One of the perks of being a Chicago Immigration Lawyer or an Immigration Lawyer in general is meeting people of all walks of life.  We work with clients on their immigration matters from not only Chicago, but around the U.S. and the world and we get to work on some of the most interesting issues.  A challenging part is that the U.S. Immigration Laws are not sufficient to deal with the many inquiries we receive.  One common question we regularly receive is on the topic of gay marriage.  The question that generally arises is “I married my partner overseas or in California…etc, can we file a Marriage Green Card Application?”  The simple answer unfortunately is no.  The not so simple answer is, even though some states recognize same sex marriage, the U.S. government does not.  Immigration Law is Federal, meaning state laws are not controlling but rather U.S. law is what is controlling for Immigration purposes.

Defence of Marriage Act (DOMA) – Traditional marriage 
In 1996, President Bill Clinton along with both the House of Representatives and the Senate signed into law the Defense of Marriage Act (DOMA).  Under DOMA, a U.S. state is not required to recognize same sex marriages.  Section 3 of DOMA by effect states that the U.S. Government does not recognize gay marriage.  Section 3 of DOMA states: :`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage’ means only a legal union between one man and one woman as husband and wife, and the word `spouse’ refers only to a person of the opposite sex who is a husband or a wife.’.”

Same sex marriage

 In May 2012, President Obama has been hinting towards supporting the U.S. Government recognizing gay marriage.  Whether this is for his campaign or it’s something that will be seriously proposed as law remains to be seen.  If same sex marriage is recognized by U.S. Law, it could have enormous immigration implications relating to fiancé visas and marriage green cards.

Fiancé Visa/ Marriage green card for heterosexual couples
Under U.S. Immigration Law, U.S. Citizen may petition for his or her fiancé or spouse.  Marriage green cards or marriage visas go through either the Immigrant Visa process or adjustment of status process.  Fiancé visas are commonly referred to as K1 visas or K1 fiancé visas allow an overseas fiancé to enter the U.S. to marry their U.S. Citizen spouse.  Once married within 90 days of entry on the fiancé visa, the married couple must apply for the adjustment of status process so that the foreign spouse can continue to live in the U.S.  Under U.S. Immigration law, a U.S. citizen and spouse have an Immediate Relative relationship.  The benefit of being an immediate relative in a permanent residence application is that an immigrant visa is always available for them.  This may not seem like a big deal, but under the Immigration preference system it is.  Specifically in family based immigration, there are Immediate relatives, and four types of preference relatives (Details of the preference system are beyond the scope of this article, but for example a fourth preference relative is the sibling of a U.S. citizen, depending on the country of origin of the Applicant/Beneficiary, their wait time for a green card could have anywhere from a 10 year to 20+ year.)  Now, compare that to the spouse of a U.S. citizen who is an Immediate Relative and their wait time is much shorter as they only need to wait for the case to be processed for an available green card.  Currently, a K1 fiancé Visa processing time ranges from 5 to 8 months on average.  An Immigrant Visa or marriage green card currently has an average processing time of 6 to 10 months until interview.  The Chicago Office for example processes marriage green cards or adjustment of status cases in approximately 90 to 120 days on average.

So if the U.S. government recognized same sex marriages, logically gay couples would be afforded the same K1 fiancé visa or marriage green card rights as opposite sex couples.  At the moment this is not something being talked about.  However, I suspect that if gay marriage gets closer to being recognized by the U.S. government, it will be.

EB1 Extraordinary Ability Green Card
Let’s assume that Russell did not file for a National Interest Waiver or EB1 based on Extraordinary Ability.  Whether Russell’s past performances are “extraordinary” is debatable.  However, as an immigration lawyer that works on all type of employment and family based immigration cases, I am confident of getting his EB1 Extraordinary Ability approved.  Even if the Examiner did not like Russell Brand’s past performances, given Brand’s starring roles in high profile movies such as Saving Sarah Marshall and Get Him to The Greek, and Arthur as well as his past awards including Best Live Stand Up in the British Comedy Awards it would be a strong case to prove that Russell Brand does have extraordinary ability as an actor and comedian.

