Articles Posted in Family Visa

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US_Embassy_in_Kabul_on_July_4th_2010.jpgConsular officers, who work for the U.S. Department of State (DOS), have a considerable amount of discretion regarding issuance of immigrant visas to relatives of U.S. citizens. If a consular officer refuses to issue a visa, the doctrine of “consular nonreviewability” has generally held that neither the immigrant nor the relative may challenge that decision in court. The U.S. Supreme Court has agreed to hear a case in which a U.S. citizen is challenging a consular officer’s decision, claiming that the officer infringed on her constitutional rights. Kerry v. Din, No. 13-1402.

The Supreme Court has held that immigration to the United States is not a right but a “privilege granted by the sovereign United States Government.” United States ex rel Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Consular officers interview prospective immigrants prior to issuing a visa, in part to determine whether they are inadmissible to the United States under 8 U.S.C. § 1182. One of the questions presented to the Supreme Court in Din is whether a petitioner may compel the government to present specific statutory and evidentiary support for a consular officer’s decision.

In the Din case, a U.S. citizen petitioned for an immigrant visa for her husband, a national of Afghanistan. He had worked for the Afghan Ministry of Social Welfare as a payroll clerk from about 1992 to 2003. This included the time period from 1996 to 2001 when the Taliban controlled most of the country. USCIS approved the petition, and DOS scheduled the husband for an interview at the U.S. Embassy in Islamabad, Pakistan. The interview took place on September 9, 2008. After about nine months, the petitioner received a notice from DOS that the visa had been denied, and that the husband was not subject to a waiver of ineligibility. The Embassy informed them that the visa was denied due to “terrorist activities,” 8 U.S.C. § 1182(a)(3)(B), and that it could not provide any additional information, id. at §§ 1182(b)(2) – (3).
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file1001282444781.jpgCongress first enacted the controversial Defense of Marriage Act, or “DOMA,” in 1996. The law stated, in part, that the federal government would only recognize marriages between a man and a woman. While state law governs most aspects of family law, DOMA has had a profound effect on a wide range of federal rights and benefits, including the right of a U.S. citizen or permanent resident to petition on behalf of a spouse for an immigrant visa. Even if a marriage was legal at the state level, DOMA prevented the federal government from approving immigrant visa petitions for same-sex couples. A U.S. Supreme Court decision in June 2013, however, struck down the relevant section of DOMA, opening the doors to as many as 25,000 binational same-sex couples who previously had no access to immigration benefits. For one couple in New York City, the impact was immediate and profound, stopping a deportation proceeding in its tracks.

Section 3 of DOMA changed the definitions of “marriage” and “spouse” in all federal statutes and regulations to specifically refer to opposite-sex marriage. Pub. L. No. 104-199 § 3, 110 Stat. 2419, codified at 1 U.S.C. § 7. This affected countless federal programs, including immigrant visa petitions for spouses of U.S. citizens. Federal immigration law does not limit the number of immigrant visas issued to U.S. citizens’ spouses annually, but DOMA excluded people who were legally married, under state law, to U.S. citizens of the same sex. This left some same-sex spouses facing deportation because of a lack of legal options.
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Kyrgyzstan-mountains_in_summer_panorama.jpgAmerican families who wish to adopt a child from abroad face an array of challenges. While federal immigration law places few, if any, barriers to citizenship for a child adopted by U.S. citizen parents once the child is in the U.S. and the adoption is complete, the process of actually getting the child to the U.S. can be difficult, depending on the laws of the child’s home country. Several countries have instituted bans on intercountry adoptions with the U.S., including adoptions that were in progress. This has prevented some families, who have already met and bonded with the children they want to adopt, from bringing them home.

The AP reported on the “Kyrgyz 65,” a group of Americans who are trying to adopt sixty-five children from Kyrgyzstan in central Asia. The adoption process stalled in 2008, when the Kyrgyz government halted international adoptions because of alleged corruption. Kyrgyz government officials were accused of “dealing in what was effectively a trade in children,” according to the AP. The situation grew even more complicated in April 2010, when an uprising deposed the country’s president, who fled to neighboring Kazakhstan and then to Belarus. Two months later, ethnic violence broke out between Kyrgyz, who constitute the majority ethnic group, and minority Uzbeks.

