Month: June 2024

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The American Dream: A Dream Worth Chasing

The American Dream - A Dream Worth Chasing
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Dear TLAW Readers,

This month, we want to explore a topic close to the hearts of many in our community: The American Dream and its meaning for immigrants.

For generations, the American Dream has been a beacon of hope, symbolizing the potential for a better life built through hard work and perseverance. Immigrants, especially those from my native Philippines (“kababayan”), have been drawn to this ideal, seeking freedom from hardship and the chance to build a brighter future.

The Evolving Dream of Our Ancestors
For our parents and grandparents, the American Dream was often rooted in escaping challenges like political turmoil, economic struggles, or social limitations. Their pursuit focused on three key areas:

  • Economic Stability: Arriving with limited resources, many immigrants took factory, farm, or labor jobs, gradually building a foundation for their families.
  • Education for the Next Generation: Though their own opportunities might have been limited, education was seen as the key to a better future for their children.
  • Community and Integration: Immigrants formed supportive communities, preserving their cultural heritage while integrating into American society.

The Modern Landscape and New Challenges
While the core elements of the American Dream remain, the context for today’s immigrants has shifted. We face both new opportunities and challenges:

  • Technology and Globalization: Many immigrants arrive with advanced skill sets, finding opportunities in tech, healthcare, and other specialized fields fueled by globalization.
  • Educational Access: While education remains critical, modern immigrants may seek advanced degrees and specialized training to compete in a globalized economy.
  • Policy and Integration: Immigration policies and societal attitudes significantly impact the immigrant experience. Legal status and social acceptance are crucial for pursuing the American Dream.

Can All Reach the Dream?
The attainability of the American Dream is a complex issue. While it remains a powerful motivator, several factors influence accessibility:

  • Economic Inequality: Rising economic inequality can make achieving financial stability and upward mobility more difficult.
  • Policy Environment: Immigration policies like visa regulations, work permits, and pathways to citizenship significantly affect integration and success.
  • Social Factors: Discrimination, access to social support systems, and the strength of community networks all play crucial roles in the immigrant experience and the ability to realize the Dream.

A Dream Worth Chasing
Despite the challenges, the American Dream remains a powerful motivator for immigrants. As an immigration attorney for over three decades, I’ve witnessed the unwavering determination of my “kababayan” to achieve a better life for themselves and their families. This is not just about
ambition; it’s about a burning desire to build a brighter future for generations to come.

The American Dream may have evolved, but the core principles of opportunity and advancement persist. We, at Tancinco Law, P.C., are committed to helping you navigate the legal landscape and move toward achieving your own unique American Dream.

Sincerely,
Atty. Lou Tancinco

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Understanding Your Responsibilities Under USCIS’ Affidavit of Support

Understanding Your Responsibilities Under USCIS’ Affidavit of Support
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Are you a U.S. citizen or permanent resident planning to sponsor or co-sponsor an eligible family member for a green card? If so, you’ll need to sign an Affidavit of Support, known as Form I-864. But what exactly does this entail, and what are your responsibilities? Let’s break it down.

What Is Form I-864?
By signing Form I-864, you’re making a legally binding promise to financially support the person you’re sponsoring. This ensures they won’t have to rely on government assistance.

Who Must Sign?
Primary Sponsor: The main sponsor must be a U.S. citizen or permanent resident petitioning for the immigrant’s green card.
Joint Sponsor: If the primary sponsor’s income doesn’t meet the requirements, a joint sponsor is needed. This person shares the same responsibilities as the primary sponsor.

Sponsor Eligibility
To be a sponsor, you must:

  • Be at least 18 years old.
  • Be a U.S. citizen or permanent resident.
  • Have an income at least 125% above the Federal Poverty Guidelines.

Key Responsibilities
As a sponsor, you must ensure the immigrant maintains an income of at least 125% of the Federal Poverty Guidelines. If their income falls below this level, you’re responsible for providing financial support.

