Affidavit of Support to Sponsor Alien Relatives

AFFIDAVIT OF SUPPORT TO SPONSOR ALIEN RELATIVES

Lal Varghese, Attorney at Law, Dallas
The affidavit of support is legally required for many family-based and some employment based immigrants to show they will have adequate means of support after immigration to the U.S. Generally, the following intending immigrants need an Affidavit of Support to be filed before they can be issued with visas.
• Applicants for family-based immigrant visas, including certain orphans.
• Applicants for employment-based immigrant visas where a relative filed the immigrant visa petition or has a 5 percent or greater ownership interest in the business that filed the petition
The National Visa Center (NVC) provides instructions to the petitioner/sponsor at the appropriate time when the approved petition is ready to be processed by reaching the priority date if any. The petitioner/sponsor must complete and sign the appropriate Affidavit of Support form. Incomplete or incorrectly assembled forms will not be accepted. The completed forms and supporting documents must be sent to the National Visa Center. A sponsor must be at least 18 years old and either an American citizen or a lawful permanent resident (LPR). The sponsor must also have a domicile (residence) in the United States. Domicile is a complex concept and must be evaluated on a case by case basis by looking in to the details. To qualify as a sponsor, a petitioner residing abroad must have a principal residence in the U.S. and intend to maintain it indefinitely. Lawful permanent resident (LPR) sponsors must show they are maintaining their LPR status. Many U.S. citizens and lawful permanent residents reside outside the United States on a temporary basis. "Temporary" may cover an extended period of residence abroad. The sponsor living abroad must establish the following in order to be considered domiciled in the United States:
• He/she left the United States for a limited and not indefinite period of time,
• He/she intended to maintain a domicile in the United States, and
• He/she has evidence of continued ties to the United States.
A U.S. citizen or lawful permanent resident (LPR) petitioner who is not domiciled (living) in the United States cannot be a sponsor. The law requires that sponsors be domiciled (live) in any of the United States, the District of Columbia, or any territory or possession of the United States. If the petitioner does not have a domicile in the United States, a joint sponsor cannot file an I-864 and rectify the domicile issue of the petitioner. The petitioner must meet all the requirements to be a sponsor (age, domicile and citizenship), except those related to income, before there can be a joint sponsor. The following types of employment abroad may be considered as maintaining domicile in United States.
• Employment temporarily stationed abroad with the U.S. government
• Employment temporarily stationed abroad with an American institution of research recognized by the Attorney General
• Employment temporarily stationed abroad with an American firm or corporation or its subsidiary engaged in whole or in part in the development of foreign trade and commerce with the United States
• Employment temporarily stationed abroad with a public international organization in which the United States participates by treaty or statute
• Employment temporarily stationed abroad with a religious denomination/group having a genuine organization within the United States.
• Employment temporarily stationed abroad as a missionary by a religious denomination/group or by an interdenominational mission organization within the United States.
There may be other circumstances in which a sponsor can show that his or her presence abroad is of a temporary nature, and the sponsor has a domicile in the United States. The sponsor must satisfy the consular officer that he/she has not given up his/her domicile in the United States and established his/her domicile abroad. When a sponsor has clearly not maintained a domicile in the United States, he/she must re-establish a U.S. domicile to be a sponsor. The aspiring sponsor may take steps, including the examples given below, to show that the United States is his/her principal place of residence.
• Find employment in the United States
• Secure a residence in the United States
• Register children in U.S. schools
• Relinquish residence abroad
• Other evidence of a U.S. residence
If the sponsor establishes U.S. domicile, it is not necessary for the sponsor to go to the United States before the sponsored family members. However, the sponsor must return to the United States to live before the sponsored immigrant may enter the United States. The sponsored immigrant must enter the U.S. with or after the sponsor also. If the sponsored immigrant uses federal means tested public benefits, the sponsor must repay the cost of the benefits. The following types of assistance are not considered means tested public benefits and do not have to be repaid.
• Emergency Medicaid
• School lunches
• Immunizations and treatment for communicable diseases
• Student assistance to attend colleges and institutions of higher learning
• Some kinds of foster care or adoption assistance
• Job training programs
• Head start
• Short-term, non-cash emergency relief (To be continued……………..)

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You may visit our website or our blog for more articles at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com for more information about other related immigration matters.

