Pitfalls When Sponsoring a Parent for a Green Card, Updated

Editor’s Note: this post was originally published in April, 2019 and has been completely updated for accuracy and comprehensiveness.

Are you looking to sponsor a parent for a green card? The process can be trickier than you think.

In addition to all of the possible issues that can come up when sponsoring any relative for a green card (see our blog post “Why you need a lawyer for your marriage-based green card case” dated May 24th, 2018), there are a number of things to watch out for when sponsoring a parent specifically.

1. You must be a U.S. citizen to sponsor a parent for a green card.

A common misconception is that a lawful permanent resident can sponsor a parent for a green card. That is not the case. You must first obtain U.S. citizenship in order to sponsor your parent.

2. A lawful entry to the U.S. is generally required for someone residing in the U.S. to be eligible to obtain a green card.

Commonly a parent of a U.S. citizen entered the U.S. many years ago, without a visa. In this scenario, that parent is not eligible for a green card through sponsorship by a U.S. citizen child, unless they can prove substantial hardship to a qualifying U.S. citizen or permanent resident relative. Because a child is not considered a qualifying relative, this is impossible in many cases.

If this is true for your parent, then there may be another way for them to get their green card.

3. If your parent entered the U.S. lawfully as a visitor, but has only been here a short time, their intent at entry will be scrutinized.

Entering the U.S. with a visitor’s visa with the intent to remain permanently can be considered visa fraud. In this internet age, the U.S. government has access to more information than ever about a green card applicant, including social media accounts. It is important to consult an experienced immigration attorney to ensure that there is no indication of a misrepresentation at the time of entry.

4. Immigration officers now have more discretion in deciding whether to approve a green card application, and are directed to consider all possible factors including prior immigration violations, history of education and employment in the US, and current US investment or property ownership.

This may make the process more challenging for an elderly parent of a US citizen who has possibly overstayed a visa in the US and has never worked or owned property in the US.

How can Hurtubise Weber Law help? We have extensive experience representing U.S. citizens who sponsor their parents for green cards.

Contact us for a free 15 minute phone call to learn more about the process: theteam@huwelaw.com or 415-496-9040.

New Green Card Public Charge Rule: Are You Prepared?

A new government regulation that will affect green card applicants is scheduled to go into effect on October 15th. Here is what you need to know.

Under immigration law, in general someone who is deemed likely to become a "public charge" is barred from receiving a green card.

What is a public charge? The current rule defines a public charge as someone likely to become primarily dependent on the government for income support. The new rule redefines a public charge as a person likely to receive "public benefits" for more than 12 months over any 36-month period in the future.

What are considered "public benefits" under the new rule? Any federal, state, local, or tribal cash assistance for income maintenance (e.g. SSI, TANF), federal, state, and local cash benefits programs for income maintenance, SNAP, Section 8 housing and public housing under Section 9, and Medicaid (with certain exceptions).

How will the government determine whether someone is likely to receive public benefits for more than 12 months over any 36-month period in the future? A totality of circumstances test will be used. Factors considered will be age, health, family status, education and skills, and assets, resources, and financial status, taking into account a broad range of positive and negative factors. Heavily weighted negative factors will include receipt of public benefits in the past (but after the date the rule goes into effect). Heavily weighted positive factors will include having a high household income (at least 250% of the federal poverty level) and having private health insurance.

Will this change mean more paperwork? Yes. There will be additional paperwork required in order for the government to assess the likelihood of a green card applicant becoming a public charge.

Will the government consider benefits that an applicant received before the new rule goes into effect? No. The government will not consider benefits received before the new rule goes into effect when using the totality of circumstances test.

Is this change certain to go into effect on October 15th? No. Nearly 20 states have filed lawsuits attempting to halt the implementation of the new rule. It is possible that a court will issue an injunction preventing the rule from going into effect on its scheduled date.