Financial Risks and Considerations
Legal Consequences: If you fail to provide support, the sponsored person can sue you. You may also be liable for court and legal fees.
Bankruptcy: Declaring bankruptcy does not absolve you of your obligations under Form I-864.
Government Benefits: You must repay any means-tested benefits the sponsored person receives, such as Medicaid, SNAP, TANF, or SSI. You’re not responsible for reimbursing non-means-tested benefits like emergency medical services or unemployment benefits.

When Do Your Sponsorship Responsibilities End?
Your financial duties as a sponsor conclude when any of the following occurs:

  • The individual gains U.S. citizenship.
  • They complete 40 quarters of work (about ten years).
  • They permanently leave the United States.
  • They are deported but gain U.S. residency again through another sponsor.
  • They pass away.

Continuing Obligations After Divorce
Divorce does not end your responsibilities under Form I-864. Courts generally do not recognize private agreements, such as pre-marital, post-marital, or divorce contracts, as valid reasons to avoid these obligations.

Withdrawing Sponsorship
You may withdraw your sponsorship before the green card application is approved. Once permanent residency is granted, your obligations are fixed unless they end under one of the specified conditions.

Address Change Notification
You must report any address changes within 30 days by submitting Form I-865 to USCIS to avoid fines of up to $5,000.

Understanding Your Commitment
Signing Form I-864 carries significant legal responsibilities. Make sure you understand these obligations before proceeding. Consider consulting a lawyer if necessary to ensure the person you sponsor can support themselves without public assistance.

This article is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this article without seeking the advice of a competent, licensed immigration attorney.

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Exploring Alternatives to the H-1B Visa

Exploring Alternatives to the H-1B Visa
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The H-1B visa is a popular choice for U.S. work visas, allowing individuals to work in specialty occupations. However, due to the high demand, many applicants do not secure an H-1B visa through the annual lottery. If you weren’t selected in the H-1B Cap Lottery for Fiscal Year 2025, which closed on March 25, 2024, and announced results on April 1, 2024, there are still several viable alternatives to explore.

1. H-1B Work Authorization for Cap-Exempt Employers

Not all H-1B employment falls under the annual cap. Certain employers can file cap-exempt petitions at any time, including:

  • Institutions of higher education or affiliated nonprofit entities
  • Nonprofit research organizations
  • Government research organizations

Additionally, cap-subject employers can hire H-1B visa holders who also work for a cap-exempt employer, provided they maintain their cap-exempt employment throughout the H-1B validity period.

2. F-1 Work Authorization Options

International students in the U.S. might extend their employment authorization through Optional Practical Training (OPT):

  • Non-STEM graduates can receive up to 12 months of work authorization post-graduation.
  • STEM graduates can receive up to 36 months of work authorization, provided their employer is enrolled in E-Verify.

Another option is enrolling in a new university program to work under F-1 Curricular Practical Training (CPT). However, this route carries risks, including potential requests for additional evidence in future H-1B petitions. It’s crucial to thoroughly research and maintain documentation of your student status.

3. Dependent Work Authorization Tied to a Spouse’s Employment

Spouses of visa holders such as E-2, E-3, H-1B, and L-1 may be eligible for work authorization:

  • Spouses of E and L visa holders are automatically authorized to work as indicated on their I-94 document.
  • Spouses of H-1B visa holders (H-4 visa) can work if the H-1B holder has reached a significant milestone in the green card process and the H-4 spouse has applied for an Employment Authorization Document (EAD).

4. Country-Specific Visa Categories

Citizens of countries with specific trade agreements with the U.S. can benefit from specialized work visas:

  • TN visas for Canadians and Mexicans in specified professional occupations.
  • H-1B1 visas for Chileans and Singaporeans in specialty occupations.
  • E-3 visas for Australians in specialty occupations.

These visas typically do not lead directly to green cards, so continuing to enter the H-1B lottery is advisable for long-term U.S. residency.

