Everything you need to know about the DREAM Act 2021

Students at a Table

The U.S. Citizenship Act includes within it a long demanded piece of immigration law – the DREAM Act, named after the “dreamers” who were brought to the US as children. Many of them have been unable to legalize their status due to unforgiving immigration laws which don’t take into account many hardships. This article reviews the DREAM Act as it is included in the U.S. Citizenship Act.

It’s important to know that the DREAM Act is only a proposed law, not a law which has been passed by Congress. There is no benefit to apply for as of the date of this article. While I hope it becomes law soon, in reality immigration laws are hard to pass. We are in a rare moment where it might be possible for big immigration reforms to happen. But keep in mind that this is a proposed law rather than a law which has been passed by Congress.

What is the DREAM Act?

The DREAM Act has been through numerous versions for more than a decade, but today I’m writing about the one included in the U.S. Citizenship Act. This was recently introduced in the US House and Senate after being proposed as a priority by President Biden. The DREAM Act starts at page 19 of the U.S. Citizenship Act, and it is only a small part of this bill. There are many other changes which are really important but not technically included as the DREAM Act.

The DREAM Act would insert a new section into the Immigration and Nationality Act at INA § 245D. It is only about 10 pages long, out of a bill that is 353 pages, and it could easily be separated and passed with minimal modification if required to get it passed.

What does the DREAM Act do?

The DREAM Act allows the government to “adjust the status” of certain people to allow them to get permanent residency, AKA green cards. Adjustment of status is the typical process that people use to apply for green cards through their family, including spouses, through employment, or in some other limited circumstances.

This law creates a new path. It also creates a broader path for legalization of other people but that is beyond the DREAM Act itself. Applying for the DREAM Act green card would also lead to US Citizenship, but not as the first step. First, the applicants would become permanent residents. Most people who are residents can apply for US Citizenship after 4 years and 9 months of residency, and this would be no exception.

This law allows the government to give people green cards if they meet some basic requirements. It also includes a streamlined process for those who already have DACA.

DREAM Act Requirements

As written in the proposed law, the requirements are:

  • Being younger than 18 years old on the date of their initial entry to the US
  • Earning a high school diploma, GED, or similar types of awards
  • Meeting an additional set of education requirements by having either
    • Earned a degree from an institution of higher education, or
    • Completed at least two years of a program in the US leading to a bachelor’s degree or higher or some type of recognized technical credential, or
    • Served in the US armed forces for at least two years, or
    • Earned income for periods of at least 3 years AND at least 75% of the time that they have had valid work authorization, reduced by time enrolled at an institution of higher learning or a technical education school
  • Registration under the Selective Service Act if applicable
  • Admissibility requirements – cannot be inadmissible under INA 212(a)(2), (3), (6)(E), (8), (10)(C), and (10)(E)
  • No convictions for felony offenses (excluding some immigration status felonies)
  • No convictions for three or more misdemeanor offenses, excluding:
    • Simple possession of cannabis or cannabis paraphernalia
    • Civil disobedience without violence
    • Minor traffic offenses
  • Physical presence on the day the application is submitted
  • Present in the US by January 1, 2021 and continuously, with some exceptions, through the date of approval

A number of these requirements are subject to waivers and exceptions. So even if someone doesn’t qualify under the above requirements they still may qualify for the new law.

Other important changes in the DREAM Act

The law contains some other important provisions that are worth mentioning.

Waiver for the education requirement

There is a significant waiver for people who cannot meet the education requirement. There are two separate education requirements, one which can be called the high school requirement and the other which can be called the higher education requirement (or exceptions). The latter is more challenging to meet and this waiver covers that requirement.

Waivers are available if the applicant can demonstrate that there are “compelling circumstances” that they cannot meet the education requirement. This standard is really quite low in relation to other areas of immigration law. It also appears to be a new standard which hasn’t been applied before.

Spouses and children

There is a short yet important provision which allows any spouses and children of noncitizens who meet the general DREAM Act requirements to qualify on their own. This is important. It means that many spouses and children of people who qualify for this new law also qualify. Most of the children mentioned here would normally be US Citizens already, but some children might benefit. But in the case of stepchildren, who are considered children under immigration law, this could be a really important benefit.

The spouse benefit has wider applicability. It allows spouses of people who qualify for the DREAM Act to also qualify, even if they don’t meet many of the requirements. It appears that a spouse would qualify even without meeting the education requirements or without having entered before age 18. If passed, this would legalize a large amount of people and keep families together.

Special streamlined process for DACA recipients

The DREAM Act requires the government to established a streamlined process for those who have received DACA and who meet the requirements to renew DACA. This mainly excludes those who became ineligible to renew DACA, usually for criminal reasons. The process is not described but it would presumably include faster processing so long as someone can show they have DACA. While it is not entirely clear, there is a good argument to be made that this applies to everyone who has ever had DACA and not only those who have it at the time they apply.

Public benefits and the DREAM Act

The DREAM Act specifically allows DREAM Act recipients to access many important public benefits. Additionally, it allows many DACA recipients (who are not yet permanent residents) to obtain certain benefits. Not every benefit is included, but some relate to home loans and health insurance coverage.

Frequently asked questions about the DREAM Act

The DREAM Act is a powerful pieces of legislation, but there are many questions still remaining. Here are some quick answers based on the way the statute is currently written.

Can I file for the DREAM Act now?

No, it’s not a law. A bill must be passed by Congress and signed by the President to become law. The DREAM Act is only a bill being considered by Congress. It will be extremely clear from the news, reputable law firms and nonprofits when there is something to apply for.