Removing CR Status of Spouses of U. S Citizens

REMOVING CONDITIONS ON PERMANENT RESIDENCE BASED ON MARRIAGELal Varghese, Attorney at Law, Dallas
Permanent residence status is conditional if it is based on a marriage that was less than two years old on the day the alien spouse was given permanent residence status. The alien spouse is given conditional resident status on the day such person is lawfully admitted to the United States on an immigrant visa or adjustment of your status to permanent residence. An alien spouse’s status is conditional, because such person must prove that he/she did not get married to evade the immigration laws of the United States. To remove these conditions the alien spouse must file a joint petition to remove conditions on residence along with her USC/LPR spouse with all supporting documents to prove that the marriage is genuine and faithful and are still living together as husband and wife.
Generally, the alien spouse may apply to remove his/her conditions on permanent residence if:
• He/she is still married to the same U.S. citizen or permanent resident after 2 years (the children may be included in the application if they received their conditional resident status at the same time that the aliens spouse did or within 90 days)
• You are a child and cannot be included in the application of your parents for a valid reason
• You are a widow or widower of a marriage that was entered into in good faith
• You entered into a marriage in good faith, but the marriage was ended through divorce or annulment
• You entered into a marriage in good faith, but either you or your child were battered or subjected to extreme hardship by your U.S. citizen or permanent resident spouse
• The termination of your conditional resident status would cause extreme hardship to you
You and your spouse must apply together to remove the conditions on your residence by filing Form I-751. You should apply during the 90 days before your second anniversary as a conditional resident. The expiration date on your green card is also the date of your second anniversary as a conditional resident. If you do not apply to remove the conditions in time, you could lose your conditional resident status or the same can be terminated by the USCIS and be removed (deported) from the United States. If you are no longer married to your spouse, or if you have been battered or abused by your spouse, you can apply to waive the joint filing requirement. In such cases, you may apply to remove the conditions on your permanent residence any time after you become a conditional resident, but before you are removed from the country.
If your child received conditional resident status within 90 days of when you did, then your child may be included in your application to remove the conditions on permanent residence. Your child must file a separate I-751 application if your child received conditional resident status more than 90 days after you did. The Immigration and Nationality Act (INA) governs immigration in the United States. For the part of the law concerning conditional resident status based on marriage, please see Section 216 of the INA. The specific eligibility requirements and procedures for removing conditions on permanent resident status are included in the Code of Federal Regulations [CFR] at 8 CFR Section 216.
If you fail to properly file Form I-751 within the 90-day period before your second anniversary as a conditional resident:
• Your conditional resident status will automatically be terminated and we will begin removal proceedings against you
• You will receive a notice from USCIS informing that you have failed to file the petition to remove the conditions
• You will receive a Notice to Appear at a hearing before the Judge. At the hearing you may review and rebut the evidence against you. You are responsible for proving that you complied with the requirements and the USCIS is not responsible for proving that you did not comply with the requirements.
The Form I-751 can be filed after the 90-day period if you can prove in writing to the USCIS Service Center Director that there was good cause for failing to file the petition on time. The director has the discretion to approve the petition and restore your permanent resident status. If you are unable to apply with your spouse to remove the conditions on your residence, you may request a waiver of the joint filing requirement. You may request consideration of more than one waiver provision at a time.
You may request a waiver of the joint petitioning requirements if:
• Your deportation or removal would result in extreme hardship
• You entered into your marriage in good faith, and not to evade immigration laws, but the marriage ended by annulment or divorce, and you were not at fault in failing to file a timely petition
• You entered into your marriage in good faith, and not to evade immigration laws, but during the marriage you or your child were battered by, or subjected to extreme cruelty committed by your U.S. citizen or permanent resident spouse, and you were not at fault in failing to file a joint petition
If you are still married, but legally separated and/or in pending divorce or annulment proceedings, and:
• You filed a waiver request. The USCIS will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment (if applicable).
• You filed a Form I-751 petition jointly. USCIS will issue a request for evidence (RFE) specifically asking for a copy of the final divorce decree or annulment and a statement that you would like to have your joint filing petition treated as a waiver.
Upon receipt of the final divorce decree or annulment within the specified time period, the USCIS will amend the petition, to indicate that eligibility has been established for a waiver of the joint filing requirement based on the termination of the marriage. As a permanent resident, you should have received a green card. This card will continue to prove that you have a right to live and work in the United States permanently. If you file Form I-751 on time, the USCIS will extend your conditional resident status until a decision has been made on your application. You will be sent a notice reflecting this. An interview may be required to demonstrate eligibility to remove the conditions on your residence. If an interview is required you will receive an appointment notice telling you when and where to appear for your interview.
If your application to remove the conditions on your permanent residence is denied, you will receive a letter that will tell you why the application was denied. The process to remove you from the country will begin as soon as your application is denied. You will be allowed to have an immigration judge review the denial of your application during removal proceedings. During this review, we must prove that the facts on your application were untruthful and/or that your application was properly denied. If the immigration judge decides to remove you from the country, you may appeal this decision. Generally, you may appeal within 30 days after the immigration judge decides to remove you from the country. After your appeal form and a required fee are processed, the appeal will be referred to the Board of Immigration Appeals in Falls Church, VA.

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You may visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com
for more information about other related immigration matters.

Retrogression of Visas from India

VISAS WENT BACK (RETROGRESSION) FOR INDIA FOR ALL CATEGORIES
Lal Varghese, Attorney at Law, Dallas

The U. S. Department of State (DOS) is responsible for issuance of visas by administering the provisions of the Immigration and Nationality Act (INA) relating to the numerical limitations on immigrant visa issuances. There is fixed quota of visas for each country for each category both under family category and employment category for each immigration fiscal year. The immigration fiscal year begins on October 1st and ends on September 30th of each year, which means the quota for each year will be released on October 1st of each year to be allotted throughout that year until September 30th, in each month for each category based on the basis of the priority date of the applicants waiting in line for visas from each country.

