport and an evidence of a visa or approval of some kind from the USCIS.  At that point, the USCIS and SSA will be alerted that other unauthorized users have been using your number and you will be protected from identity theft.

US tourist visa if I lived illegally

Pedro writes, "I came to the United States as a child over 20 years ago with my parents on a valid visa but never left.  Since then I have lived here, gone to college, but now that my life is going by and I see no hope for legalizing my status, I do not want to waste my life working illegally in Mexican restaurants washing dishes.  In my native country, I have been offered an executive job due to my excellent education and bilingual skills and I have decided to take that position because that way I no longer have to live in fear as an undocumented immigrant, I can travel the world, and have a family.  I will also use my American education in my job.  But before I leave, I want to know what will happen at the airport?  Will ICE harass me?  Will they stamp my passport with a 10-year ban?  Will I be fingerprinted?  I have no criminal record of any kind and have never interacted with US law enforcement of any kind.  Will I be able to visit the United States as a visitor later on?

What to expect at the airport if an undocumented immigrant is returning to one's native country?  While the United States law enforcement does have the authority to detain and arrest anyone who is in the country illegally at any place (and it is common for Border Police to detain undocumented immigrants leaving the US for Mexico to make sure they leave after fingerprinting them because that means they will not be able to return legally for ten years), unless something goes terribly wrong, you will be able to leave without any interaction with law enforcement.  You should have a valid passport if you are returning to your native country and a visa (if needed) if you are traveling to another country.  You will only interact with airline staff (though you can minimize that interaction by doing most of the paperwork at the airline website and at the kiosk in the terminal, though, someone will check your passport at least twice, at the time of dropping off your bags and then before boarding the international leg of your flight).  In rare cases, the airline agent might question you about a US visa, but you can simply tell them that your passport is new or you lost some documents and at that point they will figure out that you are illegally in the US and leave you alone (there really is no system to do anything).  The TSA agents will merely check your passport and boarding pass and it is unlikely that anything else will happen.

What to expect when you apply for a visa to visit the US?  If you have ever lived or traveled to the United States, you must honestly answer this question in the tourist visa application.  Additional questions maybe asked if there is a visa interview at the US embassy/consulate.  The State Department has other ways to find out if you ever lived in the US because it has access to many databases.  Chances are your name will pop up somewhere if you went to school/college, worked, paid taxes, applied for a driver's license, etc.  That means that even if you apply for the visa after 10 years, the embassy might deny the visa since you will be considered high risk and more likely to overstay.  However, if you build a good life in your native country, have evidence to prove your strong ties like employment, property, family, etc., you might be able to receive a tourist visa.

How to apply for visa for family of Military servicemen?

Like the Deferred Action for Childhood Arrivals (DACA) program for young immigrants who arrived illegally as children, the Obama Administration has launched a similar program for spouses (both heterosexual as well as same sex), children, and parents of active duty members of armed forces, reservists, and military veterans.

So what does this program do?  Basically, if you are in the United States undocumented, you get to legalize your status in form of a parole-in-place.  This will be for one year at a time but can be renewed indefinitely.  With this parole, you will get a work permit, your very own Social Security number, and will now be able to apply for adjustment of status to permanent residence or green card.

How much will this cost?  Nothing.  Free.  Simply because this is the least the country can do to thank those who are willing to put their lives on the line.

How does this help you?  If you simply overstayed a visa, adjustment of status has been easier for family members of US citizens.  However, if you entered without inspection (EWI) meaning that you simply crossed the border illegally, the process requires leaving the United States, even if you have a waiver through the USCIS Form I601A.  By getting this parole, the green card process can be completed without leaving the United States.

What will the USCIS investigate?  Like any other immigration application, the USCIS will conduct a background check on each applicant.   Generally, a felony convictions will lead to rejection of application but up to three misdemeanors may not matter that much.  If you have any criminal background, do not even think about applying on your own, because not only will your application be rejected, you will be put in deportation proceedings.

How to apply? 
  1. Unless money is extremely tight, don't try the DIY approach.  Get a decent attorney (no need for a top lawyer because the paperwork is simple and any immigration attorney should know how to complete the forms).
  2. Put together a package containing USCIS Form I-131, copy of the evidence of relationship with the serviceman or woman (e.g. marriage/birth certificates), copy of both sides of the service member's military ID card, and two passport style photographs.  Mail these to the Director of USCIS office depending on the state you live in.  Wait for a few months and you will get the parole approval.  You can then start the green card process.

Can E2 visa be based on financing from credit cards?

Andrew and his wife are considering relocating to the United States using the E-2 visa that is available only to citizens of countries with which United States has a treaty.  The couple plan to run a low-investment business -- a design firm -- and while they have savings to finance about two thirds of the business, they plan to borrow the rest.  Can they get the visa?

