For Individuals

SERVICES FOR INDIVIDUALS

The Madrid Crost Law Group has over 20 years of experience handling a variety of cases for individual beneficiaries and petitioners. The firm has assisted thousands of individuals from various parts of the world on issues pertaining to the following matters: family-based petitions, self-petitions, employment-based petitions, citizenship and naturalization applications, asylum, removal defense, and student and exchange visitor assistance. The Madrid Crost Law Group also does waiver applications, if required, so that certain individuals can proceed with their applications to change or adjust status (e.g., J-1 visa holders who are subject to the two-year foreign residence rule) and overcome grounds for inadmissibility (e.g., individuals who are subject to the 3-year or 10-year bar).

Below are basic questions relevant to applications by or petitions for individuals.

Who can file an immigrant petition?

The petitioner in a family-based petition must be a citizen or a permanent resident of the United States who is related to the alien as a spouse, parent, son or daughter or child. A fiancée petition may be filed by a U.S. citizen who plans to marry a foreign citizen.

In the employment-based context, a U.S. employer who is a legitimate business entity or individual engaged in business may file an immigrant or non-immigrant petition on behalf of a foreign worker based upon a bona fide job offer.

Who qualifies as a beneficiary?

The principal beneficiaries of family based petitions are spouses, parents, siblings, and children (natural, adopted, and stepchildren) of U.S. citizen petitioners. The principal beneficiaries of petitions filed by lawful permanent resident petitioners are limited to spouses and unmarried children of any age.

Derivative beneficiaries are spouses and children who meet the definition of a “child” as defined by the Immigration and Nationality Act (INA) or qualify as such under the Child Status Protection Act (CSPA).

What is a priority date? How can a beneficiary obtain a priority date?

The priority date determines the order in which visas are issued to beneficiaries under the preference system for family-based and employment-based immigrant petitions. This web site provides a monthly update on the priority dates currently being processed.

The beneficiary’s priority date is set when USCIS receives a complete application with the exact filing fee, and when the U.S. Department of Labor receives an application for labor anticipation. The beneficiary can monitor the visa bulletin, which is updated every middle of the month, to find out the cut-off date of visas that will become available the following month. When the beneficiary’s priority date is earlier than the cut-off date, the visa is immediately available to the beneficiary. This means that the beneficiary can proceed to either complete the consular process for the issuance of an immigrant visa or apply for adjustment of status into a lawful permanent resident if the applicant is physically present in the United States.

Who must file an affidavit of support? Is it possible for a substitute sponsor to file an affidavit of support if the petitioner is now deceased?

All petitioners are required to file an affidavit of support. The petitioner must have an income which is at least 125% of the federal poverty guideline for their household size (or 100% in the case of a petitioner who is in active military duty). In the event that the petitioner does not meet the income requirement, the beneficiary must find a joint sponsor to file an additional affidavit of support. Alternatively, if the beneficiary or household member meets certain requirements, their income may be added to qualify the petitioner’s affidavit of support. In addition, the value of the petitioner’s assets may be used to qualify and meet the requirements for the affidavit of support.

A substitute sponsor may file an affidavit of support in lieu of a deceased sponsor. The Family Sponsor Immigration Act of 2002, PL 107-150 (Mar. 13, 2002) provides that the following relatives qualify as substitute sponsor/s: spouse, parent, sibling, child who is at least 18 years of age, grandparent, grandchild who is at least 18 years of age, mother-in-law, father-in-law, son-in-law, daughter-in-law, sister-in-law, brother-in-law, or legal guardian of the beneficiary.

What is the Surviving Relatives Law and humanitarian reinstatement of petitions?

The Surviving Relatives Law, Section 204(l) of the Immigration and Nationality Act, was enacted on October 28, 2009 to benefit principal and derivative beneficiaries of family-based and employment-based petitions in the event of death of the petitioner. This law favors qualifying beneficiaries residing in the United States at the time of death of the sponsor or principal beneficiary and continues to reside in the United States, and granting immigration benefit is not contrary to public interest.

Before the Surviving Benefits Law was enacted, the only recourse of surviving relatives was to request, pursuant to the Family Sponsor Immigration Act of 2002, for the humanitarian reinstatement of the deceased petitioner’s approved petition and USCIS, in its discretion, could grant the revival of the petition for humanitarian reasons. This earlier law covered only family-based immigrant petitions.

What is lawful admission? Who is deemed not lawfully admitted or inadmissible?

Lawful admission, referred to in Section 101(a)(13)(A) of the Immigration and Nationality Act refers to “lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” A person who crosses the border without being inspected by an immigration officer is not deemed to have been admitted even though the person is physically present in the United States. A crewmember granted permission to be in the United States temporarily is not deemed to have been admitted.

The concept of admissibility also arises when one who is physically present in the United States is applying for adjustment of status (green card application). Inadmissibility is quite a complicated concept and the grounds for inadmissibility, as well as the burden of proof to overcome a ground of inadmissibility, depend on whether the individual is seeking admission or is subject to deportation. A more detailed discussion on removal defense can be found on this web site.

Is it possible to seek a waiver to overcome inadmissibility?

Certain grounds for inadmissibility may be overcome by a successful application for a waiver. An alien may be saved from removal by meeting the burden of proof to warrant a successful waiver application. For example, a criminal ground for inadmissibility or removal may be waived depending on various details including the manner in which the conviction was reached, e.g., plea of guilty and the timing of the conviction. The availability of an affirmative relief from removal is discussed in detail in the removal defense section of this web site.

How does one maintain a valid immigration status?

Immigrants, visitors, fiancées, and temporary foreign workers must at all times honor the conditions of their admission into the United States. For instance, an H-1B professional must work only for the petitioner; any additional employment, without the benefit of another H-1B petition, is a violation of status. This applies to the other non-immigrant working visas.

B-2 tourists or visitors under the Visa Waiver Program may not engage in gainful employment or have a preconceived intent to work when they enter the United States. In the event that an employment opportunity arises, certain visitors may apply for a change of status as long as the requirements are met and the application is timely filed. Visa Waiver Program visitors must exit the United States within 90 days after admission and apply for the appropriate visa at the consular office if they plan to come back to work in the United States.

A fiancée must get married to the petitioner within 90 days of admission. The adjustment of status of the fiancée is possible only by marrying the U.S. citizen fiancée who filed the petition. The foreign national fiancée cannot apply for an immigration benefit, and is rendered removable if the marriage to the fiancée petitioner does not take place within 90 days of admission.

An alien who is admitted as a lawful permanent resident must have the intention to reside in the United States. Absence for more than one year is deemed automatic abandonment of one’s lawful permanent resident status unless exigent circumstances caused the lengthy absence. In limited situations, a lawful permanent resident who works outside the U.S may apply to reserve residence for naturalization purposes.

B-2 tourists or visitors under the Visa Waiver Program may not engage in gainful employment or have a pre-conceived intent to work when they enter the United States. In the event that an employment opportunity arises, the visitor may apply for a change status as long as the requirements are met and the application is timely filed. Visa Waiver Program visitors must exit the United States within 90 days after admission and apply for the appropriate visa at the consular office if they plan to come back to work in the United States. A fiancée must get married to the petitioner within 90 days of admission. The adjustment of status of the fiancée is possible only by marrying the petitioner.

An alien who is admitted as a lawful permanent resident must have the intention to reside in the United States. Absence for more than one year is deemed automatic abandonment of one’s lawful permanent resident status unless exigent circumstances caused the lengthy absence.

Our attorneys are available to respond to your initial immigration-related inquiries by phone or email. Please
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