Kyrgyzstan’s new president signed a law in May 2011 establishing new guidelines for adoptions, but much of the law still has not taken effect. The Kyrgyz government shut down adoptions again in July 2012 because of corruption charges. While some of the Americans have given up in the roughly five years since their adoption processes started, about fifteen families continue to travel to Kyrgyzstan to visit the children, and they regularly send letters and packages. The U.S. State Department last updated its adoption information for Kyrgyzstan in June 2011.
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245333_3375.jpgThe U.S. Department of State (DOS) released its Visa Bulletin for August 2012 on July 31, listing the priority dates for family- and employment-based immigrant visas. These are the visas for people intending to immigrate to the United States and obtain legal permanent residence. The Visa Bulletin provides important information for people who are awaiting a decision on an immigration petition that is subject to an annual quota. Certain immigrant visa petitions, such as U.S. citizens petitioning for an immigrant spouse or minor child, are not subject to a numerical limitation, so they are not included in the monthly Visa Bulletin.

The two major types of immigrant visas listed in the Visa Bulletin are family-based petitions subject to a quota and employment-based petitions. Once a petitioner, typically a U.S. citizen relative, permanent resident family member, or prospective employer, files a petition, the immigrant, known as the “beneficiary,” receives a “priority date.” This indicates the date the government accepted the petition. Different types of petitions receive different preferences from DOS and U.S. Citizenship and Immigration Services (USCIS). Immigration law also restricts the number of visas available from any particular country in a given year. As a result, the waiting periods, indicated by the priority date, vary depending on the type of petition and, in some cases, the immigrant’s country of origin.
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'Blue Nile Falls Ethiopia' by Jialiang Gao www.peace-on-earth.org (Original Photograph) [GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/) or CC-BY-SA-2.5 (http://creativecommons.org/licenses/by-sa/2.5)], via Wikimedia CommonsAlthough allegations of fraud and abuse have caused a decline in international adoptions worldwide, they remain popular for prospective adopters in the United States. While some countries have taken steps to prevent fraud and have seen the number of international adoptions decrease, other countries have apparently risen in popularity because they present fewer restrictions. This can lead, in some cases, to corruption and fraud, and the risk that a false statement made by someone filing paperwork abroad could eventually hurt the adopted child in some future immigration application or petition.

The United States became subject to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention”) in 2008. It establishes transparency procedures and safeguards to protect children in adoptions between countries. The U.S. State Department and U.S. Citizenship and Immigration Services (USCIS) deal with petitions for international adoptions. In addition to the family court procedures in a prospective adopter’s state of residence, USCIS requires a series of steps in order to obtain approval for an international adoption. It has one procedure for adoptions conducted under the Hague Convention, and another for non-Hague “orphan” adoptions. The State Department handles petitions for visas, filed at an embassy or consulate abroad, to legally bring the child to the U.S. Once the child has a visa and arrives in the U.S., the adoptive parents may adjust the child’s status to permanent residence, and the child may eventually be eligible for citizenship.
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Wedding cake of a same sex marriageAn immigration judge in Houston, Texas granted a reprieve to a Costa Rican man facing deportation based on the man’s marriage to a United States citizen. What makes this case unusual is that the man, David Gonzalez, is in a same-sex marriage. The judge’s decision is reportedly the first of its kind in Texas, and is part of a growing trend nationwide of immigration judges dismissing or deferring deportations based on same-sex marriage to a U.S. citizen. Despite the peace of mind Gonzalez must feel knowing he will not be deported, he still does not qualify for any particular immigration benefits, since federal law does not officially recognize same-sex marriages. This puts him in a sort of “twilight zone,” unable even to obtain employment authorization.

Gonzalez says that he arrived in the U.S. in 2000, coming from Costa Rica on a tourist visa in order to get away from an abusive former partner. He met Mario Ramirez, a U.S. citizen, about six years later. They got married in California in 2008 during the brief window when the state allowed same-sex marriage. They moved to the Houston area not long after that.

The government sought to deport Gonzalez for lacking legal immigration status, since he overstayed his tourist visa. The federal Defense of Marriage Act (DOMA), passed by Congress and signed by President Bill Clinton in 1996, prevented Gonzalez and Ramirez from obtaining an immigrant visa and green card for Gonzalez as the spouse of a U.S. citizen. DOMA prevents the federal government and its agencies from recognizing the validity of same-sex marriages. The decision by the Obama administration not to defend DOMA allows judges and other officials some leeway, but the law still prohibits nearly all benefits to same-sex couples that opposite-sex couples receive.

