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David H. Stoller
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David Stoller’s Answers

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  • For a co-sponsor , on question 11 on I-134, is it okay to check I do not intend to make specific contributions?

    Or it should be the - I intend to make specific contributions. Thank you

    David’s Answer

    Thanks for your inquiry. Seems like an awful lot of questions come up on the use of the Form I-134 on this forum and the fact is that I hardly ever use a Form I-134 in my practice. I will gladly provide you with the answers that you need, but I would caution you to make sure that you are using the right form when you submit the Form I-134.

    The Form I-134 is the older version of the Affidavit of Support, a form that is used to establish that the individual completing the application has the financial resources available to ensure that the beneficiary of the affidavit will not require the use of any type of means tested or non means tested government benefits while the beneficiary is here in the US. Prior to the changes in the law which cam about as a result of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Form I-134 was commonly used in conjunction with many applications for family based immigration to the US and was also commonly used in conjunction with some applications for non immigrant benefits either in the US or thru a US Consular Office abroad.

    The reason an affidavit of support is required is because all foreign nationals seeking to come to the US must establish that they are not likely to become a "public charge." And the easiest way to get around the "public charge" issue is for the applicant to have someone here in the US to provide specific evidence as to what financial resources would be available to the foreign national such that the foreign national will not have to either work in the US in violation of a non immigrant status which does not authorize work or will have the necessary financial support required while in the US.

    So the more specific you are in responding to the questions that are asked, the better off the beneficiary of the affidavit of support is going to be when whoever is reviewing the application is figuring out whether the beneficiary of the affidavit is likely to become a public charge. So if specific contributions like room, board, food, transportation and the like will be made, provide that information in the affidavit of support where it is requested.

    Like any other application for any immigration benefit, the applicant must establish that he is eligible for the benefit sought. When it comes to the issue of financial support all foreign nationals must establish that they will not need anything from the US government while here either on a temporary or permanent basis.

    Again I would recommend a consultation with a licensed and knowledgeable attorney who may be in a position to make sure that you are completing the correct forms for the right reasons. The Form I-134 has all but been replaced by the Form I-864 as a result of changes in the law made during the reforms enacted by the IIRIRA. You inquiry does not really provide a sufficient basis upon which I could figure out whether you are using the Form I-134 correctly and that is why I think a discussion with an attorney may be in order.

    Good luck.

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  • How do I obtain permanent residency for my new wife in the United States?.

    She came back with me on a tourist visa but we decided after a month here in the US to get married. I really do not want her visa to expire , which it will in February, and have her go back to China without me. I want her to stay with me for the...

    David’s Answer

    Thanks for your inquiry Larry. I think that there is a solution to your issue and my recommendation would be to find an attorney who can explain the options to you and your spouse so that you both can make an informed and knowledgeable decision about how best to proceed.

    I am guessing that you are a US citizen (USC), but your inquiry does not mention your immigration status. Assuming that you being a USC is correct, there is a process available whereby your spouse can submit a number of forms and application to US Citizenship and Immigration Services and begin a process whereby she would be accorded lawful permanent resident status as the spouse of a USC. The forms that you would be looking to complete are the following :

    form I-130, Petition for Alien Relative - this is the application that says that you are a USC and that your spouse is your wife and that you married for the right reasons. Moreover, this is an application for an immigrant visa which would permit your spouse to reside with you in the US

    Form I-485, Application to Register Permanent Residence or Adjust Status - this is the application that your spouse would file to indicate that she is a foreign national who has an immigrant visa petition available to her and that she would like to become a resident alien in the US. This application is most interested in whether there is anything in your spouse's background (i.e. criminal activity, prior immigration problems, immigration fraud) which may prevent her from being considered as a resident in the US.

    Form G-325 - this is a Biographical Information form which both you and your spouse would be required to submit. This form provides certain basic background information about the both of you.

    Form I-864, Affidavit of Support - this is an affidavit that you compete to establish that you (or other co sponsors if required) have the financial means necessary and available to ensure that your spouse will not need the resources of the federal, state or local governments to provide for her financial well being in the US.

    Form I-765, Application for Employment Authorization - to obtain a work permit while the application for adjustment of status is pending.