O-1 Visa
On the other hand, marriage to a US Citizen is generally a smoother and quicker process provided the beneficiary/applicant is already in the US on a different non-immigrant status such as an O-1 visa or an H1B visa.  In Brand’s case, he would likely be eligible for an O-1B visa which is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry.  In the event Russell Brand was on an O-1 visa, it would be important to make sure there are not any intent issues.  Although O-1 visas do not statutorily allow duel intent, generally they do not require the Applicant to maintain a residence overseas.  So in effect, O-1 visas are thought to allow duel intent.  However, you need to discuss this with your Immigration lawyer before taking any actions such as adjusting status from O-1 status to permanent resident status.

Adjustment of status from O visa to EB1, or Marriage based Green Card
So let’s review, if Russell Brand was on an O-1 visa living in the US with his bride, Katy Perry, a US Citizen, what are his immigration options?

1. Do nothing, stay in the US temporarily on an O-1 visa making sure to comply with the requirements of the O-1.  This is assuming Russell Brand would not like to live in the US permanently;

2. If Russell Brand wants to live in the US permanently, file for an EB1 Extraordinary Ability.  This can be a rather involved process, however with Premium Processing it’s conceivable that the case could be approved within 15 calendar days.  Not likely as even the strongest of cases generally have requests for evidence which delay matters several weeks to months.

3. Marriage Green Card – Adjustment of Status Process.  The processing time for marriage green card cases, as an Immigration Lawyer that works on a lot of marriage green cards, my standard response is the processing time depends on the office adjudicating the case.  Since our immigration law firm is based in Chicago, I compare the Chicago USCIS office frequently which currently averages between 90 and 120 days.

Removal of Conditions – Conditional Green Card
Let’s assume that Katy Perry and Russell Brand wanted to proclaim their love to the US and decided to pursue the marriage green card (ie. conditional residency through adjustment of status).  And let’s assume that Russell’s case was approved in January 2011 since they married in October 2010.  Russell would be in an interesting situation.  Couples that are married less than 2 years receive conditional residency and need to apply to remove the conditions of the green card 2 years after approval.  So January 2013 would be Russell Brand’s deadline, and he could file 9 months prior to January 2013, around October 2012.  If he and Katy Perry are divorced and Russell Brand wants to live in the US permanently, what are his options?

Removal of Conditions after Divorce
1. File an application to remove the conditions.  However, due to the divorce after issuance of the conditional green card, a waiver maybe needed to prove that Katy and Russell entered into their marriage in good faith and it just didn’t work out.  Essentially proving that they were in love and their original marriage green card adjustment of status case was not a sham marriage.  The waiver is a discretionary form of relief, so it is essential to submit strong evidence and be properly prepared by an experienced immigration lawyer.  Also, he would not want to have one of his past temper tantrums with Katy Perry and make sure he is on good terms with her so that maybe she will cooperate and support his waiver filing.

2. Given Russell Brand’s background as a top performer, he could just file an EB1 extraordinary ability.  He may want to file as soon as possible before the deadline to file the removal of conditions application just in case the EB1 extraordinary ability is not approved giving himself an opportunity to file the removal of conditions in option 1.

A point of this article is that divorce can have a significant impact on a person’s immigration status.  And it’s wise to consult with an Immigration Attorney about the effects, pro’s, and con’s of various options that may be available.

Amy Winehouse was an excellent performer.  She was nominated for 6 Grammy Awards and won 5 a huge achievement and one of international acclaim.  Amy was clearly tops in her field as an international performer, singer, and songwriter.  Unfortunately, Amy Winehouse had a troubled life, she died way too early at the age of 28 in July 2011.  She was arrested numerous times for drugs and was even allegedly videotaped smoking crack.  This is likely the reason why her visa was denied by the US Consulate in London so that she could perform at the Grammy’s and also be present while being nominated for 6 awards.

