Widows or widowers who are married to U.S. citizens at the time of death can apply for a green card. If the widow or widower and the U.S. citizen spouse has filed an I-130 (Petition for Alien Relative) then no actions need to be taken and the I-130 will automatically convert to an I-360 (Petition for a Amerasian, Widow(er) or Special Immigrant). The widower can also include their children in the petition regardless whether the deceased spouse had filed a petition.

If there are no existing prior petitions filed by the deceased spouse, the widow or widower can file a self petition as an “immediate relative” via Form I-360 (Petition for a Amerasian, Widow(er) or Special Immigrant).  To qualify, the self petitioner must not have been divorced or legally separated from the U.S. citizen at the time of death. If the citizen spouse did not have a pending I-130, then the widow or widower must file a I-360 no more than 2 years after death of U.S. citizen spouse.

Unmarried children of the widow or widower, under the age of 21, may be included on the immigration petitioner filed by the widow or widower. Derivative children of the “immediate relatives” enjoy the benefit of the Child Status Protection Act, which “freezes” the derivative’s age as of the date of the principal’s filing of Form I-130 or I-360. The purpose is to protect the derivatives from aging out  if they turn 21 prior to adjudication of their adjustment-of-status or visa application.

The upside to the E-2 Investor Visa is that the visa can be renewed every other year and there is no limitations as to how many times the visa can be renewed. To be able to qualify for an E-2, the foreign alien investor must posses the nationality of one of the treaty countries. A list of the treaty countries is posted below. If the investor is a business, then at least 50% of the business owners must be nationals of the treaty country.

One of the most common question I come across regarding the E-2 Investor Visa is how much investment must be made? As all questions that are met with a legal mind, the answer is: it all depends. It depends on what kind of business the foreign alien or business is seeking to invest in. Whether or not the business is new or existing. Normally, the investment amount usually should exceed $50,000.00 USD.

Something that needs to be in the back of the head of all foreign investors utilizing the E-2 visa is that all foreign investors must return to their country of origin once the investment business has concluded. However, the foreign investor can also petition for an adjustment of status if the option is available to the foreign investor. The holder of the E-2 visa may leave the U.S. at anytime but, is limited to 6 months.

How much do you have to make to qualify as a sponsor? That will depend on your household size. The sponsor must make a household income of 125% of the U.S. poverty level of their household size. You can use the chart below to help calculate the required income.

Who should be the sponsor for the immigrant? Well the person who filed an immigrant visa petition for alien relative usually must be the sponsor. The sponsor must also be at least 18 years old and a U.S. citizen or a permanent resident. The sponsor must have a place of residence in the United States or a territory or possession of the United States.

If the petitioner does not make enough income to qualify as a sponsor, the petitioner may find a joint sponsor. A joint sponsor must be willing to accept legal responsibility for supporting the family member with the petitioner and must meet all the same requirements as the petitioner (meaning the joint sponsor must reach the 125% income requirement alone and cannot combine incomes to meet the income requirement) . The joint sponsor does not need to be related to the immigrant alien.

What this means is that the foreign nationals who are subject to the bar are not allowed readmission into the United States for either 3 years or 10 years. Now the question is: if you are subject to the 3/10 year bar, when does the bar start counting down. The short answer to that is: right after you leave the United States. You can start counting on the day you leave United States soil based on a deportation action.

However, one can always try. First, you will have to file a I-539 which is the application to extend/change nonimmigrant status. The application fee for the I-539 is $300. In order to improve your chances for getting the I-539 approved you will need to build a compelling case. Having a doctor’s report to show that the pregnancy is too advanced and that flying will on the departure date will not be safe for the visitor and fetus will help with the case. Additional facts that may strengthen your case will be proof of your itinerary such as a pre-purchased plane ticket back home and where you plan to stay while in the United States. Also, evidence that you are able to afford the medical services for the birth in the United States can’t hurt. Of course with all of these convincing factors, USCIS still reserves the right to deny the application to extend.