    Form I-131, Application for Travel Document - to obtain permission to depart the US and to return while the application for adjustment of status remains pending.

    All of the applications must be completed and submitted with supporting documentation (i.e. birth certificate of the applicant translated into English if need be, evidence of the termination of all prior relationships for both of you (again translated if needed), evidence of the petitioning spouse's immigration status in the US, copies of passport information, tax returns and evidence of current income). These applications are all processed through the National Benefits Center, a USCIS Service Center which is located in Missouri but whose "lockbox" filing location is in Chicago. Generally, a medical examination on Form I-693 must also be provided at the time of initial submission of the paperwork to USCIS.

    When the applications are received, filing receipts are issued and sent to you and your spouse. She will be contacted for an appointment to appear at a local Application Support Center where her "biometrics" will be captured (digital photo, digital signature and digital fingerprints). Eventually, an interview will be scheduled before an Immigration Services Officer at the nearest CIS Field Office. At this interview, the applications will be reviewed and the government will ask for you and your spouse to provide documentary evidence that your relationship is a bona fide marriage and not a relationship entered for the sole purpose of evading the immigration laws.

    Unfortunately, that is about all of the room I have. Process has more detail to understand and best way to work a case like this is with the help of a competent and experienced attorney. Good luck and find someone who is good to help.

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  • What should i do?

    My dadd just got his petition to become a permananet Resident. Approved.. Im ilegal minor whos been here since '96 how do we fix my situation now?

    David’s Answer

    Thanks for your inquiry. My recommendation would be that you go and speak with a licensed and competent attorney who can listen to your situation and provide guidance as to what you should do next. Unfortunately, you have not really provided much in the way of guidance as to what options may or may not be available to you.

    If you have been in the US since 1996, that means that you are at least 16 years old. That makes me think that you may be eligible for consideration of the Deferred Action initiative (commonly referred to as "DACA") which was announced by the Obama Administration on June 15, 2012. This would require you to have entered the US under the age of 16, to either have graduated from school with a high school diploma, have earned a GED or have engaged in qualified military service, to have not been involved in any major criminal misconduct and to have been physically present in the US on June 15, 2012 for at least five years.

    I think that the best foot forward in your case at this point would be consideration of DACA. While it may not offer anything more than a work permit at this time, I would suggest that it may provide an important step forward to you in resolving your status in the future. Keep in mind that the DACA program is but a temporary fix to a larger problem, but it sure beats the heck of out nothing.

    On the question of whether you may be eligible for some type of permanent status that really depends on how your father obtained his status and you did not mention that fact in your inquiry. Sometimes, unmarried minor children can obtain a derivative benefit from an immigrant visa petition filed on behalf of a parent. And other times this is not possible. The key to whether there is a derivative benefit available to you is the relationship between your father and the individual who filed the visa petition on his behalf and the immigration status of the individual who filed that petition.

    Even if you are eligible for a derivative benefit from the visa petition which was filed on your father's behalf, you may still not be qualified for consideration of an application for adjustment of status in the US. Again as a general rule, a foreign national must be maintaining a lawful non-immigrant status at the time he seeks to submit an application for adjustment of status based on an approved and immediately available immigrant visa petition. Seems to me that you may never have maintained lawful non-immigrant visa status in the US and this makes me wonder if you would be eligible for consideration of adjustment of status here in the US.

    If you are under 18 then you may be in a position to consider returning abroad to obtain the approved and immediately available immigrant visa petition. In other words, leaving the US and seeking to process an approved immigrant visa petition through a US Consular Officer abroad may be a basis upon which you can establish eligibility for the issuance of an immigrant visa through consular processing.

    What I have hared above are many possibilities and whether these apply to you or not is an answer that can only be determined after someone has had the time to review your case and to ask you and perhaps your father important questions about your eligibility for some of these benefits. The most important thing you can do is to take the time to find someone who knows what he/she is doing and who can explain to you why something can be done or why something cannot be done.

    I can certainly understand that you have been in the US for a really long time and you would like nothing more than to see some light at the end of the tunnel. There are decent attorneys out there who will not rob you blind, but it is up to you to find one. Don't listen to anyone who tells you what you want to hear, listen to someone who you can tell knows what he or she is talking about. Don't believe everything you hear and if needed, get a second opinion. Good luck.

