HOW DO I SPONSOR MY FAMILY MEMBER TO IMMIGRATE TO THE U.S.?

Walnut Creek Office 1801 Oakland Blvd. Suite 220 Walnut Creek, CA 94596 Telephone: (925) 222-5074 Ukiah Office 308 S. School Street, Ste. L Ukiah, CA 95482 Telephone: (707) 376-1010 San Jose Office 111 N. Market Street Ste. 300 San Jose, CA 95113 Telephone: (408) 963-0355 www.KPBlawyers.com

KEROSKY PURVES & BOGUE Attorneys at Law San Francisco Office 142 Sansome Street, Ste 500 San Francisco, CA 94103 Telephone: (415) 777-4445 Los Angeles Office 8484 Wilshire Blvd.Ste 430 Beverly Hills, CA 90211 Telephone: (323) 782-3877 San Rafael Office 4040 Civic Center Drive, Suite 200 San Rafael, CA 94903 Telephone: (707) 433-2060

Santa Rosa Office 131A Stony Circle Suite 475 Santa Rosa, CA 95401 Telephone: (707) 433-2060 Napa Office 1311 First Street Napa, CA 94559 Telephone: (707) 224-2722 Sacramento Office 770 L Street Suite 950 Sacramento, CA 95814 Telephone: (415) 777-4445 Attorney@KPBlawyers.com

Please respond to our Santa Rosa address

HOW DO I SPONSOR MY FAMILY MEMBER TO IMMIGRATE TO THE U.S.?

An introduction to the family preference system.

Much of the immigration to the U.S. that occurs is through sponsorship by a family relative.  Family-based immigration allows for close relatives of U.S. Citizens and legal permanent residents to rejoin their families here in the U.S.   

However, the system is based on categories, each of which has strict annual limits in the number of immigrants allowed each year. This creates backlogs, some of them quite lengthy, in some of these family categories.

The priority is given to “Immediate relatives”.  This category does not have any limit or cap on the number of visas and therefore, there is no “waiting period” other than the amount of time the Department of Homeland Security (or the U.S. consulate abroad) takes to process these visas.  These “immediate relative” categories are:

·                Spouses of U.S. citizens;

·                Unmarried minor children of U.S. citizens; and

·                Parents of U.S. citizens.

Obtaining a green card through marriage.

In the case of marriage, an application must be submitted along with documents to prove the validity of the marriage and an interview takes place at the DHS office, if they are in the U.S.  It generally takes approximately six months to obtain conditional permanent residence for the spouse.  Conditional permanent residence is granted for two years.  

In the case of all immediate relatives in the U.S., an application for a green card can be processed here.  It is not necessary for the relative to be in legal status, but they must have come to the U.S. legally, with a  valid visa.  If they crossed the border without a visa, they do not qualify.

If the spouse is outside the U.S., then an application is filed here and once approved, the relative goes through “consular processing” back home in their home country.

Obtaining permanent residence through family members other than spouses.

You can sponsor other members of your family besides those in this “immediate relative” category, but in each case there will be a long wait for them to get a green card.  The other relative categories have limits on the number of visas and therefore, there are waiting periods, which can run from five to ten years or more.  These relative categories are:

·                Adult children (unmarried) of U.S. citizens (1^st preference category)

·                Spouses and minor children of legal permanent residents (2d preference)

·                Adult children (married) of U.S. citizens (3d  preference category)

·                Brothers and sisters of U.S. citizens ( 4^th preference category)

The waiting periods for each of these visas can be determined (approximately) by checking the U.S. Department of State website or the Visa Bulletin which they publish.  The visa bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The U.S. Department of State visa bulletin lists each category and the date on which an individual applied in each category who is being processed for a green card currently.  From this date, one can try to extrapolate how long it will take for an application filed today to take before a relative qualifies for permanent residence. 