Now, the statute that addresses this issue (more specifically 8 CFR § 205.1(a)(3)(i)) states that an approved petition is automatically revoked upon the death of either the petitioner or the beneficiary. The good news is that the beneficiary is not without recourse and may request for USCIS to reinstate the revoked petition pursuant to 8 CFR § 205.1(a)(3)(i)(C)(2). Reinstatement lies in the discretion of the Attorney General and is based on humanitarian reasoning. Once the reinstatement is approved, the beneficiary must find a substitute sponsor.

The substitute sponsor must be a United States citizen or lawful permanent resident who is at least 18 years of age. And, of course, the substitute sponsor must be somewhat closely related to the beneficiary.

U.S. citizens usually will petition for a fiancé visa (K-1), so that their foreign national fiancé can come to the United States for purposes of marriage. Subsequent to marriage, the foreign national usually files an Adjustment of Status in order to remain and work in the U.S. legally. However, what confuses many people is that the Adjustment of Status based spousal petition grants only a “conditional” permanent residence and not, contrary to many beliefs, a permanent residence/”green card.”

Within 90 days of the second anniversary of the marriage, the couple would have to file a “Removal of Conditional Residence” (Form I-751) in order to remove the 2 year condition or else the conditional lawful permanent resident alien’s status will automatically expire and the foreign national will be living in the U.S. illegally. In the “Removal of Conditional Residence” process, the alien must demonstrate that the marriage was valid and not a sham.

Now, with the divorce rate in this country skyrocketing, some marriages do not withstand the 2 year period. In that case, the foreign national may still seek removal of his conditional resident status if he can demonstrate that the marriage was entered into in good faith and not for the purpose of evading the immigration laws, if the beneficiary spouse or child was battered or subject to extreme cruelty (mental or physical), or if the deportation/removal of the alien would cause extreme hardship to a qualifying family member.

For those of you who have been through the naturalization process, you can appreciate how costly and time consuming the application can be. The worst thing that can happen is your application gets denied. But for most people, a more confusing phenomenon takes place: their N-400 gets administratively closed without receiving notices or updates. Usually this happens when the applicants either miss the interview or finger printing portion of the naturalization process due to lack of notice or update by the USCIS. USCIS will then deny the application due to abandonment. If you are grouped in the latter category, you may have a choice of two roads of recourse. You can either reapply for naturalization or attempt to reopen your current case.

There are pluses and minuses to both of the options mentioned above. In most cases, the process is quicker if you resubmit your application for naturalization; however, you will have to pay the filing fee again which is a hefty $680 ($595 for the application plus $85 for the biometrics). The other option is to file a motion to reopen your N-400 application to USCIS. The exact form to request a hearing is the “Request for Hearing on a Decision in Naturalization Proceedings” (Form N-336). The appealing aspect of reopening the N-400 application is that if your application is denied then you will not have to pay the filing fee for the N-336. The down side of reopening the N-400 application is, most of the times, the reopening process takes longer than the process to resubmit a new N-400 application.

I always leave it up to the client’ discretion as to which route to take after I have explained to them the two methods of reviving the naturalization process after its initial denial.

The first thing you have to do is to petition with the Bureau of Citizenship and Immigrant Services on behalf of your fiancé. Once that is approved, then your fiancé would have to obtain a K-1 visa from the U.S. Embassy or consulate abroad (whichever one is closer to him/her).

The K-1 visa is only valid for 90 days, so that means you need to be married within 90 days of your fiancé entering the United States. What most must be careful of is that the 90 days limitation cannot be extended. After the 90 days period, your fiancé will be illegally remaining in the U.S. and may be deported and subjected to the 3 or 10 year bar.

In most cases, after the marriage, the fiancé intends to live and work permanently in the U.S. If that is the case your fiancé should apply to become a permanent resident. What I strongly advise to all of my clients that are planning to get married to a K-1 is to apply for Adjustment of Status as soon as the couple marries. The K-1 status expires after 90 days, married or not. The only way to protect your legal status is to apply for Adjustment of Status before the K-1 visa expires. If the K-1 fiancé does not intend to live in the U.S. then he/she will have to leave the country after 90 days restriction.

If your fiancé has child(ren) please refer to the K-2 visa blog that will be posted soon.