Can I pay now to apply for the DREAM Act?

No. It is likely that anyone asking for payment as of the date of this article is a scammer. There is nothing to pay for at this time, and there is no need to secure legal services at this time for the DREAM Act. It is not recommended to pay for legal fees in advance.

What should I do now if I might qualify for the DREAM Act?

If you appear to qualify for the DREAM Act if it becomes law, you can take some important steps now. First, know that there will likely be a streamlined process for people who already have DACA. If you are eligible for DACA, you should consider applying now. DACA also provides other benefits, such as work authorization and protection from deportation.

Second, look at the higher education requirements and think about how you might meet them. Some involve attending higher education institutions, but those are not the only options. You can also demonstrate eligibility through work and military service. There are also waivers available, but it’s usually better not to rely on a waiver.

Trump announces deferred enforced departure for Venezuelans

In a last minute presidential memorandum, President Trump ordered “deferred enforced departure” to prevent the removal (deportation) of most Venezuelans for a limited period of time. This action, which falls short of designating Venezuela for Temporary Protected Status (TPS), may be surpassed before long with the incoming Biden Administration.

What is deferred enforced departure?

Deferred enforced departure is a discretionary benefit to allow someone to remain in the US despite being deportable, but only for a limited period of time. This is just a fancy way of saying prosecutorial discretion in the immigration context – the Trump Administration is not giving anyone lawful status, but rather preventing their deportation for a period of time.

Deferred enforced departure has previously been extended to certain citizens of China, Haiti, Liberia, and on some other occasions. It has typically been used on a temporary basis to prevent suffering and hardships for people from other countries facing unrest, war, or humanitarian disasters.

What are the requirements for deferred enforced departure for Venezuelans?

The presidential memorandum defers the removal (deportation) of Venezuelans present in the US as of January 20, 2021. It is extremely broad but has some restrictions. It does not apply to people who voluntarily returned to Venezuela, did not continuously reside in the US after the effective date, are inadmissible under terrorism grounds, convicted of certain crimes, were deported prior to the effective date, or who present security or foreign policy issues for the US Government.

In short, most Venezuelans should qualify unless they have criminal convictions or unique circumstances, so long as they are in the US as of January 20, 2021. The full requirements are listed in the memorandum.

What is the significance of announcing deferred enforced departure for Venezuelans?

It is not clear why Trump decided that announcing this decision on the last full day of his presidency was the right moment. He had four years to allow Venezuelans to apply for TPS, which would have been an easy and powerful solution for many Venezuelans currently struggling to have their asylum cases heard. These cases are clogging up the USCIS offices and courts when they could be funding USCIS operations and giving people reliable work permits and status in the US.

Most likely the Biden Administration will announce programs that surpass and overshadow this announcement. There is little doubt that Biden will announce TPS for Venezuelans but it has not yet been announced. For the moment, some individuals may benefit if ICE and the immigration courts step down enforcement efforts against Venezuelans.

H-4 work permits and EADs for H-1B dependents

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The nonimmigrant status known as H-4 is common for spouses and certain children of individuals who hold H status, for example H-1B. In some circumstances, but not all, H-4 status holders can apply for a work permit, known as an EAD or employment authorization document.

Which H-4 status holders are eligible for a work permit?

Today, some H-4 nonimmigrants are eligible to apply for employment authorization and EADs. However, it’s important to know that the permission to work is not automatic and it does not extend to everyone who has H-4 status.

There are several ways that someone with H-4 status can become eligible to file for work authorization.

Work permits based on marriage to an H-1B holder who meets certain requirements

The most common is for a spouse of an H-1B holder who are in the process of applying for permanent residency. More specifically, that H-1B holder must be:

  • the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000

The reference above to the American Competitiveness in the Twenty-First Century Act mostly includes those with a labor certification or I-140 petition pending for more than a year.

Work permits based on suffering abuse by one’s spouse

Separately, there is another type of work permit available for H-4 spouses who have been abused. This category extends to all H visas rather than just H-1B spouses. It is best to consult with a lawyer before filing to see if other benefits might also be available for victims of crimes and domestic violence.

Work permits based on compelling circumstances for individuals and their families awaiting priority dates under EB-1, EB-2, and EB-3 petitions

There is a special regulatory provision which allows for work permits under category (c)(35) for certain individuals and their families who are awaiting priority dates. The requirements for this type of EAD are very technical and determining what circumstances are considered compelling is a legal question best reviewed with a lawyer. This category can help people who encountered unusual circumstances which impacted them or their company prior to reaching a priority date. This category can include spouses and children as well.

How can an H-4 nonimmigrant apply for a work permit?

H-4 spouses desiring a work permit must formally submit an application and are not otherwise authorized to work unless that application has been approved. Work permit applications are completed on USCIS form I-765 and each applicant must follow the detailed instructions for that form, which are available at the USCIS website.

H-4 nonimmigrants should take note that their work permit does not itself provide immigration status and a change or extension of status may still be required. It is best to consult with an immigration attorney if any questions come up.

For spouses who are requesting a work permit based on abuse, a slightly different form is used, USCIS form I-765V.

How much does it cost to apply for an H-4 EAD work permit?

Filing fees should always be reviewed at USCIS.gov and applicants may review the USCIS fee calculator. The filing fee for the I-765 for H-4 nonimmigrants in category (c)(26), which is the most common category, is $410. However, for those applying under the special circumstances categories, (c)(35) and (c)(36), they must add the $85 biometric fee for a total of $495.