As you’ll see when you check this bulletin, there are long waits for every category of family sponsorship.         In addition to per category limits to family-based immigration, there are also per country limits. 

Because of higher numbers of immigration to the U.S., persons coming from the countries of Mexico, the Philippines, China, and India have an even longer wait than those from the rest of the world.

While it may seem absurd to file to sponsor your relative given that the wait is over five years, there still are good reasons to do so.  If the annual limits per category are raised in the future, this waiting period will decrease. 

In any case, the sooner you file to bring your relative, the sooner the person will join you here as a green card holder.

****************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for over 10 years by “Super Lawyers”.  See https://profiles.superlawyers.com/california-northern/san-francisco/lawyer/christopher-a-kerosky/358dc9f1-b1c2-46b5-80cc-6e9610b1cd43.html

.

WARNING: The foregoing is a summary generally discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case before filing any application or petition.

Can winery workers get a visa ?

By Christopher Kerosky, Esq.

This article was published in this month’s Immigration Stories column in the  Sonoma County Gazette: https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-can-winery-workers-get-a-visa-february-2019

All of us see the workers in the fields tending the vineyards throughout the year as we drive our beautiful Sonoma County roads.  You may wonder: can a person working in those fields get a green card by way of their job at the winery? The answer might surprise you.

Yes, if you are a winemaker.

The federal government has a special visa for temporary foreign professionals hired by a U.S. employer, known as the H-1b.   The H-1B visa is frequently used to hire IT professionals in Silicon Valley or elsewhere; it also works for winemakers (and their assistant winemakers). 

The application period for the H-1b visa starts on April 1^st.  Because there is a limited annual quota (65,000) of H-1 visas for the entire country and because there is high demand for these visas, the allotment of these visas has been used up  immediately after April 1^st for the last 5 years.  Last year, over 200,000 people applied in the first few days of April.  The government has to hold a lottery every year to decide which 65,000 envelopes they were going to open; the other 135,000 applications were sent back. 

Even for the highly-paid and highly educated, the visa system is basically broken.

Employment at a winery can be a basis for permanent residence for enologists, if they prove that no qualified American wants that job.  There is a complicated process known as PERM, whereby the winery must advertise and recruit for the position and prove to the government that no qualified U.S. citizen responded to the job opportunity.  An H-1b visa can allow a winemaking professional to stay and work legally in this country while they apply for a green card. 

But persons are eligible for an H-1b only for "specialty occupations”.  Generally speaking, that means jobs requiring a college degree.  No degree, no H-1b visa.

Maybe, if you’re an intern or trainee.

There are certain internship opportunities for foreign workers.  The requirements are fairly stringent but if a winery offers training to a college graduate or a current student studying winemaking, the foreign national may be eligible for what is known as a J-1 visas.

The J-1 internship or trainee visa application must be filed by an employer with an approved training program in winemaking or related skills.  The visas are typically valid for 6-18 months only.  An independent agency – paid by the applicant-- checks to make sure the training program is legitimate and processes the paperwork. 

The visa is not available for what the government considers “unskilled workers” and persons here without documents are ineligible.

No, if you are a field worker.

What about all the other winery workers like those who tend the vineyards or pick the grapes?  In short, no path to a green card exists for them and temporary visas are extremely limited.

There are some field workers who can qualify for an agricultural worker visa known as an H-2a.  But these visas are granted to groups of workers after an employer has shown that there is shortage of farm workers available in their geographic area.  There is a rather long, cumbersome process to apply for the visa, involving proving a labor shortage in a procedure with the U.S. Department of Labor.  If eligibility is shown, the worker is granted a visa for one year, and the employer must renew the visa every year by showing a continuing labor need.

Most importantly, those farm workers who are already here illegally need not apply.  They are not eligible. 

Frequently in my work as an immigration lawyer, I have to inform willing employers of this little-known fact about our immigration laws: there simply is no way for an undocumented worker to obtain legal status through employment.

****************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

.

WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

CAN I GET STATUS IF I HAVE A FAMILY MEMBER IN THE MILITARY?

PAROLE IN PLACE

USCIS may grant parole in place on a case-by-case basis for urgent humanitarian reasons or significant public benefit under section 212(d)(5)(A) of the INA.  A person may be eligible for parole in place in 1-year increments if they are the spouse, widow(er), parent, son or daughter of:

• An active-duty member of the U.S. armed forces;
• An individual in the Selected Reserve of the Ready Reserve; or
• An individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.

This primarily helps those who entered the U.S. illegally.  By applying for Parole in Place (PIP), that immigrant is considered to have been “paroled” into the country and therefore entered legally.  This change of status opens the door for many immigrants to apply for adjustment of status to permanent residence, especially if they are married to a U.S. citizen.

If an immigrant entered the U.S. lawfully but overstayed their visa (or are otherwise in the U.S. past their period of authorized stay), they are not eligible for parole in place because they are not an applicant for admission. However, an immigrant may qualify for deferred action.

Background.

In November 2014,, USCIS issued a policy memorandum which created the Parole in Place program.  "Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i)". ¹

The memorandum directs that undocumented immigrants present in the United States without having been admitted or paroled, and who are spouses, children, or parents of military members, reservists, or veterans, will be entitled as a class to "parole in place" — a quasi-legal status in the U.S. that opens the door for them to adjust status in the U.S.

Adjustment of Status.

Parole in Place allows a person to obtain permanent residence through adjustment of status in the U.S., if they have a U.S. citizen spouse or a child over 21 years of age.  Normally, the immigrant would need a pardon and the pardon procedure (I130/I601A/CP) requires the final step outside the U.S. at the Consulate in the immigrant’s home country.  Often the person is not eligible for a pardon.

This Parole in Place procedure greatly simplifies the procedure for permanent residence.  The applicant can do the entire process here and  does not need a pardon.

************************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 9 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

FIANCÉE VISAS: HOW TO BRING YOUR LOVED ONE TO THE U.S.

By Christopher Kerosky, Esq.

A U.S. citizen can sponsor their future spouse to come to this country on a fiancée visa known as a K-1 visa.  If the visa is approved, the couple must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country. 

How to apply.

To start the process to obtain a fiancée visa, an application is submitted to the Bureau of Citizenship and Immigration Services (USCIS) of the Department of Homeland Security.  In order to prove that the relationship is valid, it is necessary to provide certain documentation with the application such as evidence of the past relationship, correspondence, travel records, other evidence of their time spent together and their courtship.  It is helpful to submit photographs of the couple together, including photos with family members if possible.  We recommend that clients also submit statements from family members confirming that the relationship exists.

It is also necessary to submit financial documents proving that the petitioner US citizen can support the fiancée in the United States financially.  This usually includes tax returns, W2s from an employer and a letter confirming present employment.

Upon submission of the application, the Immigration Service attempts to determine if the relationship is bona fide.  Once approval in the U.S. occurs, there is a consular interview at the Consulate overseas at which the applicant may be asked questions about the relationship.  Usually only the intending immigrant attends this interview.  At the end of the interview, if the officer is satisfied the relationship is bona fide, and all other requirements for the visa are met, the visa is approved. 

Adjustment of status in the U.S.

Once the person comes to the United States, the couple must marry within 90 days.  At that point, there is another procedure known as Adjustment of Status required to obtain permanent residence for the immigrant.  There are more forms to file and documents to submit, with an interview at the end of the application process, which both spouses must attend. 

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.  If the marriage is less than two years old, the immigrant is given conditional permanent residence.  This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months. 

Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists. 

U.S. law does not allow the individual to switch to a different U.S. visa under any circumstances. If the marriage does not occur, the foreign national generally must return to their home country.  So the fiancée visa is not a good option unless the couple are relatively sure they will be married.

Pluses and minuses of the K-1 visa.