Now that Gonzalez has a reprieve, he still cannot obtain any affirmative immigration benefits. His marriage to Ramirez does not allow him to petition for an immigrant visa, and he cannot obtain a green card. In the case of opposite-sex couples, the spouse of a U.S. citizen can petition for an immigrant visa. U.S. citizen spouses are not subject to an annual numerical limit, so the waiting time is typically very short, as in weeks instead of years in many cases. While the immigrant spouse petitions for a visa, the citizen spouse can apply to adjust the immigrant’s status to that of a legal permanent resident, commonly known as a green card. Unless Gonzalez finds a different means of legal immigration, he may remain in the United States but cannot enjoy most of the benefits of legal immigration status. Perhaps most importantly, he has no way of obtaining work authorization.
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812054_47630563_02172012.jpgA South African man living on Long Island has gotten a reprieve from immigration officials, allowing him to stay in the U.S. to care for his husband, who is a U.S. citizen. Edwin Blesch, age 70, is from New York. He and Tim Smulian, a 65 year-old citizen of South Africa, were married in South Africa in 1999. Both the state of New York and Suffolk County recognize their marriage, but they could not apply for immigration benefits as a married couple under federal law. For over ten years, they spent six months on Long Island and six months in South Africa, or elsewhere abroad, in order to comply with the terms of Smulian’s tourist visa.

Blesch, who is HIV-positive, suffered a few small strokes and other complications from his illness, and now he cannot travel. Smulian is his primary caregiver. Smulian’s visa was set to expire at the end of 2011. The prospect of spending six months apart every year with Blesch in poor health led them, in March 2011, to file an application for a green card for Smulian as the spouse of a United States citizen. They asked U.S. Citizenship and Immigration Services (USCIS) to exercise its discretion to allow an exception to certain aspects of federal law, in this case the Defense of Marriage Act (DOMA), and approve the application. DOMA is the federal law defining marriage to be exclusively between a man and woman, and it has been the subject of several court challenges in recent years.

Several New York politicians, including both of the state’s U.S. senators, Charles Schumer and Kirsten Gillibrand, lobbied USCIS on behalf of Blesch and Smulian to allow Smulian to stay in the U.S. The couple received word earlier this month that USCIS had granted Smulian “deferred action” status. He can remain in New York lawfully for another year, but he has not been granted any further immigration benefits.

A tourist visa, also known as a visitor visa, is a type of nonimmigrant visa that allows someone to come to the United States for tourism or medical treatment. The key feature of any nonimmigrant visa is the requirement that the visa holder leave the U.S. before the visa expires. People with nonimmigrant visas must often physically leave the country in order to apply to renew the visa, which is what Smulian has had to do for over a decade.
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Five year-old Elizabeth, New Jersey resident Yarellis Bonilla, who suffers from leukemia, needs a bone marrow transplant to save her life. Immigration officials agreed last week to grant humanitarian parole to her older sister, seven year-old Giselle Bonilla, to come to the United States from El Salvador to participate in transplant surgery. The story by no means has a happy ending yet, but doctors have offered a good prognosis for Yarellis once she has the surgery. Under the terms of her visa, her sister Giselle will be able to stay for three months. They plan on doing the surgery at Newark’s Beth Israel Children’s Hospital after the new year.

The Bonilla family had fought for months to get permission for Giselle to come to New Jersey for her sister. The U.S. Department of State had previously denied two visa applications from Giselle. According to the family’s lawyer, the government looked at the size of the family in the United States and did not trust that Giselle would return to El Salvador upon the expiration of her visa. While the family waited for the government to approve Giselle’s application, Yarellis had to undergo repeated, and avoidable, chemotherapy treatments that have left her weaker than her doctors would like. Had the surgery happened earlier, she would not have needed so many intensive treatments, subjecting her to what one doctor called “a beating.” New Jersey Senator Bob Menendez, who has advocated extensively for the family, hailed immigration officials’ decision, calling it “the victory of common sense over bureaucracy.” He lamented that their decision did not come sooner.

Humanitarian parole is a way for someone who might otherwise be inadmissible to the United States to come here legally for a limited time period and for a specific purpose. It requires an applicant to demonstrate “urgent humanitarian reasons” or a “significant public benefit,” and it can only be granted for a period of time equivalent to the duration of the humanitarian situation. In Giselle Bonilla’s case, the three-month period is the length of time needed to participate in the surgery and recover.

Immigration authorities grant humanitarian parole “sparingly,” and have wide discretion to assess applicants’ circumstances. The government occasionally announces a policy related to specific events or circumstances. The Department of Homeland Security announced last year, for example, that it would grant humanitarian parole to Haitian children orphaned in the earthquake of early 2010, so that they can receive medical care. Decisions as to specific children would still be handled on a case-by-case basis.
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