There is no filing fee for the form I-765V if the applicant is filing based on having suffered abuse.

What kinds of jobs can an H-4 nonimmigrant with an EAD do?

The H-4 work permit is unrestricted and not tied to a particular employer. This means that an H-4 nonimmigrant who has an approved EAD can work at any job, unless US Citizenship is required. Often H-4 nonimmigrants with EADs can work at a wider range of jobs that the H principal nonimmigrant, who are often subject to employment restrictions.

Who is eligible for H-4 status?

H-4 nonimmigrant status is a dependent status for all of the H status categories. These categories include H-1B, H-2A, H-2B, and H-3. Eligible dependents in these categories include spouses and unmarried children under age 21.

How to change status to an F-1 nonimmigrant student in the US

Students at a Table

Many people who are already in the US in a nonimmigrant status decide that they would like to enroll in school. There are typically three options depending on that person’s status: see if they are eligible to attend classes without changing to F-1 status, apply for a new visa at a US embassy or consulate and then reenter, or file a USCIS form I-539 to change status within the US. This article will focus primarily on the third option of changing status within the US.

Those seeking a change of status within the US should be aware of some general requirements for the process. First, they must have been admitted in a nonimmigrant status of some kind. Second, that status must remain valid at the time of filing. Third, they cannot have violated the conditions of their status, committed crimes, or been placed in removal proceedings.

Changes of status take time. Often, this is the primary reason that people will choose to leave the US rather than wait for a change of status. Waiting on USCIS could mean that they are spending months waiting for a response and even missing the start of classes. In many cases, starting classes without an approval would violate their current nonimmigrant status. However, during the pandemic and for many other reasons, many individuals prefer to do the change of status within the US.

Typical processing times can be seen on the USCIS processing times page, but take note that they are not entirely reliable. They are at best averages, and in many times vastly overstate the typically processing times. Changes of status are notoriously slow and have only increased during 2020.

What is the process of filing an I-539 change of status with USCIS?

Not every case is the same, but for most people filing a change of status to an F-1 nonimmigrant requires the following steps:

Do not assume that because a form I-539 is pending that you are allowed to start classes. USCIS sometimes requires “bridge applications” to be filed as necessary to ensure that an applicant is in status up to the 30-day period before their program is scheduled to start, or the deferred start date in the event it had to be deferred. This can even require multiple bridge applications.

Frequently asked questions about changes of status to an F-1 student

Here are some common questions that frequently arise for people changing status to study as an F-1 nonimmigrant.

Can I start classes if USCIS has not approved my form I-539?

Most individuals cannot start classes if they have not been approved for their change of status. This is unfair and can cause big headaches for students, but unless their current status permits enrolling in school, actually starting classes would be a violation of their status. Read what USCIS has to say:

If you are requesting to change from another nonimmigrant status to F or M student status and your current nonimmigrant status does not permit you to enroll in classes, do not enroll in classes or begin your studies until USCIS has approved your change of status. If USCIS has not adjudicated your change of status at least 15 days before the program start date on your Form I-20, contact the DSO at your new school. If USCIS does not grant your request to change status prior to the start date of classes, you will need to defer attendance and wait until the following term in order to begin your studies at the school in F or M status.

https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status

However, some nonimmigrant statuses do permit studying, and not all types of education are treated the same under immigration law. The best practice is to check with the school DSO or an immigration attorney to confirm that your status does allow a full-course of study. In some instances, full time study is not permitted but part time is.

In what types of nonimmigrant status can I study without changing to F-1 status?

It’s extremely important to be sure that you are permitted to enroll in classes before starting school. If there is a mistake, you could be determined to be out of status and there may be long-term consequences. US Immigration and Customs Enforcement has created a chart which describes which nonimmigrant statuses can enroll in full-time studies, including their spouses and dependents.

Many people seeking to transfer to F-1 status are in B-1 or B-2 visitor status. Sometimes, visitors are accepted into a program and want to start on their original start date. However, they should be cautious because a full course of study is not allowed for a B-1/B-2 nonimmigrant. As USCIS describes, ” the regulations at 8 C.F.R. § 214.2(b)(7) specifically prohibit a course of study in the United States while in B-1 or B-2 status.”

USCIS has unfortunately interpreted the law in a very rigid and unforgiving way that can create serious problems for people seeking a change of status to enroll in full-time classes. In some cases, bridge applications are required to maintain lawful status.

What is a bridge application and how do I file it?

USCIS has taken the position that a nonimmigrant with a pending change of status must make sure that they maintain lawful status throughout the period of time that they wait for a response from USCIS. Regulations allow USCIS to approve a change of status up to 30 days before the educational program is going to start. See 8 CFR 214.2(f)(5)(i). If a change of status has not been decided, students will be deferred by their school to a later start date. Frequently, they won’t then be able to maintain status until 30 days before their start date. USCIS now requires a bridge application to be filed to cover that time.

A bridge application is one which is used to cover the period of time following approval of an application and before starting another status, usually F-1 or H-1B. For example, if a B-2 nonimmigrant files a change of status to F-1, they will often be required to file a bridge extension of their B-2 status up until the 30-day period before they begin classes. Bridge applications are inherently risky because they often are filed prior to receiving a decision on a prior extension. If they later receive a denial on that initial application and were then out of status when the bridge was filed, it will not cover the gap in lawful status.