The fiancée visa is useful for persons who cannot obtain a tourist visa and are not eligible for a visa waiver; they often have no other way of coming to the U.S. to spend time with a future spouse.  The visa has the benefit of allowing the foreign national to spend up to 3 months with their fiancée living in the U.S. to “test the waters” of their relationship before actually getting married.

One problem with the fiancée visa: it can be a long process, especially now during the Trump Administration.  And once the petition is filed, it is often difficult for the intending immigrant to visit the U.S. on a tourist visa or visa waiver (ESTA).  The U.S. Consulates are often unwilling to grant a tourist visa if a foreign national has a fiancée visa application pending; likewise even if the fiancée has a tourist visa or is eligible to enter the U.S. without a visa, U.S. border officials might turn the fiancée  away at the airport because of the pending application. 

Therefore, Clients should carefully consider their future travel plans before filing the visa application and be prepared for the possibility of being apart for long periods of time.  In the next segment, we will discuss the alternatives to the fiancée visa for couples, and the advantages and disadvantages of each.

***************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law since 1984 and has been recognized as one of the top immigration lawyers in Northern California for 8 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 

WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

HOW DO I GET MY GREEN CARD IF I MARRY A U.S. CITIZEN?

Under present law, a person who came to this country on a valid visa can apply for permanent residency if they marry a US citizen.  If the person came to the US on a fiancee visa, they must marry within 90 days to the person who sponsored their visa in order to qualify for adjustment of status to permanent residence in this country. 

All other persons can apply for adjustment of status to permanent resident in this country based upon marriage to a U.S. citizen, as long as they entered the United States on a valid visa and have not committed a crime or some other act which makes them ineligible. 

Of course, the marriage must be a valid and bona fide one.

Also persons who qualify for a special law called Section 245i can also file for a green card here in the U.S. based on marriage – even if they came here without a visa.  You only qualify for Section 245i if you had a family member or employer file to sponsor you for permanent residence before April 30, 2001.  Many persons who have been sponsored by parents or siblings and have been waiting many years for their case to be “current” can file instead through a U.S citizen spouse under Section 245i.  (However, it is very important to get good legal advice before filing to make sure you are eligible.)

There are many necessary forms and documents necessary to submit with the marriage petition, including photos, birth and marriage records and other immigration forms.   It generally takes only 9-15 months to finish the adjustment of status process.  There is an interview at the end of the application process, which both spouses must attend. 

In order to prove that the marriage is valid at the interview, it is necessary to provide certain documentation.  This includes financial records such as leases with both spouses names, joint bank account statements, joint credit cards, utility bills and other evidence that the couple is living together.  It is also helpful to bring photographs of the couple together, including photos of the wedding.  Other personal documents such as correspondence before marriage or even personal mementos can be helpful to show the immigration officer.

The interviews generally last approximately one hour or less and are intended to determine whether the marriage is legitimate or not.  If there is any significant doubt about whether the marriage is real, the applicants are required to come for a second, more intensive interview.  In these second interviews, the spouses are separated and questioned at greater length by trained officers. 

If the officer is satisfied the marriage is bona fide, and all other requirements for permanent residence are met, the adjustment of status application is approved.  If the marriage is less than two years old, the immigrant is given conditional permanent residence.  This status gives the immigrant all the same rights as a permanent resident except that it expires after 24 months. 

Two years after the granting of conditional permanent residence, a new application must be submitted to the immigration service, documenting that the marriage still exists. 

For those persons who came here without a visa and do not qualify to change their status here under 245i, there is a possibility to apply at the U.S. Consulate in your home country, and request a pardon of the penalty for being here illegally.  One should definitely seek legal advice before applying in this manner for a pardon.

************************************************************************

CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law more than 25 years and has been recognized as one of the top immigration lawyers in Northern California for 9 years by“Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and six other locations in California. 
WARNING: The foregoing is an article discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.