Two part test: Visa eligibility + admissibility
Given Amy Winehouse’s international acclaim as a performer, her substantial ties to the United Kingdom she was eligible for many different types of visas.  Just on the surface if an Examiner was told that Amy was nominated for the Grammy Awards it would be 90% of the battle for an approved visa.  So there had to be something more going on.  What was it?  While I don’t know the details, the big picture of most immigration applications, there are 2 main issues that need to be established:  First, the substantive merits of the case need to be established.  For example, in an H1B visa, it must be shown that the Beneficiary has the equivalent of a US Bachelor’s Degree; a job offer related to the bachelor’s degree, the offered wage must be above the prevailing wage, and the sponsoring entity must be able to afford the wage.  Or for a K1 visa which is a fiancé visa, the couple must show that both the US Citizen fiancé and overseas fiancé both are eligible to marry, they have seen each other within the last 2 years in person, they have a bona fide relationship, and they intend to marry within 90 days of entry into the US on the K1 Fiancé Visa.  Proving the substantive elements of the case is essential.  However, the second main issue is proving that the Applicant is admissible.  Or put another way, the Applicant must not be inadmissible.

Tiger Woods’ ex-wife Elin Nordegren
The first case study is Elin Nordegren, the former spouse of Tiger Woods.  As you know, Tiger Woods was the world’s number one golfer and may be among the best golfers that has ever played the game.  Tiger and his former wife Elin had an argument and Tiger Woods was found outside of his mansion wounded in his SUV.  There is speculation that Elin was chasing Tiger with a golf club.  I do not know the real facts or if this was true, there are different interpretations of what really happened.  However like in law school, let’s assume that Elin was chasing Tiger with a golf club and let’s take it further that Elin actually intended to strike Tiger Woods with the golf club and did actually strike him with the golf club.  Again these facts are just spin-offs for educational purposes.

What if the Police arrived, and one of the Officers was a huge Tiger Woods fan and was very disturbed by this and did not take the time to get all of the facts.  What if the Police Officer actually arrested Elin Nordegren.  Based on the above hypothetical, the actions could be attempted homicide.

J1 Visa | 2 year home residency requirement | Foreign Nanny
I do not know Elin’s past immigration history but I do know that she was Jasper Parnevik’s (a Swedish golfer playing on the PGA Tour) former Nanny.   As you know Elin is also from Sweden.  So let’s assume that Elin was on a J1 visa when she met Tiger Woods.

Time Out:  An important point for persons considering or already on a J-1 Visa.  J visas or Exchange Visitor Visas are for persons who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.  When a person enters the US to be a nanny, generally they are issued a J-1 Visa.  A common pitfall of a J-1 visa that many people do not know is that sometimes a J-1 visa is subject to a 2 year home residency requirement.  This means that unless the person is issued a waiver, they need to leave the US and spend 2 years in their home country after the visa is expired before they are allowed to pursue another US Immigration Status.

J1 Visa | Not subject to 2 year home residency requirement | Marriage based adjustment of status | Marriage Green Card
Let’s assume that Elin’s J visa is not subject to the home residency requirement.  She and Tiger fell in love (at least we hope), they married, and Tiger as a U.S. Citizen applied for Elin’s conditional resident status (conditional ‘green card”) via the adjustment of status application.  The standard for an adjustment of status case based on marriage to a US Citizen is showing the marriage is for love.  In other words, the couple has a genuine bona fide relationship in which they intend to spend their lives.  So let’s assume that Elin and Tiger married for love and Elin had a conditional resident status.

Crime of Moral Turpitude issues
Time In:  We assume that Elin was on conditional resident status, and she has been arrested.  If this were to happen, Elin could have had more problems than a divorce and an arrest.  When a conditional resident or a permanent resident (green card holder) is arrested, they need to really be careful that they are not convicted of a crime of moral turpitude.  This crime of moral turpitude can be a very sticky issue.  How do you define a crime of moral turpitude?  Well, that is a difficult task.  One court, Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), cert. denied 355 U.S. 892 (1958) has characterized moral turpitude as “a nebulous concept, which refers generally to conduct that shocks the public conscience.”

Murder and serious felonies are of course crimes of moral turpitude.  So what if Elin were convicted of attempted murder.  Could this be a crime of moral turpitude?  Very possibly, yes.  Or what if Elin was convicted of attempted assault?  Would this be considered a crime of moral turpitude.  It really depends on the statue and the criminal disposition.