In most cases, B-1/B-2 nonimmigrants would need to file both a change of status to F-1 status and an extension of status of the B-1/B-2 status. If the change of status is still not approved within the time requested in the extension, a new extension must be filed. USCIS describes this process on its website:

Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before your new program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.

https://www.uscis.gov/working-in-the-united-states/students-and-exchange-visitors/students-and-employment/changing-to-a-nonimmigrant-f-or-m-student-status

Because these applications are complicated and unforgiving, it’s a good idea to discuss your personal situation in detail with a school DSO or an immigration attorney.

Proposed Regulation to Restrict Work Permits for Individuals with Final Orders of Removal

Under current law, some individuals who have received an order of removal from an immigration judge are not actually able to be removed. In some cases, no country will accept the person and in other cases the US Government declines to actually remove them. Some people are given “orders of supervision” during the period of time that they live in the US, which typically requires frequent appointments with ICE or other types of monitoring.

A person with an order of removal and an order of supervision has been able to apply for a work permit. This makes sense, because those people are not in fact going to be removed from the US and there should not be a policy of forcing them into poverty, homelessness, or unauthorized employment. Now, the Trump administration has released a 120 page proposed rule to restrict this relatively small population of individuals from getting work permits. The proposed regulation shows that the annual number of work permit applications for these individuals has never exceeded 27,000 in any fiscal year between 2010 and 2019.

Additionally, the proposed rule does not entirely eliminate the work permits anyway. It creates a carve-out for those individuals who cannot be removed because DHS has received a rejection from all countries from which it has requested travel documentation. It’s not clear what percentage of the current applicants will be restricted under the new regulations. However, it is clear that the new rule is quite complicated and will only add unnecessary levels of bureaucracy to a work permit category that only allows very limited employment to begin with.

The rule is available to review at https://www.federalregister.gov/public-inspection/2020-25473/employment-authorization-for-certain-classes-of-aliens-with-final-orders-of-removal

Biden’s Immigration Plan – What Does a Biden Presidency Mean for Immigration Reform?

Many immigrants and immigration lawyers are wondering what the election of Joe Biden will mean for immigration reform. No one is sure yet, but we do know that Biden will likely be much more pro-immigrant and in support of immigration reform than the Trump Administration. Presidents aren’t able to change immigration laws on their own because only Congress can propose and pass laws. However, presidents do make significant changes to immigration regulations and policies. We know that because the Trump Administration has changed them about as much as possible.

First, we should ask what Biden’s platform is currently. Then, we should consider what the political realities are for implementing that platform.

What has President-Elect Biden said about immigration?

Immigration lawyers are laser-focused on the particular details of a candidate’s platform. We have clients who would benefit from one policy or another. What does a President Biden want to do?

The overall tenor of President Biden’s plan is a more compassionate immigration policy that takes into consideration a balance of enforcement actions and humanitarian concerns. That means that a President Biden would likely reverse some of the immoral and controversial policies of the Trump Administration, such as separating families and punishing asylum seekers. We can also probably include the travel bans and public charge rules. It seems like that Biden and his administration will also be good faith negotiators on immigration reform. This would be a welcome change, because Trump has repeatedly expressed support for different policies only to take actions against them, such as rescinding DACA.

Biden has publicized his immigration policies. These are really campaign points and it remains to be seen what he will do on his own and what he will propose to Congress for new legislation. As a lawyer, the most impactful changes would be:

  • Ending family separation at the border. This Trump policy has separated many parents from their children, perhaps forever, and created a humanitarian crisis at the border.
  • Reverse some of the Trump Administration’s changes to asylum. Trump has punished asylum seekers, sending them to Mexico to await court hearings (which are constantly canceled) and prevented others from living their lives here in the US. Biden has committed to ending these changes.
  • Biden will reverse the public charge rule. This rule has basically turned routine immigration processes into paperwork nightmares. The point is to discourage people from immigrating to the US, as with many other Trump policies. Biden will end it.
  • Protecting Dreamers. Dreamers have been waiting since at least 2006 for Congress to take action. When Trump took power, he only made life worse for them. Biden will work to not only keep the DACA program alive, but also to push for a DREAM Act rather than pretending to while undercutting benefits, as Trump has.
  • Ending the travel bans. Trump has not missed an opportunity to restrict immigration. The COVID Pandemic has not only upended the lives of many people, it also presented an opportunity for Trump to end immigration. Today, many parents and children of US Citizens and permanent residents are stuck abroad under the imaginary guise of “affecting the labor market.” Biden will end the travel bans.
  • Prioritizing sensible immigration enforcement. When Trump took power, he decided to prioritize everyone who was in the country without permission. In reality, you can’t prioritize everyone. Case backlogs have grown by hundreds of thousands during every year of the Trump Administration. Biden would focus on dangerous people and not spend resources on people like mothers and fathers of US Citizens.

These proposals are high level policies that will impact millions of people. They aren’t detailed laws or regulations, which is to be expected. But they clearly show a compassionate and sensible response to immigration policy that would both enforce US laws and take into consideration the personal stories of people living in the US.

Is immigration reform like to happen during a Biden presidency?

When a candidate proposes certain policies, it’s generally understood that they might not happen. That’s because a president of the United States has limited power. The president and propose laws and enact policies. But Congress passes laws. The President only gets to approve or veto a particular law. As a result, Presidents have limited influence in legislation.

Congress has the responsibility to create immigration laws. If immigration laws have been stagnant for years, it’s because Congress has not changed the laws. Arguably, most immigration laws have not changed for decades. President-elect Biden must work with Congress to get immigration reform passed.

