Monthly Archives: October 2014

USCIS Expands Definition of Mother and Parent under the Immigration and Nationality Act

In October 2014, the USCIS implemented a new policy that essentially expanded the definition of “mother” and “parent” under the Immigration and Nationality Act (INA). The term “mother” or “parent” now includes anybody who: “Gave birth to the child, and was the child’s legal mother at the time of birth under the law of the relevant jurisdiction.”

The USCIS provided an example of a woman who conceived through an egg donor being eligible to petition that child for U.S. citizenship or residency by virtue of that relationship. Basically, any woman who gives birth despite the absence of a genetic relationship to the child (i.e., share no DNA) can still petition that child for citizenship or residency.

This policy change opens the doors to many issues including the possibility of “selling” U.S. citizenship. For example, a U.S. citizen woman can act as a surrogate mother by carrying the fertilized egg of a Chinese couple. Once born, the baby would be entitled to U.S. citizenship or residency through the U.S. citizen who gave birth to him.

Checklist of Things to Do After Getting A Green Card

Apply for a Social Security Number

If you were previously on a work visa or issued Employment Authorization, you may have already been assigned a Social Security Number (SSN). If not, go to http://www.ssa.gov/ssnumber/ and order a Social Security Card. This nine-digit number will serve many purposes, including the ability to work, open a bank account, apply for credit or loans, obtain insurance, or pay taxes.

Open a Bank Account

Many U.S. banks do not allow individuals without a green card or SSN to open a bank account. If you have not be able to open an account before, you should do so right away.

Apply for a Credit Card

America is built on credit. Without a green card or a SSN, it is difficult to apply for a U.S. credit card because creditors want to see that you have a solid credit history. U.S. creditors determine your creditworthiness based on your FICO score, which in turn is based on the credit scores from the three major credit reporting agencies: Equifax, Experian and TransUnion. Build a good credit history is the key to improving your credit score – which will benefit you in many ways down the road. This includes the ability to qualify for a mortgage, line of credit, renting an apartment, and even a cell phone plan.

Apply for a State Driver’s License

Depending on your state’s laws, you may have to register your vehicle and apply for a driver’s license within a certain period of time of establishing residency. Contact your state’s Department of Motor Vehicles (DMV) about applying for a driver’s license. A list of links to all 50 states’ DMV websites can be found at: http://www.dmv-department-of-motor-vehicles.com.

Get Health Insurance

Under the Affordable Care Act, also dubbed “ObamaCare,” you will be required to have health insurance, subject to a possible monetary penalty. If you are working for a U.S. employer that provides health coverage, or if you are a spouse of someone who has coverage, then you may not need coverage. If you do not have coverage, you should start doing research into purchasing a health plan at https://www.healthcare.gov.

Pay Your Taxes!

Now that you are a permanent resident, you are required to report all worldwide income to the IRS. You may also have to file income taxes with your state of residency.

Petitioner’s Obligations When Sponsoring a Beneficiary for a Green Card

When sponsoring an immediate relative – such as a spouse, parent, child or sibling – for U.S. permanent residency, the U.S. citizen or permanent resident sponsor must prove that he/she has the financial ability to support the relative if the green card is approved. This is usually done by having the petitioner submit federal tax returns, W-2 forms, or 1099 forms for the previous three years, as well as recent pay stubs.

If the petitioner does not meet the income requirement necessary to sponsor the relative, a joint sponsor who does meet the income requirement can be used in his/her place. The joint sponsor does not have to be related to the petitioner or the beneficiary, although the joint sponsor must be a U.S. citizen or permanent resident.

What obligations do a sponsor or joint sponsor have towards the beneficiary?

In sponsoring a beneficiary for a green card, the petitioner or joint sponsor is essentially signing a contract agreeing to provide the beneficiary with any support necessary to maintain him/her an income level that is at least 125% of the Federal Poverty Guidelines. This means that the sponsor agrees to make available his/her income and assets to the beneficiary in determining whether he/she is eligible for certain federal, state or local “means-tested public benefits.”

These may include: food stamps, Supplemental Security Income, Medicaid, Temporary Assistance of Needy Families, or State Child Health Insurance Program. Means-tested public benefits do not include: emergency Medicaid, school lunches, immunizations for communicable diseases, student assistances, foster care or adoption assistance, job training programs, Head Start, or short-term, non-cash emergency relief. By agreeing to sponsor a beneficiary, the petitioner agrees to reimburse any federal, state or local agency for any public benefits that the beneficiary receives after becoming a permanent resident.

How long does the obligation last?

This obligation will continue until the beneficiary: 1) becomes a U.S. citizen; 2) has worked or is credited with forty quarters of coverage under the Social Security Act (e.g. – working full-time for ten years); 3) no longer has lawful permanent status (e.g. – reliquinsh or abandon green card); 4) becomes subject to removal and obtains a new basis for adjusting status; 5) dies; or 6) the petitioner/joint sponsor dies. It is important to note that divorce does not terminate a sponsor or joint sponsor’s obligations.

Conclusion

Before agreeing to sponsor a foreign relative for a green card, it is important for the petitioner to understand exactly what his/her obligations are. While almost all of us will do anything for a loved one, the obligation is a longstanding one – and one that may hit you financially down the road if the beneficiary does become a public charge.

Green Card Inadmissibility Based On Membership in a Communist Party

When seeking U.S. permanent residency, the USCIS or Department of State will ask (among other things) whether the applicant has ever been a member of a Communist Party or any other totalitarian party. While many applicants will answer “no,” citizens of certain countries may have to disclose some type of affiliation with a Communist Party – even though membership was involuntary and there was no active participation.

