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Family Immigration Issue, Part Two: U.S. citizen children, Expanded I-601A Provisional Waivers, Affidavits of Support, Increase in Immigration Fees, Amanecer Community Counseling
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IMMIGRATION UPDATE
A newsletter from Hill & Piibe about U.S. immigration law and procedures

FAMILY IMMIGRATION ISSUE
(Part Two)

September/October 2016

In This Issue:

Can My U.S. Citizen Child Help Me?

   This is one of the most common questions that we see.  And here are the situations when your U.S. citizen child can help you get a green card (lawful permanent residency):

Your child is 21 years or older
   Your child cannot file a family petition for your green card until s/he is 21 years old.  Once that petition is approved, then U.S. immigration officials will schedule an interview with you, to inspect your criminal and immigration record.  
   If you are already outside the U.S., then you must have that interview at a U.S. consulate in your home country.  But if you are already inside the U.S., then you might have to leave the U.S. to get your case approved. 
To see if you qualify to get your green card inside the U.S., see our article in the June/July 2016 issue [link].  If you do not qualify to get your green card  in the U.S., then you must return to your home country and have the green card interview at a U.S. consulate. 
   However, people who have lived in the U.S. without immigration permission (called unlawful presence)  will have a black mark on their immigration records, and departing the U.S. could prevent you from returning to the U.S. for up to ten years or longer.  Those already in the U.S. should investigate whether they qualify for an I-601A Provisional Waiver [link to below article], because departing the U.S. without one could bar you from returning—even with a green card—for ten years or longer.  Additionally, people who have repeatedly departed and re-entered the U.S. without permission may not qualify for a green card through a family member.  However, they may qualify for other programs that can lead to legalization. Cases with unlawful presence are very complex, and you should always consult with an experienced immigration attorney before starting the legalization process.

Your child suffers from a grave or serious physical or mental condition (“Cancellation of Removal or a ten-year case”)
   In this unfortunate situation, your child’s condition could qualify you for a green card, but only if you place yourself in deportation/removal proceedings.  Additionally, if you do not win your case, then you could be removed from the country.  You also risk having the laws change while you fight your court case, and leaving you with no chance to get a green card at all. 
   If you are in deportation/removal proceedings, then you may be able to apply for Cancellation of Removal.  Cancellation requires you to be in the United States for at least ten years before receiving the notice to appear in Court.  It also requires a clean criminal record, and you must show you are a good person.  Finally, you must establish that your U.S. citizen child would suffer “exceptional and extremely unusual hardship” if you are required to leave the U.S. This means hardship far beyond anything that the average child would suffer, and in this law firm’s experience, the Immigration Judges will only grant the green card in cases where there is a risk of death, or where there is absolutely no treatment available.   Cancellation cases and removal proceedings are complex, and you should consult with an experienced immigration attorney.

Other than Cancellation of Removal, there is no other visa, amnesty, pardon, parole, path or program to get an immigration benefit through your ill child, if you are in the U.S. unlawfully
   Despite what you may hear, there is no other way to plead to the government about hardship to your U.S. citizen child.  If your child is ill or suffers from a disability, it will not protect you if the government tries to detain you, and you cannot apply for any special permission to remain inside the U.S. and care for your child.  Cancellation of Removal is the only available path under current laws.

If your child is a victim of a violent crime, or domestic abuse
   In this situation, you may be eligible for a U-visa which protects parents of children who are a victim of a violent crime or a victim of domestic abuse.  But the law does not require your child to be a U.S. citizen.  If your child has been a victim, you should confer with an experienced immigration attorney to verify whether anything can be done for your immigration status (and for your child’s immigration status if s/he is not a citizen or lawful resident). 

AMANECER  Hill & Piibe is pleased to endorse and support Amanecer Community Counseling Services.  Amanecer’s mission is to provide culturally competent, accessible, high-quality mental health care for the diverse and underserved adults, children and families of Los Angeles who suffer from mental illness or severe emotional problems. As a community-based nonprofit organization, the agency provides a wide range of personalized, bilingual/bicultural, behavioral health care and intervention services at no cost to those in need. Many of Amanecer’s client are survivors of domestic violence and, most recently, the many children who have fled the violence-plagued  Central American countries.  Amanecer serves a critical role in transitioning these survivors back into society.  For most clients, Amanecer is the only link to vital mental health services and other social service resources.  Partner Alary E. Piibe is proud to be a member of the Amanecer Board of Directors.  Explore their website and see their programs: https://amanecerla.org 

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  IMMIGRATION FEES WILL BE RAISED OVER 20%
It is greatly anticipated that effective October 1, 2016 immigration fees will be increasing an average of over 20%. The Department of Homeland Security has justified this increase by arguing that 94% of the Service's annual budget comes from application fees and those fees have not been raised since 2010. What this means for hardworking immigrants is that the cost to renew a Green Card will be increasing 25%, and the cost of naturalization will be increasing 8%. 
Here are some popular applications, comparing the old and new rates:
Naturalization N-400:      currently $595      new $640
Replacement Green Card I-90: currently $365     new $455
Work Permit I-765: currently $380    new $410 
More information: https://www.uscis.gov/…/federal-register-comment-period-pro… 
Those thinking of taking advantage of the old lower rates should apply as soon as possible.
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I-601A PROVISIONAL WAIVERS ARE EXPANDED TO COVER MORE IMMIGRANTS!