If I qualify to apply for a green card now, should I submit my application prior to October 15th? Yes! You can avoid the new rule entirely if you submit your green card application before it goes into effect. Contact us
today at 415-496-9040 or theteam@huwelaw.com for a free 15 minute phone call to get started.

Can you apply for a green card next month? Check the March Visa Bulletin!

Have you been “waiting in line” for a green card to become available in your preference category? You can now check the U.S. Department of State Visa Bulletin for March 2019 to see if your priority date will be current next month.

USCIS has determined that in March the Dates for Filing Chart must be used for family-sponsored green cards, and the Final Action Dates Chart used for employer-sponsored green cards.

To view the full Bulletin, please visit:

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-march-2019.html

Need help interpreting the Bulletin or preparing and filing your green card application? Contact us at theteam@huwelaw.com or 415-496-9040 today.

Why you need a lawyer for your marriage-based green card case

One question we are frequently asked during our initial legal evaluations for cases involving “green cards” through marriage is: Why do I need a lawyer? For many reasons, a lawyer is necessary for the green card process.

You may not be eligible for a marriage-based green card following the traditional route.

The law and the government’s policies are complex.

For example, any prior criminal history, immigration violations (such as overstaying a past visa or working without authorization), information you listed on a mortgage, school, or job application, or a denial of a past visa or green card application, can impact your eligibility for a green card now.

If you are not eligible to complete the process the usual way, there may be alternative options for you. To avoid serious consequences, you need to have a plan in place before submitting any applications to the government.

The green card application process is not just about filling out forms.

This is a common misconception. The process is about knowing the law, the government’s policies, and how the bureaucracy works, and submitting the answers and evidence that the government expects to see. The government requires strict compliance with the rules, and unfortunately, they do not always make the rules clear.

Evidence is key. The government wants to see documentary evidence that your relationship is real. This can be a problem for all couples, especially those who have not been together long, have different cultural backgrounds or a significant age difference, who have lived apart, who do not share finances, etc.

Details matter. Your situation may seem similar to that friend of yours who already went through the process, but minor differences may make or break your case. You may think you know how to answer a question on a form or at the interview, but without a thorough knowledge of the law, you may get into trouble.

Preparation for and representation at the interview are important. If you know what to expect, you will be more relaxed, in the best position to answer questions and avoid any misconceptions, and in good hands if something goes wrong.

The law and the government’s policies are changing rapidly in a post-Trump world.

The experience your friend had with the process a year ago may not be the experience you will have now.

What if I do not hire a lawyer?

·        If you were not eligible for a green card in the first place, you could be placed into deportation proceedings

·        Your process could be delayed for months or even years

·        A stressful second interview may be scheduled for you and your spouse, when one could have been avoided

·        Your application could be denied on a technicality, and you would need to start again from scratch (including paying the substantial government filing fees again)

·        Your application could be denied due to a misunderstanding, and you could be placed into deportation proceedings

We are here to help. To schedule an initial legal evaluation, please contact us at theteam@huwelaw.com, or 415-496-9040.

TPS to end for Honduras

On May 4, 2018, the U.S. Department of Homeland Security (DHS) announced that it would be terminating the TPS designation for Honduras. The approximately 90,000 Honduran citizens who are currently present in the U.S. in TPS have until January 5, 2020 to either depart or to find another way to remain here lawfully under our immigration laws. You can read more here:

https://www.cnn.com/2018/05/04/politics/immigration-tps-honduras/index.html

For someone from Honduras who has been residing in the U.S. in TPS for decades, this may be a terrifying prospect. The good news is that other legal immigration avenues may be available for a person in this situation. For example, if an individual is married to a U.S. citizen, one option may be an application for permanent residency (a “green card”) with the spouse serving as the sponsor. If the individual has been a victim of crime while in the U.S., they may be eligible for a U visa, which is a path to a green card.

It is important to meet with an immigration attorney as soon as possible to learn about the viability and risks and benefits of other immigration paths. Please contact us at theteam@huwelaw.com or 415-496-9040 to schedule an initial legal evaluation.