Does a foreign national automatically gain citizenship by marrying a U.S. citizen?

FALSE.  Many potential clients approach family immigration lawyers thinking that as soon as a couple gets married, all of the foreign national’s immigration problems will disappear.  Unfortunately, this is not the truth.  A foreign national who marries a U.S. citizen [...]]]> True or False?

Does a foreign national automatically gain citizenship by marrying a U.S. citizen?

FALSE.  Many potential clients approach family immigration lawyers thinking that as soon as a couple gets married, all of the foreign national’s immigration problems will disappear.  Unfortunately, this is not the truth.  A foreign national who marries a U.S. citizen is not automatically given U.S. citizen.  Nor is the foreign national automatically granted permanent residency in the United States.

The truth is, a foreign national who marries a U.S. citizen must pass through many hops before being granted permanent residency in the United States.  Although being married to a U.S. citizen will provide for certain privileges to the foreign national, it is in no way a guarantee that the foreign national will be able to gain permanent residency.  If you are married to a U.S. citizen and seek to gain permanent residency, please contact a family immigration lawyer to discuss your options.

A variation of this false statement is that if you are married to a U.S. citizen for two years, you automatically gain permanent residency.  This is also false.

Previously, most family-based immigrant petitioners living overseas were required to file the I-130 immigrant [...]]]> As has been predicted by this NYC Family Immigration lawyer, the USCIS and the Department of Homeland Security have announced that starting August 15, 2011, all I-130 immigrant visas will have the option of filing at the Immigration agency’s Chicago Lockbox.

Previously, most family-based immigrant petitioners living overseas were required to file the I-130 immigrant visa at the USCIS office located at the closest U.S. Consulate.  With this announcement, starting August 15th, petitioners will have the option of filing with the USCIS in the United States.  The purpose behind the move is to reduce the costs to USCIS and to allow for better tracking of family-based immigrant petitions.   Many practitioners are worried that the change will slow down the process for many families.  The USCIS is already taking about five months to process most I-130 cases filed at the Chicago Lockbox.

This NYC family-based immigration attorney predicts that within a few years, the option of filing the I-130 at a local consulate will disappear completely.

To help the confused, the USCIS recently [...]]]> Understanding public benefits and public charge is a difficult topic for immigrants (and immigration lawyers) to properly understand. Some programs are off limits to immigrants, while other programs are available to immigrants.  Further, the programs available to U.S. citizen children differ from what maybe available to their parents.

To help the confused, the USCIS recently issued an informational packet about public charge, and what types of public benefits are not considered a public charge.

The USCIS writes:

Introduction
Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge. This fact sheet provides information about public charge determinations to help noncitizens make informed choices about whether to apply for certain public benefits.
Background
Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted. Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse
immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.
Definition of Public Charge
In determining inadmissibility, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.
Benefits Subject to Public Charge Consideration
USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs. Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met. However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to
adjust status to lawful permanent resident, or deportable on public charge grounds. See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Each determination is made on a case-by-case basis in the context of the totality of the circumstances. In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.
Benefits Not Subject to Public Charge Consideration
Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care

• Children’s Health Insurance Program (CHIP)

• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs

• Housing benefits

• Child care services

• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)

• Emergency disaster relief

• Foster care and adoption assistance

• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education

• Job training programs

• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)

• Non-cash benefits under TANF such as subsidized child care or transit subsidies

• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits

• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care
benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency
payments under TANF. Since the purpose of such benefits is not for income maintenance, but rather to avoid the
need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.
Note: In general, lawful permanent residents who currently possess a “green card” cannot be denied U.S.
citizenship for lawfully receiving any public benefits for which they are eligible.

Last updated:05/03/2011

K-2 visas are issued to minor children of K-1 fiance(e)s of U.S. citizens.  To qualify for the K-2, the child must be [...]]]> An immigration judge in Charlotte, North Carolina has allowed a K-2 status holder to adjust status to permanent residency despite the K-2 holder having turned 21 before the adjustment of status application’s submission.

K-2 visas are issued to minor children of K-1 fiance(e)s of U.S. citizens.  To qualify for the K-2, the child must be a minor, meaning that the child must be under 21 years old (and unmarried).  Once the K-2 visa holder enters the United States, he or she can adjust status to permanent residency once the K-1 visa holder marries the petitioning U.S. citizen.  In this case, the minor child turned 21 after entering the United States under K-2 status, but before filing an adjustment of status petition.  The USCIS denied the petition and  placed the K-2 visa holder in removal proceedings.  The USCIS held the position that the K-2 holder had “aged out” by not adjusting status before turning 21.

In removal proceedings, the immigration judge reviewed K-1 law (including K-1 visa cases, K-1 visa regulations and K-1 visa statutes), and concluded that the pertinent time for determining when a K-2 visa holder “ages out” is when that individual enters the United States.

K-1 visa petitioners who are in a similar situation should carefully approach their case as the courts throughout the country disagree about this issue.

UPDATE:  Unfortunately, the USCIS has played a cruel, unintended trick on same-sex couples.  It has announced that it will continue denying same-sex marriage immigration petitions – as it will continue to enforce the Defense of Marriage Act.  Now, advocates must wait for the USCIS to determine how to handle President Obama’s decision to no [...]]]>

UPDATE:  Unfortunately, the USCIS has played a cruel, unintended trick on same-sex couples.  It has announced that it will continue denying same-sex marriage immigration petitions – as it will continue to enforce the Defense of Marriage Act.  Now, advocates must wait for the USCIS to determine how to handle President Obama’s decision to no longer enforce the act.  Until then, the status quo of denial will continue.

Newsweek is reporting that at least two local immigration offices are now accepting petitions from same-sex couples who have a valid marriage in either a state or country that recognizes same-sex marriages. The two offices are in Baltimore and Washington, DC.  Although the two offices are accepting the petitions, they are placing them on hold until the Courts determine whether to allow immigration benefits to same-sex couples.  Whether other local offices begin to accept same-sex immigration petitions is yet to be seen.

As a practical matter, applying for immigration benefits offer same sex couples certain advantages – including, the ability to get temporary work authorization and the ability to travel (in certain circumstances).  However, couples who are thinking about applying should first consult an immigration lawyer to weigh the pros and cons of such an application.

Normally, when an immediate relative of a U.S. citizen seeks to obtain permanent residency in the United States, the applicant will file an “adjustment of status” application and will concurrently file an [...]]]> The USCIS has announced that it will soon begin issuing joint advance parole and work authorization documents for applicants seeking family-based immigration petitions.

Normally, when an immediate relative of a U.S. citizen seeks to obtain permanent residency in the United States, the applicant will file an “adjustment of status” application and will concurrently file an application for work authorization and an application for advance parole.  Advance parole will allow the applicant to travel outside of the United States while the application is pending.  The work authorization document will provide evidence of the applicant’s ability to work lawfully.

Previously, the work authorization and the advance parole document were two separate documents that would arrive at roughly the same time.  The move to make one unique form that covers both work authorization and advance parole is an efficient move in the right direction for USCIS.

If you are thinking about applying for permanent residency through a family member, please contact an family immigration lawyer who can ensure you receive all of the benefits afforded to you.