Example: Sergei is a 30-year old U.S. citizen and he wants to sponsor his father, Fedor – a Russian citizen – for U.S permanent residency. In 1982, prior to the dissolution of the U.S.S.R., Fedor was required to register as a member of the Communist Party in order to qualify a government job. Since this was the only job available to him, and since he had three children to support, he had no choice but to register for the sake of employment. After the dissolution in 1991, Fedor ceased any affiliation with the Communist Party and found a new job as a project manager with a private manufacturing company.

In applying for Adjustment of Status, Fedor disclosed that he had been affiliated with a Communist Party from 1982 to 1991. In doing so, Fedor may have admitted to being inadmissible for purposes of obtaining a green card.

However, there are exceptions to this inadmissibility:

Involuntary Membership

Fedor may not be inadmissible if he can demonstrate that his membership or affiliation with the Communist party was “involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.”

Past Membership

Fedor may also not be inadmissible if he can demonstrate that the membership or affiliation terminated at least two (2) years before the date of application; five (5) years before the date of application (if his membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date; and he is not a threat to U.S. security. In the instant case,

Close Family Members

Finally, the Attorney General may waive the application in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a U.S. citizen, or a spouse, son, or daughter of green card holder for humanitarian purposes, to assure family unity or in the public interest if the immigrant is not a threat to U.S. security. Since Fedor is the parent of a U.S. citizen, and he has shown that he does not pose a threat to U.S. security, his inadmissibility may be waived by an order of the Attorney General.

Conclusion

The USCIS called Fedor and his son in for an interview, at which time he explained that he only volunteered to be a member of the Communist Party in order to secure employment and that his membership ended in 1991. Since it had been more than twenty (20) years since his membership ended, and since he demonstrated that his membership was involuntary, the USCIS elected to waive his inadmissibility and grant him U.S. permanent residency.

Entering the United States on a Visitor Visa

Visiting the United States

Every year, millions of people from all over the world visit the United States for pleasure, personal or business reasons. Generally, any applicant seeking to visit the United States must show that:

• The purpose of the trip is for temporary business or pleasure
• The visit is for a specific and limited period
• He/she has sufficient funds to cover expenses throughout the period of the visit
• He/she has sufficient ties to the home country to ensure departure at the end of the visit

Visa Waiver Program

Citizens of certain countries under the Visa Waiver Program do not need to apply for a visitor visa before coming to the United States. These individuals are permitted to enter the United States for up to ninety (90) days in B-1 or B-2 status. Click here to learn more about the Visa Waiver Program.

B-2 Status

If the purpose of the visit is the following, the applicant will be admitted under B-2 status:

• Tourism
• Vacation
• Visiting friends or relatives
• Obtaining medical treatment
• Participating in social events hosted by fraternal, social, or service organizations
• Participating in musical, sports, or similar events or contests as amateurs, providing they are not being paid
• Enrolling in a short recreational course of study, not for credit toward a degree (for example, a one-day class on knitting at a community college)

B-1 Status

If the purpose of the trip is one of the following, the applicant will be admitted under B-1 status:

• Consulting or meeting with business associates and colleagues
• Attending a conference or convention (scientific, educational, professional, or business)
• Settling an estate
• Negotiating a contract on behalf of a Canadian company of which the applicant is employed

Activities That Are Not Permitted Under B-1/B-2 Status

• Studying full or part-time at an educational institution
• Employment (self or for a U.S. employer)
• Paid performances or any professional performance before a paying audience
• Arriving as a crewmember on a ship or aircraft
• Working as foreign press, radio, film, journalists, and other information media
• Seeking permanent residence in the United States

Canadians Entering the United States for Business

Canadian citizens enjoy a special privilege when traveling to the United States for brief business purposes. First, unlike citizens of many other countries, Canadians do not need to apply for a visitor visa in order to enter the United States. Instead, Canadians can simply state the purpose of their visit to a Customs and Border Patrol officer at a Port of Entry (POE).

Business Visitors

Canadian business visitors can enter the United States on a temporary basis to perform any of the following:

• Research and Design
• Growth, Manufacture and Production
• Marketing
• Sales: Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in Canada, but not delivering or providing the goods or services, or buyers purchasing for an enterprise located in Canada
• Distribution
• After-Sales Service: This activity consists of installers, repair and maintenance personnel, and supervisors that have specialized knowledge essential to the seller’s contractual obligations, and who perform services or train workers to perform services (pursuant to a warranty or other service contract related to the sale of commercial or industrial equipment or machinery, including software, manufactured in Canada)
• General Service

General service includes professionals engaged in business activities under NAFTA, but not receiving salary or other payment from a U.S. source (although expense reimbursements are permitted).

Other general services include:

• Management and supervisory personnel involved in a commercial transaction for an enterprise located in Canada
• Financial services personnel (insurers, bankers or investment brokers) participating in commercial transactions for an enterprise located in Canada.
• Public relations and advertising personnel consulting with business associates, attending or participating in conventions
• Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that began in Canada
• Tour bus operators entering the U.S. or Mexico.
• Translators or interpreters performing services as employees of an enterprise located in Canada

How do I qualify as a NAFTA Business Visitor?

• Canadian citizen
• Seeking entry for one of the business purposes listed in the previous section
• The proposed business activity is international in scope
• Primary source of remuneration is outside of the U.S.
• The principal place of business, and the accrual of profits, is outside of the U.S.
• You meet the member country’s existing temporary entry immigration requirements