Time Out:  If you are ever in this situation, it’s very important you discuss your situation with both a criminal lawyer and immigration lawyer and make sure they collaborate to give your case the best chance of not being a crime of moral turpitude.  What is the significance of a crime of moral turpitude?  Well, it could make you inadmissible and/or potentially removable and give you a date with Immigration court.  So if a person would like to stay in the US, it’s very important to understand the implications of a criminal conviction and how USCIS or an Immigration Court may interpret the criminal disposition.

Divorce before green card conditions are removed |Removal of Conditions Waiver
Time In:  Let’s assume further that Elin was not convicted of a crime and that her and Tiger Woods divorced, as they really did.  But let’s throw a hypothetical.  What if Tiger and Elin were married for less than 2 years when they divorced?  Well, when a US Citizen and a person that has entered the US legally adjusts their status to conditional resident status based on marriage to a US Citizen, the Applicant needs to apply to remove the conditions after 2 years.  Hence, their status was as a conditional resident.  The standard is whether the couple is still married and has a bona fide relationship.  If a couple divorces, the Applicant will likely need a waiver as they are not filing jointly.  The waiver must show that the parties entered into the marriage in good faith and the relationship was a good faith relationship.  At a minimum, the divorce, if occurring prior to the 2 years or removal of the conditions, would make Elin’s Immigration much more difficult, and at a minimum, more stressful.

Again the above are just hypothetical to help our readers realize that outside circumstances can affect their immigration status and future immigration cases.

If you have any questions about your real life immigration situation, feel free to contact Cipolla Law Group for a consultation.

Conditional Green card – Removal of Condition I-751
It is well known that an overseas person marrying a US Citizen may qualify for a green card.  Unfortunately, due to many fraudulent marriage or fiancee visa applications, the United States Citizenship and Immigration Services (USCIS) generally pays much closer attention to applications relating to fiancé visas and marriage green cards than other type of family based petitions. It becomes even more complicated if the couple is no longer together or is divorced after the conditional green card is issued and expired.  The purpose of the the need to remove the condition of the marriage based conditional green card is due to the governments concern of fraud.  The government knows many couples applying for green cards through a marriage and fiancé visa are solely for immigration status purposes and not for “love.”  Consequently, even the most legitimate relationships are scrutinized to determine if they really are marriages of love and not marriages of immigration purposes.

The worst case scenario is a legitimate marriage for love is denied and the couple is either required to live apart or move to another country.  Less harsh consequences are an application may be substantially delayed due to additional scrutiny causing stress in the couples lives and in some cases forcing the couple to put their lives on hold.  For these reasons, it is important to put your best case forward and show that your relationship and your marriage is for love and to save on reduce the risks of being delayed and put through significant amounts of stress.

Marriage and fiancé visas are an excellent way to bring your loved one to this country.  If done right, it will ensure that your next holiday season will be spent with your loved ones. Please contact the Cipolla Law Group today if you are seeking an experienced Chicago based K1 Fiancée Visa lawyer.

3/10 year Bar
Ok, but the story goes on. The child goes to school, works, does what other normal kids their age do. They might graduate college and then realize, uh oh, I don’t have authorization to work. Now what? Well, under current immigration laws they may be eligible for an H1B visa for them to work legally, but the old statutory bar (3/10 years) is going to kick in. So now they can’t work, at least legally. Or they may have already have been working, probably under a fake social security number. Then they meet the person of their dreams, who is likely a U.S. Citizen. They may eventually have children, or their spouse may say, lets get you legal. Let’s get your citizenship, surely it’s only a matter of filling out some forms. Well, not so fast, they are not eligible for a marriage green card or adjustment of status, well they may be eligible but they’re not admissible, due again to you guessed it, the statutory bar based on the “unlawful presence” inadmissibility ground.

Immigration says, well you shouldn’t have been in the US to begin with, like a child is going to be say, hey Mom and Dad, please don’t take me across the border. Or like the child is going to say at 18, alright Mom, Dad, family, friends, I’m going back to Mexico. I have no family or friends back there, no job, no school, but maybe see you sometime in the future. I’m not quite sure if I can make it back in the US to see you, and if you want to stay in the US you definitely can’t leave to come and see me.