Because Biden cannot go it alone, he has to depend on the House and Senate to craft and pass immigration reforms. That’s likely to be a struggle if the Senate is not controlled by Democrats. But it’s worth noting that immigration legislation has always been a challenge. Even when the Democrats held both Congress and the Presidency during the Obama Administration, very little immigration change occurred. Immigration bills are always compromises, and there is wide disagreement even within the Democratic Party about many immigration issues. As a result, it’s always a challenge to pass immigration reform.

Becoming a US Citizen through naturalization after divorce

Many US residents wonder whether they can still become US Citizens if they divorced the person who helped them get residency. There is no rule against getting divorced and it’s a common situation. At the same time, there are some situations which could come up and complicate the process. It’s best to speak with an immigration lawyer before applying for US Citizenship to make sure there are no issues in a particular case.

Here are some frequently asked questions by people applying for citizenship by naturalization.

Can I file for citizenship if I divorce the person who filed the family petition for me?

Some people became residents of the US through a family petition by a US Citizen or lawful permanent resident spouse. While no one is required to stay married, getting divorced can have consequences in different situations. USCIS is always concerned with marriage fraud, which usually means getting married only to get immigration status. And so, at each stage of the immigration process, USCIS checks to see if the marriage was intended for immigration purposes or other purposes.

Of course, it’s not unusual or illegal for a couple to have immigration issues in mind when they get married. After all, there are no immigration options for people who are dating or simply cohabitating. Immigrant couples often consider marriage more quickly than other couples because it impacts their ability to stay together lawfully. This is completely normal. What is not allowed is to pay for immigration paperwork, to get married only to get immigration status, or to lie about a relationship in some capacity as part of the immigration process.

Problems with a current or past marriage can come up at citizenship interviews

USCIS officers frequently meet with people who divorced from the spouse who filed for them. For many people, this comes up for the first time at the stage of applying for citizenship. All citizenship cases involve an interview and a thorough background check. Sometimes, USCIS realizes that information provided at an earlier stage was incorrect. This can lead to denial of a citizenship application and even deportation proceedings. Some common issues that come up are:

  • Claiming an incorrect marital status in any immigration application, such as filing a B2 visitor visa application as a married person rather than a single person
  • Failing to list children in a visa application or green card application, especially if doing so made it less likely that immigration would find some other problem such as another marriage or infidelity
  • Chain marriages where two people separate, get married to other people, immigrate to the US, and then later remarry
  • Undisclosed or common law marriages that were not properly terminated according to the laws of the country or state where the divorce took place
  • Having an affair or children outside of the marriage during the required good moral character period for the citizenship process

USCIS will likely look for these issues, so it’s a good idea to talk with an experienced immigration lawyer to review a case before filing.

How does getting divorced change the citizenship process?

There are a few important changes that can happen once someone has gotten divorced. For citizenship cases, USCIS wants to document the person’s marital status. For that reason, USCIS will typically require an original or certified divorce as part of the case.

USCIS reviews cases involving divorce for signs of marriage fraud

USCIS may screen cases of divorce more carefully. This is especially true where the applicant divorces from the person who petitioned for him or her. USCIS just wants to confirm that the marriage was valid. This comes up directly on the form N-400, and the officer will ask about all marriages, children, and whether any marriage was entered into for immigration purposes. This question is referring to marriage fraud, not whether the person intended to file some kind of immigration application when they got married.

People granted a two-year conditional residency must file to remove the conditions

If someone received a conditional residency (valid for two years), they must also make sure to file and complete the process. In most cases, you cannot become a citizen if you did not file the petition to remove conditions on the residency – but not all residents are subject to these conditions. Sometimes, people can file the petition to remove conditions and then file for naturalization while that process is pending. This is fine, so long as USCIS makes a decision on the petition before approving the naturalization application. They should do this automatically during the interview, but sometimes cases are not handled correctly.

Getting divorced can change the required amount of time to file for citizenship

The period of time that the applicant must wait before filing for naturalization also can change when the person has divorced. Spouses of US Citizens can often file after three years of residency rather than five. But it’s important to review the correct filing date for naturalization applications carefully.

Green Cards for Stepchildren and Stepparents

US immigration laws permits green cards for stepchildren as well as for stepparents under certain circumstances. There are some special rules that apply in these cases. To be considered a stepchild, the marriage between the biological parent and the stepparent must have taken place before the stepchild’s 18th birthday. In many other respects, the process is similar to other child and parent green card applications.

Stepchildren and stepparents in US immigration law

Many people are not aware that US immigration law considers stepchildren to be just like other children as long as some basic requirements are met. This is because in most parts of immigration law that reference children, a specific definition of a “child” applies. That definition includes stepchildren.

Section 101 of the Immigration and Nationality Act defines a child for immigration law purposes (but only for titles 1 and 2 of the act). In immigration law, all children must be under 21 years of age. The law typically refers to older children as “sons and daughters” and they are treated differently in many respects. The stepchild definition says that a child includes:

“a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred”

INA Sec. 101(b)(1)(B)

This means that as long as the marriage between the stepparent and the biological parent occurred before the child’s 18th birthday, the law considers the child to be a stepchild. In some states, common law marriage allows the person to backdate the actual date of marriage. This can potentially be done even if the parents later married in a normal ceremony.

Stepchildren are not always considered children for immigration purposes. The most common situation that they aren’t considered to be children is for deriving citizenship from a US Citizen parent.