   Effective August 29, 2016 the 601A Provisional Waiver is expanded to cover many more immigrants!  In our last issue, we covered this type of waiver [link to article] but now it has been expanded to include more immigrant categories, more relatives for hardship, and you can apply even if you have a criminal record or problems in your immigration record.  This waiver is a great convenience and it eliminates the need to spend lengthy time outside the United States.  As explained in the last issue [same link to article], it is for people who must return to their home country to pick up a green card, and it waives the 3- and 10-year bars for unlawful presence in the U.S.  This means that once the waiver is granted, the applicant is gone from the U.S. for only a few weeks, eliminating lengthy separation from family and work in the U.S.
   Similar to the original 601A Provisional Waiver, applicants apply while still inside the U.S., once a green card petition has been approved and is current and ready to use.  Applicants now can show hardship to an expanded category of potential relatives: a spouse or a parent who is a U.S. citizen or a Lawful Permanent Resident.  Under the old rule, only citizen spouses or parents would qualify for the hardship showing.
   Expansion of the 601A Provisional Waiver makes it available for any family category, any employment category, or the Diversity Lottery.  Before, it was only available to immediate relatives (spouse, child or parent of U.S. citizens). 
   And now it is available despite the presence of a criminal record or a deportation/removal record.  Before the expansion, applicants had to have a clean record with no arrests/convictions and no contact with deportation/removal.  Now, some applicants with deportation or removal orders on their record can apply, but they will have to obtain a separate I-212 waiver first.  The I-212 waiver “forgives” that prior deportation/removal if the applicant is still in the U.S. and never left.  For those who did leave the U.S. and then returned without permission, they likely will not qualify.  Obtaining the I-212 waiver does lengthen the application process, but at least now there is some light at the end of the tunnel. 
   For those still in deportation/removal proceedings, they must first obtain administrative closure before filing for the I-601A Provisional Waiver.  This also lengthens the process while you wait for the government attorney and the Immigration Judge to agree to administrative closure.
   Because the 601A Provisional Waiver process is streamlined, and because you may still encounter admissibility issues when getting the green card, you should confer with an experienced attorney to make sure you qualify and that you are aware of all potential issues in your case.  The I-601A Provisional Waiver does not waive or forgive all issues in a case, and must be used carefully.
   You may schedule a free assessment appointment with Hill & Piibe if you would like to know whether the I-601A Provisional Waiver could  help you or a family member.

 



AFFIDAVITS OF SUPPORT (FORM I-864) FOR YOUR RELATIVE


   An Affidavit of Support (I-864) is a document that must be filed with the Immigration Service when sponsoring relatives for a green card.  For example, it is filed when a U.S. citizen marries and wishes for the new spouse to be a green card holder. The purpose of the Affidavit is to make sure the sponsor has enough money to support the new immigrant(s), to prevent the new immigrant(s) from becoming a “public charge” - someone who needs government support to survive in the U.S.  
 
   But many don’t realize that the Affidavit of Support is also a contract with the U.S. government and that it is enforceable by a court.  By signing the Affidavit, the sponsor is promising to provide sufficient financial support to keep the sponsor’s own family plus any new sponsored immigrant(s) at 125% above the poverty guidelines. For a family of four, 125% of the poverty guideline currently is $30,375 per year, and the sponsor must prove s/he earns at least $30,375.  The sponsor must submit proof of income, such as the most recent tax return and/or paystubs.  Property, stock, and other bank accounts/valuables can substitute at 1/5 of their value to meet the 125% poverty guideline.  In some cases, the sponsor can use the income/property of the sponsored immigrant, and/or a household member, and/or the sponsor’s spouse to meet the 125% poverty guideline.  If the sponsor does not earn 125% above the poverty guidelines, then a co-sponsor can also sign an additional Affidavit of Support if the co-sponsor earns at least the minimum amount of income.
 
Divorce does not terminate the Affidavit 
   The sponsor (and any co-sponsor) is obligated under this Affidavit contract for ten years, or until the sponsored relative has worked ten years in the United States, or until the relative becomes a U.S. citizen: whichever comes first.  If the sponsor immigrated a spouse, the Affidavit remains in effect even if the sponsor later divorces. 
 
   On June 8, 2016, in Erler v. Erler, the federal Ninth Circuit Court of Appeals confirmed that the Affidavit is still in effect even after a divorce, and also the sponsor must supplement the  immigrants’ incomes so that they are at or above 125% Poverty Guideline.  For example, if a U.S. citizen sponsored her husband and his two children, then the citizen must supplement the income of the divorced husband and his two children until it meets 125% of the Poverty Guidelines for a household of three people, even if they all are being supported by someone else.  This decision only covers the jurisdiction of the Ninth Circuit, but it is a reminder to everyone how important the Affidavit of Support is and how the obligations under the I-864 can be long-lasting.  As always, you should consult with an experienced immigration attorney about the obligations that come with the Affidavit.
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