5. E-1/E-2 Visas for Treaty Traders & Investors

Nationals from countries with U.S. treaties can apply for E-1 (treaty trader) or E-2 (treaty investor) visas. These visas apply to executives or specialized employees of companies with the same nationality as the applicant. However, like other visas, they don’t directly lead to green cards, so participating in the H-1B lottery is still recommended.

6. O-1 Visa for Individuals with Extraordinary Ability

Individuals with exceptional talent in sciences, education, arts, business, or athletics may qualify for an O-1 visa. This category includes specific provisions for PhDs in STEM fields. Similar to other alternatives, this visa doesn’t provide a clear path to a green card.

7. L-1 Visa for Intracompany Transferees

Employees of international companies with U.S. branches might qualify for an L-1 visa if:

  • The U.S. and foreign entities have a qualifying relationship.
  • The applicant has worked for the foreign entity for at least one year in the past three years.
  • The employment is in a managerial or specialized knowledge role.

8. Green Card Options

Though not an immediate solution, applying for a green card can lead to long-term U.S. work authorization. Some categories allow self-petitioning without employer sponsorship:

  • EB-1 for individuals of extraordinary ability, requiring proof of sustained acclaim.
  • EB-2 with a National Interest Waiver for individuals with advanced degrees or exceptional abilities, demonstrating that their work benefits the U.S.

By understanding these alternatives, individuals not selected in the H-1B lottery can still find viable paths to work and remain in the U.S.

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Increased, Reduced, and Waived Naturalization Fees: What You Need to Know

Increased, Reduced, and Waived Naturalization Fees: What You Need to Know
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Effective April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) implemented new filing fees for naturalization applications. The standard fee for paper filings has risen to $760, while online filings now cost $710. Alongside these changes, USCIS has updated the criteria for reduced fees and fee waivers, potentially expanding access to naturalization for eligible applicants.

New Fee Structure and Reduced Fees

The 2024 fee rule introduces a significant change: applicants now have the opportunity to pay a reduced naturalization fee, which is 50% of the standard fee, amounting to $380. This reduction aims to make the naturalization process more accessible to a broader range of individuals who meet specific eligibility criteria.

Full Fee Waiver: Eligibility Criteria

For those facing financial difficulties, a complete waiver of the filing fee is available. To qualify for this 100% fee waiver, applicants must meet one of the following criteria:

  1. Receipt of Means-Tested Benefits: Applicants who receive federal, state, local, or tribal benefits that are determined based on income and resources may qualify for a full fee waiver. These means-tested benefits consider an individual’s financial situation in determining eligibility.
  2. Income Below 150% of Federal Poverty Guidelines: Applicants whose income is at or below 150% of the federal poverty guidelines can also qualify for a full fee waiver. The poverty guidelines vary based on household size, and specific income thresholds must be met to qualify.
  3. Extreme Financial Hardship: USCIS defines extreme financial hardship as a situation where applicants need almost all of their current income and liquid assets to meet ordinary and necessary living expenses. Examples of such hardship include:
    • Medical illness
    • Unemployment
    • Eviction or homelessness
    • Natural disasters
    • Military deployment of a spouse or parent
    • Divorce or death of a spouse
    • Other unexpected life events that limit the ability to cover living expenses

Additionally, fee exemptions have been expanded to include applicants and their derivatives seeking relief under the Violence Against Women Act (VAWA), U Nonimmigrant status, T Nonimmigrant status, and Special Immigrant Juvenile Status (SIJ).

2024 Federal Poverty Guidelines

To understand eligibility for fee waivers and reductions, it’s essential to refer to the 2024 federal poverty guidelines:

# of Persons in Household
Poverty Guidelines
0-149% (Fee Waiver)150-400% (Reduced Fee)
1$15,060$22,439.40$60,240
2$20,440$30,455.60$81,760
3$25,820$38,471.80$103,280
4$31,200$46,488.00$124,800
5$36,580$54,504.20$146,320
6$41,960$62,520.40$167,840
7$47,340$70,536.60$189,360
8$52,720$78,552.8$210,880

For households with more than eight persons, add $5,380 for each additional person to the base poverty guideline before applying the respective calculations.