Green card applications for stepchildren

Based on this definition, there are greencards for stepchildren much like there are for biological children. A stepmother or stepfather can file an I-130 family petition for their step child if they meet all the requirements. If the stepparent is a US Citizen, the children may also be eligible to apply for a green card at the same time. Note, however, that the petition and green card applications are actually separate processes. Schedule a consultation with an immigration lawyer to review the entire process and confirm eligibility.

The simplest and most common situation is that a US Citizen marries a person who has children already. Assuming that the spouse and children entered with a visa, the US Citizen can then file I-130 petitions for the spouse and the children. Separate I-130 petitions are required for each person, even if they are applying together. Listing children in an I-130 does not mean that they are included as derivatives – there are no derivatives allowed if the relationship is considered to be “immediate relatives.” The spouse and children will also need to file I-485 adjustment of status applications in many cases. Again, each person must have their own I-485 with a separate fee, and the cases are technically separate but often decided at the same time.

Sometimes, people are not eligible to adjust status in the US, but this is not unique to the stepchild process. For example, if a child entered the US on a visa with her parent, but overstayed her status, she may be ineligible to adjust status in some cases. This is true for stepchildren of a lawful permanent resident. However, the stepparent can still file the petition for the stepchild, who can often consular process by attending an interview in her home country.

Green card applications for stepparents

Similarly to stepchildren, there are also green cards for stepparents if they meet the requirements. Stepparents can also be petitioned for by their stepchildren. The same definition of a child that applies to help the child also applies to the parent petitions. Petitions for parents follow different rules, however. In most circumstances, a child must be a US Citizen and over age 21 in order to file a petition for a parent. Stepchildren must also prove that the marriage which formed their stepchild relationship occurred before they turned 18.

In many cases where a stepchild relationship exists, the spouse would be the person filing the petition rather than their child. But there are some circumstances where it would still be helpful. One example would be if a parent came to the US, overstayed a visa, and then had a child in the US. The child is a US Citizen, and we can assume that their parent gets married at some point before the child turns 18. Both the biological parent and stepparent are out of status but entered on visas. Once the US Citizen child turns 21, he or she may be able to file for both the parent and stepparent.

It’s important to review all adjustment of status cases with a lawyer, because there are many requirements and getting denied can lead to deportation. In addition, completing the paperwork and forms has become more and more burdensome over the years. Schedule a free consultation to discuss a particular case.

When can you apply for US Citizenship and naturalization?

Most permanent residents must have four years and nine months of residency in order to apply for naturalization. The general rule is that someone can apply three months before the required time period, which is usually five years. As such, four years and nine months would be the earliest date to file.

There are a number of exceptions and variations on this general rule, some of which allow people to file even earlier, depending on their circumstances.

Filing for US Citizenship early based on marriage to a US Citizen

There is an important exception to the general five-year rule for spouses of US Citizens. If they meet all the requirements, spouses of US Citizens can apply for naturalization in two years and nine months. This is because they are permitted to apply in three years rather than five, and they can also take advantage of the three-month early filing law.

Spouses of US Citizens should carefully review the requirements to make sure they qualify for naturalization early, including:

  • The spouse must remain a US Citizen until the spouse becomes a US Citizen at the oath ceremony
  • The spouse must have lived in a marital union for three years prior to filing, which is not subject to the early-filing period. This may be an issue for spouses who married US Citizens after becoming permanent residents, rather than becoming permanent residents through marriage to a US Citizen.
  • The spouses must reside together and live in marital union up until the date of the oath ceremony, unless there are compelling reasons for living separately.
  • This early filing period may not be possible in the event of divorce, annulment, or death of the US Citizen spouse.

Filing for US Citizenship early based on a VAWA self-petition or abuse by a US Citizen

The early-filing period for spouses of US Citizens also applies in some cases to people who were abused by US Citizen spouses. This may be possible even if the spouse has since divorced the US Citizen. USCIS will allow certain spouses to file if they became permanent residents based on:

  • An approved I-360 self-petition as an abused spouse of a US Citizen
  • An approved I-360 self-petition as an abused spouse of a lawful permanent resident who later became a US Citizen
  • Approved beneficiaries of special-rule cancellation of removal where the abusive spouse was a US Citizen or in some cases an intended spouse
  • Marriage-based residency applications where an I-751 removal of conditions application was approved on the basis of battery or extreme cruelty by a petitioning citizen or lawful permanent resident

Filing for US Citizenship early based on a relationship to a member of the US Armed Forces

Spouses of US Citizens who are residing abroad and in the employment of the US Government can sometimes file without any specific period of time as a permanent resident, so long as they are residents. This is a common situation with spouses of members of the US Armed Forces. The naturalization ceremony typically must occur in the US, and certain modifications are possible for conditional permanent residents as well.

There are other options available to spouses and children of members of the US Armed Forces, veterans, and members who died in active duty. It’s important to review some of these less common options with a lawyer in order to determine eligibility and discuss the process.

Filing for US Citizenship based on current or prior service in the US Armed Forces

In recent years, most people must become US Citizens before or shortly after joining the US Armed Forces. There are some exceptions to this. However, in previous decades, some people joined the US Armed Forces and served in active duty without ever becoming US Citizens. Some people never even had lawful status to begin with. If that individual served during a period conflict (including 09/11/2001 to the present date), they may qualify for direct naturalization without ever becoming a permanent resident.

