Could you and your spouse pass an immigration interview?

What time is it?
Photo credit @Matt Metz on flickr.
Used under creative commons license

How well do you know your spouse? Buzzfeed has compiled a list of possible questions that an immigration officer might ask at an interview for marriage-based green card applicants.

Please note that this is not an exhaustive list, and it won't tell you whether or not you are actually eligible for a green card. Buzzfeed says: "The following are potential questions that could be asked, culled from newspaper articles, immigration lawyers, and testimonials. So, you know, don’t treat this an official preparation of any kind because there are a lot of different factors that go into that interview." 

Although it's not official, it's still fun. To take the quiz, click here.

And if you have any questions about family-based immigration, please contact us to see if we can help!

I'll stay... as long as you love me

For singer Justin Bieber, things are getting worse. He turned himself in to authorities in Toronto, Canada, this week on charges of assaulting a limousine driver. And over 100,000 people have signed a petition to the White House, asking that Bieber be deported. How could these two events impact Justin's future immigration status in the United States?

Don't make him fade away.
Photo used under Creative Commons license from @ilovejb123 on Flickr.

If it turns out that Justin is convicted of crimes in any country, and he decides to apply for a green card, he will have to explain his criminal record. Applicants for certain types of immigration benefits, such as asylum or a green card, must disclose any prior criminal convictions. This is true whether the crime occurred in the U.S. or in any other country. If a person doesn't disclose his or her criminal record, it is likely that the government may still find out. Prior criminal convictions won't necessarily prevent someone from getting approved for immigration benefits, but it is important to talk with an attorney before applying to be aware of any risks. The list of crimes that can impact someone's immigration status is very complicated, and an experienced attorney can help determine whether someone's record will cause problems.

Could the White House petition result in Justin's deportation? It's very unlikely, because Justin's crimes likely aren't serious enough to qualify him for deportation. He also has many fans in the U.S. who would like him to stay! Having broad support from your community can be important in certain immigration settings. Under certain circumstances, the law allows the government to exercise discretion, and decide whether a person should be allowed to stay in the United States despite some mishap. Again, it is important to talk to an attorney before requesting prosecutorial discretion. An attorney can help you figure out whether your circumstances would qualify you to apply, and whether you would have a good chance of success.

Immigration Relief for Military Families

Photo credit Official U.S. Navy Imagery on Flickr.

Under a new policy released last week, the spouses, children, and parents of active military troops and veterans are now eligible to apply for legal immigration status.

Spouses and relatives of citizens and green card holders could apply for status. But under existing law, undocumented immigrants have to leave the country while their status is pending, sometimes for years at a time. This new policy means that relatives of troops and veterans can apply from within the country under a status known as "parole in place."

Changes to immigration laws have not yet been realized. The Senate passed an immigration reform bill earlier this year, but the House seems unlikely to take action on it. Some have speculated that, because of the lack of Congressional action, President Obama will attempt to reform immigration through smaller policy changes such as this.

For more information, please see this New York Times article and this Associated Press article. 

Department of State Issues Guidance for Consular Posts after Windsor Decision

The Department of State recently issued guidance to its consular posts (U.S. consulates and embassies) following the Supreme Court’s decision in Windsor striking down section 3 of the Defense of Marriage Act (DOMA).  The following is a list of highlights from the guideline:

·         Visa applications filed by a same-sex spouse will be reviewed in the same manner as those filed by an opposite-sex spouse. 

·         A same-sex marriage is now valid for immigration purposes as long as the marriage is recognized in the “place of celebration.”  The same-sex marriage is valid even if the couple resides in a state that does not recognize same-sex marriage. 

·         The same-sex marriage is valid even if the applicant is applying in a country in which same-sex marriage is illegal.

·         Same-sex spouses and their children are now equally eligible for non-immigrant visa (NIV) derivative visas. 

·         A spouse of a U.S. Citizen or Lawful Permanent Resident may apply for an immigrant visa (so long as the priority date is current) after USCIS approves the I-130.  The place of celebration will determine whether the marriage is legally valid, not the applicants’ place of domicile.

·         Fiancé(e) visas are now available for same-sex partners of U.S. Citizens.

·         Diversity Visa applicants (green-card lottery) may now include same-sex spouses in their initial entry or add a spouse acquired after the initial registration.  For DV 2013 and DV 2014, same-sex couples will not be automatically disqualified for not including their same-sex spouse on their original entry.

Interestingly, the Department of State guidance asks consular sections to identify what types of marriage are available for same-sex couples in-country and update the reciprocity tables, pursuant to 9 FAM 41.105.  This leaves open the question of whether civil unions or other forms of legally recognized same-sex partnerships will be recognized as “marriage” for immigration purposes.  We will keep you posted on this.

The Department of State guidance can be found here and more user-friendly FAQs here.

The right (not to) bear arms

Did you know that when someone applies to be a citizen of the United States, he or she must take an oath to bear arms in defense of the country?

Margaret Doughty, a longtime permanent resident of the U.S., recently risked her chance at U.S. citizenship by objecting to the oath. Ms. Doughty is an atheist who has a moral opposition to war. When she wrote on her application for naturalization that she did not want to take the oath, USCIS responded by asking her to prove it by submitting a note on church stationery stating that she was "a member in good standing" of a nonviolent religious organization.

Ms. Doughty, as an atheist, did not want to join a church just to get citizenship. Instead, she explained her rationale this way:

“I am sure the law would never require a 64 year-old woman like myself to bear arms, but if I am required to answer this question, I cannot lie. I must be honest. The truth is that I would not be willing to bear arms. Since my youth I have had a firm, fixed and sincere objection to participation in war in any form or in the bearing of arms. I deeply and sincerely believe that it is not moral or ethical to take another person’s life, and my lifelong spiritual/religious beliefs impose on me a duty of conscience not to contribute to warfare by taking up arms ... my beliefs are as strong and deeply held as those who possess traditional religious beliefs and who believe in God ... I want to make clear, however, that I am willing to perform work of national importance under civilian direction or to perform noncombatant service in the Armed Forces of the United States if and when required by the law to do so.”