While having a solid financial situation is always helpful, it is not a requirement.  If an applicant not only has all the money to needed to operate a business and has assets on top of that, the visa is much more likely to be approved, the US Consulate may still approve Andrew's petition considering that the investment is small and the risk is low if the business fails.  It is possible to finance the business by using credit cards, for instance, by borrowing the money on the credit card and having it available to transfer to the United States.  Unfortunately, it is a very expensive way of getting cash because the interest rates on cash advances are extremely high.  Andrew may want to borrow the money from family and friends or wait a few more months to save.  It is important to remember that if the Consulate suspects that your financial situation is not as sound as they like, you maybe denied.

Does it matter if the green card sponsor has criminal record?

For a family based permanent resident petition it does not matter that you have committed a crime in the past or even served time in a jail.  If you did your part by either paying a fine or going to jail or being under probation or whatever punishment the judge gave you, right now you are free to pursue your own life.  You can get married to an overseas citizen or sponsor other family members as allowed by law.  If you are eligible in all other respects like any other citizen, do the proper paperwork, there is nothing to fear.  Just remember that the USCIS is always trying to detect if an immigration petition is fraudulent and it might look more carefully in your application just to make sure that you are not planning to break the law yet once again, but nothing bars you fro moving on with your life.

Impact on immigration petition if American spouse owes money to IRS

Annie writes, "I have excellent credit score and my American boyfriend has proposed to me.  We are discussing plans for wedding, but he has not been meticulous about his taxes and owes money to the Internal Revenue Service.  If we do get married, will this tax matter affect the marriage based green card petition?  Can I file my taxes separately from him till his tax matter is resolved?  Am I required to file taxes jointly to get my permanent residency approved?  Will that affect my excellent credit score then?  Please help."

  1. If you need a green card based on marriage soon enough, she will first need to first get clear with the IRS.  The USCIS does not approve petitions when taxes are due to the IRS.  In fact, you may want to delay filing a green card petition till the tax issues are resolved.  She will need to hire a tax attorney so that she makes IRS happy and that does not always mean that she has to pay all her taxes right away if the amount is very large.  As long as she completes the paperwork and agrees to pay the IRS over a period of time, she would be fine with USCIS.
  2. Indeed, if you still get married, make sure that you file taxes separately, though, this will raise questions during the green card interview and you will need to explain the whole background, but as long as there is an arrangement worked out with the IRS, it should not matter as much.
  3. Credit score is an entirely separate matter, but if your wife has low score, you both should not borrow anything together until she is totally in the clear with all her debts.  In any case, if she is a financially irresponsible person, you two should never have a joint credit account because she could revert to her old ways later on and then destroy your credit score.  It is important to point out that merely owing taxes to the IRS does not lower credit score unless a lien is placed by the Feds.  It is likely that she also has not been paying her bills on time to other creditors.

Green card with only civil wedding

Arturo writes, "I am legally in the United States and after dating a wonderful woman, we decided to get married in Las Vegas.  The reason we chose a Vegas wedding was that the paperwork required was minimal (appear in an office and with just some paperwork, walk out married, while in my town the couple needs blood work) and it seemed much more exciting to fly there, stay in a luxurious hotel, and after the wedding, eat at a fine restaurant to celebrate.  We also thought that it was our honeymoon and had an awesome time, but because she is a naturalized citizen herself and neither one of us has family in the United States, we never really had a religious ceremony with friends and family.  We have been married for several years now and because my H1 visa is nearing expiration, I want to get the ball rolling on a marriage based green card.  We seem to have everything in order but there really is no record of a traditional wedding.  Would that be a problem during the interview?"

In the eyes of the law, a civil wedding has as much weight as a church wedding.  And when it comes to sham weddings, I am sure that the USCIS agents have seen it all, including couples exchanging vows before God while being fully aware that they were committing fraud.  So it really does not matter that you did not have a religious wedding ceremony as long as your marriage is genuine (in fact, I would not be surprised that people who commit immigration fraud are more likely to have traditional weddings just to make their case appear more genuine).  You should be truthful about your story and present evidence of your relationship like your pictures from Las Vegas or other things that you two have done together.  If you have visited each others families, those photos can also be helpful in showing that you do have a real marriage.  In addition, you will need documents like joint bank accounts, mortgages/leases, etc. to prove that you are like any other married couple.  And like any other couple who is interviewed for a marriage based permanent resident status, be prepared to be grilled together and separately.  If you ace those interviews and have your evidence lined up, it does not matter if you exchanged your vows in front of a Nevada bureaucrat or a priest.

Can I have two visas to USA at the same time?

Well, what happens is that you have a 10-year B1/B2 visa and then you decide to come to the United States as a student on a F1 visa or get a job offer on H1 visa.  In some cases, the consulate may cancel your other visa by making a note in the passport or by notifying you officially by mail.  However, it may leave it alone as well.  So during the validity of F or H visa, you will be admitted using them, and you need to make sure that it happens when you meet with the immigration agent so that you have enough time to stay and it is in compliance with the terms of your visa (e.g. if you are admitted under the visitor visa, you will be unable to work, even though you have a work authorization under the H visa).

If you never overstay a visa, when one visa expires, you are free to use your tourist visa to visit the United States.  If for some reason your tourist visa was cancelled and you now want to visit the US again, as long as nothing else has changed dramatically in your life, you should have no trouble receiving a new visitor visa.