Backdating of green cards and filing early for US Citizenship

Certain permanent residents receive their green cards dated to before the actual date of approval. As long as USCIS has correctly dated the green card, this is normal and that date can be used to figure out when they can file for naturalization. USCIS does sometimes make errors with the dates on green cards, so it is always important to compare that date to the actual date of approval and the applicable law for the type of residency application. Green card backdating usually applies to only certain case types, such as:

  • Cuban Adjustment Act green cards (date of arrival or 30 months prior to green card approval)
  • Refugees (date of entry to the US)
  • Asylee green cards (one year prior to date of approval)
  • Lautenberg parolees (date of parole into the US)

If the green card has been dated incorrectly, it does not affect the actual date of eligibility for citizenship and the applicant should review the issue with a lawyer.

New Green Card Rules in 2020

This year has seen significant changes to the green card process. Not only has the COVID-19 pandemic delayed and practically halted many cases, but also the new public charge rule went into affect causing a great deal of confusion.

It should be noted that the overall process of applying for a green card in the United States is still the same. USCIS is still open and operating, only more slowly and with some added precautions. Most people should not delay in filing applications if they are eligible. It’s always a good idea to schedule a free consultation in order to discuss a particular case.

Here’s a summary of key changes to the green card process in 2020:

  • The public charge rule has gone into effect and is applying retroactively to cases postmarked on or after February 24, 2020.
  • COVID-19 shutdowns have caused severe delays for cases, particularly those received in February and March of 2020. Delays have been uneven.
  • USCIS implemented COVID-19 accommodations for certain deadlines and types of situations.
  • Travel bans have completely halted certain types of green card immigration to the US, particularly for parents of US Citizens and family of lawful permanent residents.
  • Fee increases proposed by USCIS were enjoined before going into effect, but will likely still be implemented at some future date.

Green card public charge rule in 2020

One of the most significant changes in 2020 was the implementation of the new public charge rule. USCIS wanted to start enforcing this rule in 2019, but was stopped by courts. The final rule went into effect starting February 24, 2020. Cases filed before that date should not be impacted by the rule. However, USCIS is retroactively applying the rule to cases filed since that date, even if a case was filed during a period when it was not required, like during the recent court injunction.

The public charge rule is a significant burden on applicants and just another barrier to people getting green cards. It requires applicants to demonstrate that they will not become a public charge of the US Government, meaning that they will not be dependent on the government. Applicants must submit form I-944, declaration of self sufficiency, and provide a lot of documentation mentioned in the form instructions. USCIS will determine if someone meets the new test by looking at whether the applicant has serious medical conditions, health insurance, a decent income if authorized to work, assets, significant debts, as well as their level of education.

USCIS COVID-19 accommodations

USCIS is providing some accommodations that are important for green card applicants as well as other case types. One key accommodation has been flexibility in responding to requests for evidence and other requests. It has been impossible to get many types of documents during the pandemic, and this allows 60 days beyond the date in most types of requests for applicants to respond. It also applies to some kinds of appeals and motions.

USCIS is also providing some flexibility with changes of status and extensions of status due to the pandemic. Additionally, applicants who have to reschedule due to illness or travel outside the US should not be penalized for their rescheduling requests, although in some cases USCIS has been issuing denials in error.

USCIS immigration fee changes in 2020

USCIS attempted to increase immigration fees for many common types of applications such as work permits, citizenship, and waivers. Currently, the fee rule has not gone into effect because it was stopped by multiple courts. That doesn’t mean that it won’t become effective in the future, however. Now is a good time to file those applications, like citizenship, before fees increase significantly. Some applicants will also lose their ability to get a fee waiver once that rule becomes effective, unless USCIS changes its policy.

Schedule a free consultation today to review how these changes impact your case.

Diversity Visas and the Green Card Lottery

Every year, the US Government selects applicants from a wide list of countries in a lottery system known as the diversity visa lottery. In most years, many more people apply than are able to complete the process. There are some requirements to enter, but they are not as difficult as employment-based cases and do not require the family relationships that many green card cases require.

The US Department of State operates the diversity visa lottery. Each year in October and November, people are invited to register for the lottery for visas available during the next fiscal year. Fiscal years are not the same as calendar years in the United States, and the fiscal year begins on October 1st. As a result, registrants in October are applying for visas that would become available the next October, which means it is always two fiscal years ahead of the current calendar year (as October of 2020 is fiscal year 2021, and visas would be available starting in fiscal year 2022).

How Does the Diversity Visa Process Work?

The diversity visa process involves four main stages:

  1. Registration
  2. Selection
  3. Application
  4. Interview and decision

Only the individuals who are able to make it through all the steps by the end of the fiscal year will be able to obtain an immigrant visa or green card.

Registration

The diversity visa registration process opens every year for qualified applicants to register. The registration process is fully online and completely free. Applicants for the 2022 Diversity Visa can register here: https://dvprogram.state.gov/

Selection

Diversity visa applicants are selected on about May 8th each year. This is when everyone who registered must go and check to see if their entry was drawn and to know whether they will be eligible to seek permanent resident status. If not, they can apply during the next registration period.

Application

If selected, diversity visa applicants will still need to submit an application. If outside the United States, they must apply for an immigrant visa. Inside the United States, most people will apply for adjustment of status unless they prefer to leave and attend an interview abroad. The exact application process varies, but involves payment of visa fees, completion of forms, submission of evidence, and an interview.