Extreme Hardship Waiver I-601 application
So, after living some version of the above description, the Alien may come into our office and say, what kind of forms do I need to prepare. Let’s assume that they married a US Citizen. We would ask them a series of questions, ask if anything has ever been filed for them in the past. Likely no. We then suggest, well you might be eligible for an I-601 Extreme Hardship Waiver. We have to prove that it would cause “extreme hardship” for the US Citizen spouse to leave the US and go to your home country, likely Mexico. The test in so many words is, the more complicated your life, the less likely you’re going to be able to just leave, hence, extreme hardship. But here’s the catch, if USCIS does not agree that you have extreme hardship, whether you are in Mexico or we file here in the US (i.e. if the new proposed I-601 procedural law regarding Waiver of Inadmissibility for Unlawful Presence passes), you’re likely going to be separated. So we can’t really blame.

The blame game
So who can we blame? Can we blame the parents for taking the child in the US illegally? Maybe, yes likely a little bit. As desperate as their circumstances may or may not have been, they did break the law. If I were in the same situation, I may have broken the law as well. As an Immigration Lawyer, I don’t want to condone breaking the law. It also undermines people that make the effort to try and comply with the law and do things the right way. However, what if these persons have no alternatives, again, I might do the same thing if I had no other options.

We definitely can’t blame the child who now turned Alien as mentioned earlier.

Can we blame Congress? Yes, definitely. Should there be a Dream Act? Maybe. Should there be a guest worker program? Maybe, more likely yes. Would the current laws such as H1B Visas, E1 or E2 visas still be available to these persons? Yes, they should be. And so should other great categories such as EB 5 Investor Green Cards, Marriage Green Cards, Fiancée Visas and other relevant family based green cards. This article is not proposing anything. My job is to be an Immigration Attorney, an advocate under the laws that exist. Congress on the other hand has the job of making laws, laws that are relevant for the times. So my opinion, congress gets my vote for getting the blame of not having relevant laws for the times.

Based on last year’s statistic, there has been almost 300% increase of regular H1B petitions and 55% increase of the advanced degrees cap received by the USCIS in the month April. With that said, as of April 9, 2012, approx. 17,000 regular cap H1B petitions were filed compared to 2011 at the same time, there were only approximately 5,000 petitions filed. Granted that it is only 10,000 above prior year and significantly weaker than the bustling job market as in 2006 and 2007 where the cap was exhausted on April 1. However, the point to draw upon is that the trend is in the right direction and appears that jobs are growing faster than in 2011 as indicated by these early numbers. Based on the increase of H1B petitions compared to the same time last year, we would “project” that the H1b cap would be exhausted significantly quicker than the prior year. If you are considering a H1B petition for the FY2013 cap we would recommend implementing your plan and filing your petition ASAP so you do not miss the cap. Should you consider a H1B petition and are in need of an experienced H1B immigration lawyer, make sure you contact the Cipolla Law Group.

We often receive questions from clients who are currently on an H1B Visa – and his/her current employer/sponsor is considering moving his office to a different location. Often times, the H1B worker wants to know whether he/she can re-locate with the company under the current visa or whether a new application is need. Another more question we get is that when H1B employer wants his lawyer may want me to frequently work overseas, may I do this with an H1B?

Answer:
You ask great questions and I am glad you are seeking help from an immigration attorney in advance of just acting without finding out your options. Much of law is similar to preventative medicine and with careful planning, goals can often be accomplished. With that, let’s get started on your questions.

The answer to the first question of whether an H1B Visa holder is permitted to move with their employer is yes. As always in law, there is a but. The general rule is an H1B visa holder must work at the location listed on their Labor Condition Application (LCA) (part of the initial H1B application process). If the employer wants you to work at a location other than the one listed with the LCA, the employer must notify the United States Citizenship and Immigration Service as well as file a new Labor Condition Application with the Department of Labor. An exception to this would generally be if the new work place is within the area of intended employment listed on the Labor Condition Application, for example, an H1B employee’s job duties require substantial or constant travel.