After much media attention and letters from organizations such as the American Humanist Association and Freedom From Religion Foundation, USCIS backed down and allowed Ms. Doughty's objection to stand. Her naturalization ceremony is scheduled for later this week.

Bruins Goalie Tuukka Rask Has “Extraordinary Skills"

The Bruins dominated Game 3 of the Stanley Cup Finals last night!  Goalie Tuukka Rask had an amazing game, stopping all 28 shots for his third shutout of the postseason.

 

My admiration of the Bruins goalie got me thinking about his immigration status (pretty geeky, I admit).  Tuukka Rask hails from Finland, a far off Nordic country that is cold and dark in the winter and light all day long in the summer.  According to his Wikipedia page, he started playing in a youth league in his home town of Savonlinna, Finland.  He then progressed to Ilves, Jr., a Finnish Junior League.  In 2005, he was drafted by the Tronto Maple Leafs, then traded to the Bruins.  Tuukka spent most of his time with the Providence Bruins, quietly making a name for himself.  Rask’s big break came when he was named as the starting goalie for the Bruins before the 2012-2013 season lockout, replacing Tim Thomas. 

When a foreign player is drafted under contract with an NHL franchise, the player applies for a P-1A visa, which is a temporary work visa.  P-1A visa may be issued for up to 5 years initially and permits NHL players to be traded between NHL teams generally without interrupting the player’s ability to play.  It also allows the professional hockey player to travel in and out of the country with the team as required.

P-1 visas are generally dependent upon the player being actively on the ice.  So if the player is no longer playing, the P-1A visa will be invalidated, meaning the player falls “out of status,” and would normally have to leave the United States.  In order to prevent this from happening, many NHL players and franchises initiate the Permanent Residence (aka “Green Card”) process for players on the active roster who wish to make the United States their permanent home after their playing days are over.  For most foreign-born professional athletes, this means obtaining a green card through the employment-based preference category called EB-1, which is a category set aside by the United States Citizenship and Immigration Services (“USCIS”) for “extraordinary ability” workers in the sciences, arts, education, business or…you guessed it…athletics.

To qualify, the athlete must be able to prove that during his career, he has been able to demonstrate sustained national or international acclaim and achievements that are recognized in the field.  Simply playing in the NHL does not satisfy the USCIS regulatory requirement for “extraordinary ability.”  Instead, the player must prove that he is “elite” in comparison to his peers in professional hockey.  The most obvious way for the player to do this is to receive a major internationally recognized award, such as being named an NHL All-Star, winning an Olympic medal, or being on the Stanley Cup-winning Team. 

So, while winning the Stanley Cup finals would be a tremendous career high for Tuukka, it would also increase his chances of getting permanent residence in the U.S.  Something to think about that when you’re cheering for the Bruins during the finals.

Possibility of Second Chances for Deportees

Legislators are considering adding a provision to the immigration reform bill that would offer a new opportunity for previously deported people to return to the United States. To qualify, deportees would need to have a child, parent, or spouse with legal permanent resident status or U.S. citizenship, and be free of serious criminal convictions. This group would possibly also include people who first arrived in the U.S. before age 16.

This provision is highly controversial, and some people believe it would give an unfair second chance to people who already broke immigration laws. Others feel it is necessary to enable families to be reunited. Conservative lawmakers are still insisting that border security must be the first priority, and granting paths to citizenship should be conditional on achieving certain targets of border security. However, the bill is far from done; senators have filed at least three hundred potential changes, according to the Washington Post.

One of those possible changes would allow U.S. citizens to petition for their same-sex spouses to get green cards. This would allow same-sex couples to have equivalent ability to petition for their spouses as opposite-sex couples have, regardless of what happens with the Supreme Court decision on DOMA.

Lawyers at Glickman Turley LLP are closely following the immigration bill, and we look forward to advising immigrants of their options under the new law.

DOMA Ruling and Green Cards for Same-Sex Couples

The Supreme Court heard arguments today challenging the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman.  The case, called United States v. Windsor, challenged whether Congress can pass laws that treat married same-sex couples differently than opposite-sex couples. Ordinarily, it is up to the states to decide who it will allow to marry and how.  In the arguments today, even Justice Kennedy (typically regarded as the swing vote) expressed concern that DOMA was stepping on states’ powers.

While the case doesn’t address the constitutionality of gay marriage itself, a ruling in favor of DOMA's opponents could have a significant impact on federal benefits available to gay couples, including the right to remain in the country through a green card.  Under current immigration law, heterosexual married couples may sponsor their immigrant spouse to get a green card.  DOMA prevents same-sex married couples from doing the same, even though they were legally married in a state that recognizes gay marriage. 

Although the current administration opposes DOMA on the grounds that it violates the equal protection clause of the Constitution, there still are no concrete protections in place for same-sex couples.  Last fall, the Department of Homeland Security Secretary Janet Napolitano announced that the department would recognize gay spouses as being the same as heterosexual spouses when deciding whether to deport someone.   But this did not go far enough.  Many same-sex couples remain in limbo, unable to travel or visit family if undocumented, or maintaining a life and relationship on time-limited tourist visas.

If the Supreme Court finds DOMA unconstitutional, it is likely that same-sex married couples will be immediately able to petition for all federal benefits, including immigration status.  For more information, check out this New York Times article and links to a transcript and recording of the oral arguments here.