The application process is often time sensitive. Diversity visa numbers are not issued all at once and so people often must wait several months into the fiscal year before they can apply. This waiting period is determined by the visa bulletin. If a visa number becomes available late in the fiscal year, everything must be filed quickly in order to be able to complete the process before the end of the fiscal year.

Interview and Decision

Whether getting a visa abroad or adjusting status in the United States, diversity visa cases generally have in-person interviews. Most countries have US embassies or consulates where diversity visa applicants must go to have an interview. In the United States, the place of interview will depend on where the applicant lives and files for adjustment of status.

The purpose of the interview is to confirm the accuracy of the application and to confirm the applicant is eligible for permanent residency. There are many factors that can make someone ineligible for permanent residency or a visa, such as criminal history, misrepresentation, prior immigration problems in the US, deportations, and more.

Frequently Asked Questions About the Diversity Visa Lottery

When can I submit an application for the diversity visa lottery?

The current diversity visa registration period will open on Wednesday, October 7, 2020 at 12:00 noon, and conclude on Tuesday, November 10, 2020 at 12:00 noon. Visas that are becoming available now in the month of October, 2020, were selected from registrants in November, 2019. This registration period is for visas that will become available in October of 2021 (fiscal year 2022).

Do I get a green card if I am selected for the diversity visa?

The diversity visa process allows someone to get permanent residency, which is the same has having a green card. This is a permanent immigrant visa, not a temporary visa. Applicants abroad will go for a consular interview first, and have to pay for the green card once they have been approved. In the US, people are sometimes eligible to file for adjustment of status and become residents without leaving based on the diversity visa process.

Diversity visa selection is not the same as approval. In most years, many more people are selected than those who are able to complete the process and become permanent residents.

What countries are eligible for the diversity visa lottery?

Diversity visas are authorized for natives of certain countries. The term “native” is a legal one and it means the country where someone was born, not necessarily their country of residence. Some people can choose to be “charged” to a different country based on their spouse’s or parents’ countries of birth. The “chargeability” rules can get complicated and should be reviewed with a lawyer.

The list of countries eligible to file for the diversity visa is in the program instructions, linked below. Some individuals may be eligible for multiple countries and should consider the comparative benefits of filing under one country as opposed to another.

Can my spouse and I register separately for the diversity visa lottery?

Yes, while a single applicant can only file a single application, spouses can file their own individual applications. Because diversity visas allow for derivative spouses, this often gives spouses two chances at the diversity visa rather than one.

Resources for the Diversity Visa Lottery

Adjustment of Status with TPS and Matter of Z-R-Z-C

Temporary Protected Status (TPS) is a type of immigration status for citizens of certain countries which have suffered from war, natural disaster, or other significant problems. Although it’s temporary, some countries have been designated for decades. Many people look for ways to become permanent residents if possible.

Sometimes, people with TPS become eligible to apply for permanent residency. Typically this is the result of getting married to a US Citizen or having a US Citizen child turn 21, but there are sometimes other options. These cases can quickly become complicated by the passage of time, the fact that the TPS statute is unique, and because USCIS has been making significant changes especially during the Trump Administration.

Everyone applying for adjustment of status is recommended to talk with an immigration lawyer before filing, but this is especially important for people who have had TPS at some point.

Can TPS holders adjust status in the US?

Many people with TPS have successfully adjusted status to become permanent residents, but not everyone with TPS will qualify to do so. TPS was never intended to allow people to live in the US permanently and the law does not create a pathway for people to become permanent residents after a period of time. Instead, TPS holders must continuously renew their status and face the constant threat that any president could simply terminate TPS for their country, as the Trump administration has repeatedly tried to do.

While not everyone with TPS qualifies, there are some common situations in which people with TPS can adjust status:

  1. Marriage – sometimes people with TPS marry a US Citizen or resident of the US and are able to either apply for adjustment of status or consular process in their home country
  2. Children – once a US Citizen child turns 21, the child can petition for their parent and sometimes they can adjust status in the US
  3. Old Petitions – Another law, INA Sec. 245(i), allows some people with very old petitions filed for them to adjust status
  4. Other – There are many exceptions and less common options that allow people to become permanent residents, and TPS can help prevent unlawful presence and sometimes help people adjust status

Changes to TPS adjustment of status after Matter of Z-R-Z-C

In a significant departure from prior law, USCIS has decided that it will no longer consider people who travel with parole and TPS to have been paroled for purposes of adjusting status. USCIS announced this new rule when it issued and adopted Matter of Z-R-Z-C on August 20, 2020. This decision said that, despite many years of considering people who travel with parole and TPS to have been paroled, USCIS will no longer consider that parole to count for purposes of adjustment of status.

This change is extremely important. Previously, people with TPS could travel on parole and use that new entry to allow them to get residency through a family member, such as a US citizen spouse or child. Traveling with parole not only allowed those with TPS to make temporary trips abroad, but also it provided an entry for them to use to adjust status. Many people have become residents on the basis of a parole in this way.

USCIS is now saying that travel with parole after August 20, 2020, will not give people that same benefit. However, there are two important exceptions. USCIS has allowed people who already adjusted status to keep their residency and will even consider travel with parole prior to August 20, 2020, to still qualify for adjustment of status. USCIS stated that these groups of people had a significant reliance interest in the prior law.

Is this policy change legal? In my opinion it seems completely arbitrary, contrary to years of USCIS interpretation, and legally baseless. As such, I don’t expect the policy to withstand legal challenge, but those cases can take a long time. Because this is a change in policy rather than a change in law, a new president could undo this change quickly and easily.

Resources