Conclusion

Understanding the new fee structure and eligibility criteria for reduced fees and fee waivers is crucial for non-U.S. citizens seeking naturalization. These changes by USCIS aim to balance the cost of processing applications with the need to ensure accessibility for all eligible individuals. If you believe you qualify for a reduced fee or a fee waiver, consider consulting with an immigration attorney to navigate the application process effectively.

For further assistance or to discuss your specific situation, please contact our law firm. We are here to help you understand your options and guide you through the naturalization process.

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Facing Deportation: What Happens When a U.S. Citizen Spouse Denies Your Marriage?

Facing Deportation - When a U.S. Citizen Spouse Denies Your Marriage
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For marriages of less than 2 years involving a U.S. citizen and a non-citizen, the initial green card is issued with a two-year conditional period. Before these two years expire, the non-citizen spouse must file to remove these conditions to obtain a green card with a ten-year validity period. But what happens if the U.S. citizen spouse becomes uncooperative, despite the couple still living together? Worse, what if the USCIS denies the joint petition for removal of conditions, putting the non-citizen spouse at risk of deportation? Let’s delve into the case of Maria and John

Maria and John’s Story

Maria, a young college graduate, met John, a U.S. citizen, while working as a guest relations officer at a popular beach resort in the Philippines. Their relationship blossomed, leading John to file a fiancé visa for Maria upon his return to the United States. The visa petition was approved, and Maria traveled to the U.S. to be with John.

During her initial stay, Maria noticed alarming changes in John, who was 20 years her senior. He became increasingly forgetful, his behavior erratic, and his mood swings frequent. Despite these challenges, Maria remained a patient and loving wife. However, they lacked sufficient proof of marriage—no photos together, no joint documents, as they lived with John’s family and didn’t pay rent.

When USCIS called them for an interview to remove the conditions on Maria’s residency, they were interviewed separately. The immigration officer concluded that Maria had entered into a fraudulent marriage, denying the petition. Maria was shocked. Upon reviewing the USCIS decision mailed to her, she realized John had made inconsistent statements during the interview, including an admission that the marriage was solely for Maria to obtain a green card. Maria suspected John’s worsening memory lapses had caused him to forget critical details of their relationship.

Now facing deportation for alleged marriage fraud, what legal steps can Maria take?

Maria’s Deportation Proceedings

When a non-U.S. citizen faces removal due to a denied petition for removal of conditions, the burden of proof lies with USCIS to establish grounds for terminating the conditional resident status. For her defense, the applicant can present new, material, and relevant evidence that was not previously submitted during USCIS proceedings.

Given the lack of joint documents and photographs, Maria must provide testimonial evidence from individuals who can attest to the authenticity of their marriage. Financial and property arrangements vary among couples, and some may have better documentation than others. In Maria’s case, her joint tax returns were her only significant documents. She was advised to gather witnesses who could detail their marital relationship.

Importantly, Maria did not have the opportunity to present this evidence during the USCIS interview. Immigration court provides the ideal forum to present additional evidence to prove her marriage was entered into in good faith.

Besides testimonial evidence, Maria can demonstrate that John has been clinically diagnosed with dementia, explaining his inconsistent answers during the USCIS interview. This crucial evidence could have significantly impacted her case.

With the submission of testimonial evidence and John’s medical records, Maria successfully proved her case in court and retained her green card.

Options for Others in Similar Situations

For those not as fortunate as Maria, an immigration judge, with the assistance of legal counsel, may accept an INA Section 237(a)(1)(H) waiver if the charge for terminating conditional residency relates to marriage fraud.

This case highlights the importance of gathering substantial evidence and leveraging all available legal avenues to demonstrate the legitimacy of a marital relationship, even under challenging circumstances.