At the beginning of each month, the Visa Office (VO) at the DOS receives a report from each consular office from around the world listing total number of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped by foreign state chargeability/preference/priority date without revealing the names of the applicants. During the first week of each month, this documentarily qualified demand is tabulated. VO subdivides the annual preference and foreign state limitations specified by the INA into monthly allotments. The totals of documentarily qualified applicants, which have been reported to VO, are compared each month with the numbers available for the next regular allotment. The determination of how many numbers are available requires consideration of several of variables, including: past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements. Once this is done, the cut-off dates are established and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current". For example: If the monthly allocation target is 3,000 and the VO has only demand for 1,000 applicants the category can be "Current”. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example: If the monthly target is 3,000 and DOS has demand for 8,000 applicants, then VO would need to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant. Only persons with a priority date earlier than a cut-off date are entitled to allotment of a visa number. The cut-off dates are the 1st, 8th, 15th, and 22nd of a month, since VO groups demand for numbers under these dates. (Priority dates of the first through seventh of a month are grouped under the 1st, the eighth through the fourteenth under the 8th, etc.)

VO attempts to establish the cut-off dates for the following month on or about the 8th of each month. The dates are immediately transmitted to consular posts and Citizenship and Immigration Services (USCIS), and also published at its web site www.travel.state.gov. Visa allotments for use during that month are transmitted to consular posts. USCIS requests visa allotments for adjustment of status cases only when all other case processing has been completed. If there is more demand for visas from documentarily qualified applicants than the allotted visas in a year, the VO retrogresses the cut-off dates in an attempt to hold issuances within the annual numerical limits. In certain cases some categories will become unavailable ("U") when the annual numerical limit has been reached for that categories.

Applicants entitled to immigrant status become documentarily qualified at their own initiative and convenience. By no means has every applicant with a priority date earlier than a prevailing cut-off date been processed for final visa action. On the contrary, visa allotments are made only on the basis of the total applicants reported documentarily qualified each month. Demand for visa numbers can fluctuate from one month to another, with the inevitable impact on cut-off dates. If an applicant is reported documentarily qualified but allocation of a visa number is not possible because of a visa availability cut-off date, the demand is recorded at VO and an allocation is made as soon as the applicable cut-off date advances beyond the applicant's priority date. There is no need for such applicant to be reported a second time. Visa numbers are always allotted for all documentarily qualified applicants with a priority date before the relevant cut-off date, as long as the case had been reported to VO in time to be included in the monthly calculation of visa availability. Failure of visa number receipt by the overseas processing office could mean that the request was not dispatched in time to reach VO for the monthly allocation cycle, or that information on the request was incomplete or inaccurate.

If we examine closely the visa allocation under F-4 category (brothers and sisters of U. S citizens) from India since 1992 it can be seen that only four times the visa numbers had been retrogressed. Since 1992 the first retrogression occurred in the month of September 1996 at which time visas were retrogressed from Oct. 08, 1984 to July 01, 1984. The second retrogression occurred in 2003 July when visas retrogressed from July 08, 1991 to March 22, 1991. Another sudden retrogression occurred again in the month of September in 2003 at which time the visas retrogressed from May 22, 1990 to January 01, 1990. After 8 years at present in February 2011 the largest retrogression occurred where visas went back from current level of January 01, 2002 to January 01, 2000. The above is only for F-4 category from India. The retrogression happened in almost all other family categories and also for all other countries including China, Philippines and Mexico along with India the countries from where majority of the immigrants are coming to United States. There is no way of predicting when the visas will come back to the level from where it was retrogressed. But the National Visa Center (NVC) under the DOS will continue to accept the visa fee and affidavit of support fee, affidavit of support and DS forms and original documents, but will hold the files until the visa becomes available to schedule the interview at the consulate. It is to be remembered that in order to be qualified for allotment of visas and for scheduling the interview the applicants must be documentarily qualified. It is always advisable to contact experienced immigration attorneys to process your approved petitions at NVC since all paper works are done at NVC including scheduling of interview at the consulates.

Disclaimer: Lal Varghese, Attorney at Law does not claim authorship for above referenced information. Lal Varghese, Attorney at Law or the publisher is not responsible or liable for anything stated above, since it is generalized information about the subject matters collected from various sources including Department of Homeland Security, Department of Justice, State Department, Federal Register, and American Immigration Lawyer’s Association (AILA) Advocacy Center, and other legal sources. For individual cases and specific questions you are advised to consult an attorney of your choice or contact the agencies mentioned above. You may visit our website at: www.indiaimmigrationusa.com or www.indiaimmigrationusa.blogspot.com
for more information about other related immigration matters.