Latest update April 25th, 2024 12:59 AM
Nov 02, 2014 News
By Attorney Gail S. Seeram,
[email protected]
Through this “Question & Answer” column, our goal is to answer your immigration questions. We appreciate your comments and questions. If you have a question that you would like answered in this column, please email: [email protected].
Question #1: Recently (in May) my husband and I along with his grandfather applied for a non immigrant visa to visit the USA. Our interview was held on the 4th June 2013, however only my husband’s grandfather got through with his visa. My husband and I are married almost a year now and we never travelled before and we don’t have kids as yet. I am wondering if that could be the cause for our rejected visa application. I need some advice on what we should do before reapplying, because we want to spend Thanksgiving this year in the USA with our relatives.
Answer #1: To be eligible for a B-1/B-2 tourist visa, you have to prove that you have strong financial, employment and family ties to your native country and will not emigrate to the destination country. If you have a pending immigration petition, such as an I-130, this will show you have intent to leave your native country and your application for a tourist visa may be denied.
Question #2: I sponsored my son, who is over 21yrs, in January 2008, while being a permanent US resident. He has a common law wife from a religious marriage in February 2006 and together they have a son born in October 2007. I became a citizen in February of this year and the Visa centre has since upgraded the status to the F1 category upon my request and informed me that my case is being processed and they would inform me through a package of the next step.
Having said this, I would like to know if he can get married legally now so that his family can travel with him. If not, please advise what is the best possible option.
Answer #2: If your son marries his common law wife, then the petition will change from F1 (unmarried child of a U.S. citizen) to F3 (married child of a U.S. citizen). Currently for F-1 category petitions, visas are available for petitions filed on or before June 2007. For F-3 category petitions, visas are available for petitions filed on or before December 2003. So, if your son marries, he would have to wait five more years versus one more year for his immigrant visa (green card). He should not marry. When he enters the U.S. and gets his green card, he can return to Guyana and marry. Once married, then he can file an immigrant petition for his wife and child and the wait will only be 1-2 years.
Question #3: I have a seven-year-old daughter who was born in the USA, but we both live in Guyana with her father, my husband. We all go for vacation in the summer and return to Guyana. I would normally purchase a round trip tickets – from Guyana to the US and back to Guyana – but someone told me that I have to purchase a return ticket for her showing that she is returning to the US. This would mean me buying for her a round trip ticket and one for her returning to the US. Is this a law? Also, we, her parents, are just holders of US visas.
Answer #3: You do not need to buy a single trip ticket for your daughter. As a U.S. citizen, she is permitted to live outside the U.S., if she chooses, without any penalty to her U.S. citizen status. So, she is not in jeopardy of losing her U.S. citizenship.
Question #4: My common law husband of 19 years has been sponsored by his mother as F1 category and my two daughters ages 7 and 14. If I get married and want to go with my family, how long will it take?
Answer #4: See Answer #1 – he can only marry you if his mother is a U.S. citizen. A permanent resident (green card) cannot file for a married child over age 21. If his mother is a U.S. citizen and he decides to marry you then the wait for the visa will be 3-4 years longer.
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Immigration Bond & Detention Issues
Detention has become more prevalent for undocumented individuals in the United States. If an undocumented individual is detained by Immigration and Custom Enforcement (ICE), then applying for a bond is an option.
Getting a person released from an immigration detention facility is a complicated matter. At the very least, it is more difficult and time-consuming than getting a person released from a state jail after arrest on criminal charges. Nevertheless, if your loved one is in ICE detention, do not assume he or she will be deported, and do not lose hope. Of course, because every detainee’s case is different, it is advised that you consult with an experienced immigration attorney.
Who is not qualified for an immigration bond and is thereby subject to mandatory detention?
The Immigration and Nationality Act lists specific categories of criminals who are subject to “mandatory detention.” The categories include: persons not lawfully admitted who have committed an offense covered in Section 212(a) (2) of the Act, which includes crimes involving moral turpitude, controlled substance violations, drug trafficking, prostitution, trafficking in persons, and money laundering.
Also, persons lawfully admitted who have been convicted of multiple crimes involving moral turpitude, an aggravated felony, a drug crime (except for simple possession of small amounts of marijuana), and certain firearms offenses.
Who grants the immigration bond and who determines the dollar amount?
Immigration bonds are granted by Immigration and Customs Enforcement (ICE), or by an immigration judge. Either party sets the bond to ensure the immigrant’s appearance at future court proceedings. So, for example, if ICE sets a bond of $5000, and the detainee’s family posts that amount at an ICE field office, then the person will be released. ICE will return the $5000 if the ex-detainee shows up for all his court hearings. If he misses a court hearing, then the $5000 will be forfeited.
In any case, the immigrant or his attorney can also request a bond from an immigration judge. Depending on the region of the country where the person is detained, requesting a bond hearing may be the fastest way to get a person released from immigration detention.
Once a formal request for a bond is made, the immigration court will calendar a bond hearing. At the bond hearing, the judge will set a bond amount after making a determination of whether the detainee is a flight risk or danger to persons or property.
The immigration judge considers many factors, on which evidence may be presented by either party. These include: the immigrant’s family and community ties to the United States, length and seriousness of criminal history, financial stability, history of immigration violations, length of residence in the United States, and history of appearances before courts.
Even at bond hearings, you or your attorney may be able to negotiate a bond amount with Immigration and Customs Enforcement. When an agreement as to the bond amount is reached, the immigration judge will often accept this number.
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