The second question of whether an employee can perform work for an employer overseas is it depends. For starters, there are no limits in the amount of time an H1B holder can spend outside of the United States while the H1B Visa is valid. If you are travelling within the scope of duties listed on your H1B Visa application, then the USCIS may be less suspicious in whether you are still working for the H1B employer. As mentioned above, you can travel outside of the United States for as long as your employer permits you without terminating your employment. However, if you are not travelling on business outside of the United States for an extended period keep in mind that it may raise questions with the USCIS as well as Customs Border Patrol when re-entering the US in whether you are still working for the H1B employer.

Answer:
In short, yes. There are two major areas of immigration law, permanent resident and non-permanent resident immigration. Many of you know permanent residence to mean obtaining a green card, which can ultimately lead to United States Citizenship. Non-permanent residence (also known as a non immigrant visa) includes temporary visas such as tourist visas (B1 or B2 visa) or temporary work visas (H1-B temporary skilled worker visa) or even fiancé visas (k1 visa) and spouse visas (k3 visas).

Temporary visas can sometimes be a good start to legally living in the United States before applying for permanent residence. For example, a fiancé visa can quickly lead to a conditional green card through marriage. A marriage visa can also lead to a green card. Some temporary work visas can lead to a employment based green card through proper planning and application. However, it is always important to keep the issue of “preconceived intent” in mind.

Change of status from B visa to F1 student visa:

In some visa applications such as tourist visas (B-2 Visa) the visa applicant’s intent must be such that they intend on returning home and do not intend on staying in the US. When an applicant tries to adjust status from a B2 visa (tourist visa) to a F1 Visa (Student visa), the USCIS will look very closely at the applicant’s intent at the time of filing for a tourist visa application. If the USCIS concludes that the B visa holder intended to gain admission to the U.S. as a student as opposed to visiting the U.S. as a tourist, the change of status to F-1 student status will be rejected and a visa fraud will be presumed. Moreover, the timing of applying for a change of status application plays some significant role to the outcome of the change of status application. Sometimes, the later you file a change of status application upon entry on a tourist B visa, the more likely the USCIS approves the application. On the other hand, if a request to change from B-2 to F-1 occurs within 60 days of entry into the US, USCIS will likely interpret the change of status as preconceived intent, thus denying the application.

Change of status from F1 Student visa to H1B visa:

Another common preconceived intent is adjusting status from F-1 Student Visa status to permanent residence or green card status immediately upon entry into the US on a student visa. In contrast, a work visa such as a H1-B visa has “dual intent” allowing a H1-B holder to adjust status to lawful permanent resident status. Common ways to obtain a green card from an H1-B are through an employment based green card or marrying a US citizen and adjusting status as an immediate relative. Once you are a lawful permanent resident after waiting the requisite amount of time and complying with other necessary requirements you will eventually be able to naturalize to a US citizen.

The main point is that there is much interplay between non immigrant (temporary visas) and immigrant visas (permanent residence – green cards). Through proper planning and application, your immigration goals can be achieved, sometimes all at once, and sometimes one step at a time. But how you execute the plan is as important as the plan.

H1-B Visas are generally valid for a period of 3 years and may be renewed once for a total of six years. Recipients of H1-B Visas are generally permitted to bring their spouse and minor single children; however the accompanying spouse and children are not permitted to work unless they independently qualify for a work visa.

Obtaining H1-B Visas is very competitive as only 85,000 visas are available each year, 20,000 of which are exclusively reserved for people with a minimum Master’s level degree from a United States Academic Institution. H1-B Visa applications are accepted beginning April 1 of each year for work to begin on October 1 of that same year. Historically, there were usually significantly more H1-B applicants for available H1-B Visas each year. For instance, by April 3, 2007, over 119,000 H1B applications were received for 65,000 available visas. Although the economy has not been as strong in recent years, however with the recent improved unemployment rates, it is still advisable to apply early and put your best case forward. If you have a job offer and considering applying for a H1-B visa, please contact us today for a H1-B evaluation.