In August, I advised more clients than ever before to take no action or change their present course of action. For months now I have been telling you my readers to take your immigration situation into your hands and do something about it while it was still within your control. Unfortunately, not all immigration issues can be resolved without disrupting your lives. Even in these cases, however, it is important to understand what your status.
While immigration forms may, in some instances, appear simple, there are innumerable details and regulations not included in the instructions that can slow or cause your case to be denied. Furthermore, United States Citizenship and Immigration Services (“USCIS”) may take action beyond denying your petition. USCIS may refer your case to Immigration and Custom Enforcement for removal/deportation proceedings or federal prosecutors for criminal prosecution. The following are just two of the many cases I encountered this month.
Ms. A came to my office for a consultation and requested that I review the N-400 form (application for naturalization) she had prepared herself. It is not my practice to pick-up where another attorney left off or to review and “bless” forms completed by a lay person. I explained this to Ms. A. She explained that she was positive that she did not need nor want to retain an attorney; all she wanted was for me to review her form for completeness.
As her consultation was scheduled to last one hour and only 20 minutes had passed, I decided to review the portion of the N-400 form that usually is the source of many denial letters from USCIS. I asked Ms. A specific questions, the answers to which alerted me to the fact that she had completed the N-400 inaccurately. Several years ago, Ms. A applied for and received public assistance. The fact that she received public assistance did not make Ms. A ineligible to naturalize, i.e., become a U.S. citizen; however, her providing false information on her public assistance application likely would have caused her more trouble that she ever anticipated. USCIS has access to various databases and can obtain public records, lease information, credit card applications, and information used to apply for public assistance. Inconsistencies between your petition and other information can lead to your petition being denied and worse.
Had Ms. A filed her N-400 form, it is my belief that USCIS likely would have discovered her fraudulent responses and notified the Department of Human Services that she provided false information to that agency and was then ineligible to receive benefits. Unlike many crimes, there is no statute of limitations of Medicaid fraud and, if convicted, Ms. A. stood the risk of being imprisoned for up to five years and being subject to a $5000 fine. In addition, Ms. A’s application to naturalize would likely have been denied on the basis that she did not exhibit the “good moral character” required to become a U.S. citizen.
Next, Mr. and Mrs. B came to my office seeking advice regarding how Mr. B could sponsor Mrs. B. Mrs. B came to the United States on a C visa and was in transit to another country when she decided to remain in the U.S. Mrs. B’s visa was issued, however, for the sole purpose of allowing her to catch a connecting flight to another country and was good for a limited time.
Ordinarily, undocumented spouses of US citizens and permanent residents residing here in the United States are eligible to obtain permanent resident status without having to first depart the country to apply for an immigrant visa. The lawful status requirement and unauthorized employment bar does not ordinarily apply to these spouses.There is, however, an exception to this exception. There are certain classes of individuals who may not remain here in the United States to adjust their status to lawful permanent s after/by marrying a U.S. citizen or permanent resident. Holders of C visas must leave the country and re-enter after their sponsorship paperwork has been approved. To be clear, this is the case even where the sponsor is a U.S. citizen spouse. Therefore, Mrs. B would have no choice but to depart the US and return when her sponsorship paperwork was approved. Mr. and Mrs. B’s plan to go forward with the sponsorship process with Mrs. B remaining here in the US would have eventually ended in a denial. USCIS likely would have reported Mrs. B to ICE for removal proceedings, which she could not fight on the basis of her marriage to Mr. B.
I advised the couple that Mrs. B had no choice but to depart the country. I also counseled them about filing for a particular visa along with the usual sponsorship paperwork in order for them to be reunited sooner rather than later. I have not heard from the couple and imagine that they decided to take no action at the present time.
These sample cases demonstrate that the lay person’s read and understanding of the instructions contained within immigration forms are not always accurate or reliable. Given the upwardly moving fees that accompany immigration petitions, and the importance of having your loved ones in your life, I recommend that you consult with an immigration attorney about the facts of your particular case. Advice from an attorney rarely ever hurts and most often puts you on the right track.
Most immigration attorneys I know, myself included, will not take your case if they feel certain that your application will be denied or that you are statutorily ineligible for the relief you are seeking. When in doubt speak with more than one attorney. Listen to the advice that the attorney is giving to you and do not be afraid to share what knowledge of the law you possess by way of your own research or from the other consultations you have had.
In my practice, I discuss with my clients the feasibility and type of petition which is appropriate. I prepare the required forms and assist them with the collection of the extensive supporting documentation. Once all of the supporting documentation has been collected, I file my clients’ petitions with the USCIS. Thereafter, I prepare my clients’ immigrant visa applications. By overseeing the entire process, an attorney can ensure that petitions are submitted timely and are in the best shape to be granted.