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  • Does Affidavit of Support (i-134) for F-2 dependents is required when filing i-485?

    My EB1-EA i-140 was approved. I am an F-1 student and primary applicant and my wife (F-2) is my derivative.When filing i-485 with me, would she require to include the affidavit of support, i-134 form in her i-485 application? Thanks, in advanc...

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. The answer to your question is that it would not appear that an affidavit of support is required to be filed with your case. Generally, the I-134 is no longer used in conjunction with applications for adjustment of status or for the consular processing of approved immigrant visa petitions. Rather, if an Affidavit of Support is required, it is the Form I-864 which is filed.

    The I-864 is most often used in conjunction with immigrant visa petitions filed based on immigrant visa petitions filed by one family member on behalf of another. Employment based immigration is a different situation. With employment based immigration, it is the job which is used as the basis upon which to apply for the immigrant visa which provides the necessary evidence that the applicant is not likely to "become a public charge."

    Keep in mind that when any foreign national is making an application for resident status, the applicant must establish that he/she will not need the resources of the US government's welfare systems (or those of state or local government) for financial support. If the whole basis of the foreign national's eligibility to become a resident is an offer of employment, then the government will generally presume that there is no reason to believe that the applicant will need the resources of the government to provide for basic needs.

    With that said, there are certain specific situations where an Affidavit of Support must be filed in conjunction with an employment based immigrant visa petition. This generally involves a situation where there is a familial relationship between the owner or owners of the company that is sponsoring a foreign national and the foreign national who is the beneficiary of the immigrant visa petition. If this is not the situation in your case (and it does not appear that it is), then neither the Form I-864 nor the Form I-134 will be required.

    In your case, an Affidavit of Support does not appear to be required as you have an approved "alien of extraordinary ability" I-140 and your spouse would not need an affidavit of support as the derivative beneficiary of your approved immigrant visa petition even though it may be that this is a "self sponsored" application.

    If you have any doubts, I would suggest that a consultation with a knowledgeable attorney may assist you in better understanding the issues presented and any paperwork which is needed. Should be relatively straight forward. Good luck.

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  • I just got married with an American citizen,I entered in US legally about 10 years ago

    Can i apply for a green card ?I have no criminal records never got arrested,pay all my taxes since 2004.(my marriage is bona fide)thx

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. Sounds to me like the answer to your question is that you would appear qualified to apply. This is one of those circumstances where the law makes little sense, but it is what we have. Let me explain.

    The way that the law is written, most individuals applying for resident status here in the US must establish that the individual is validly maintaining non immigrant status (or some other qualifying status) at the time that the application for adjustment of status is made on the Form I-485. However there are certain exceptions to this rule. One of those relates to "immediate relatives" which are defined as unmarried children (under 21), parents and spouses of US citizens (USC's).

    If you are an immediate relative then the only requirement for you to establish is that you lawfully entered the US (or were paroled into the US). You would appear to be an immediate relative as the spouse of a USC and it appears that you entered the US lawfully, so you seem good to go if you can otherwise establish eligibility for adjustment of status (i.e. no issues with any ground of inadmissibility and you can satisfy the Affidavit of Support requirement).

    Where the law makes little sense is that if you did not enter the country legally (i.e. entered without inspection) then you are not qualified. At various points in the past, we have had the availability of §245(i) of the law which is a provision which would permit individuals who have entered the US without inspection to apply for adjustment of status. This law IS NOT currently in effect and was last active for petitions filed on or before April 30, 2001. In your case, however, §245(i) is not needed for you to qualify.

    While I see little difference between folks who have come to the US and have remained in violation of their status as opposed to folks who came to the US initially by violating the immigration law and entering without inspection, the Immigration and Nationality Act draws a distinction between these two classes of individuals and the law is as the law is.

    So what I would suggest to you and to your spouse is to consult with a qualified attorney and get the lay of the land. I tell clients that I do not think that the application process associated with what it is that you need to do is all that complicated, I do believe that hiring an attorney can make it go correctly the first time. It is confusing, the instructions make absolutely no sense and the assistance of an attorney is probably a really good idea.

    Looks to me like this is a relatively straight forward application, just make sure that you have a good grasp of what is required, the forms that must be filed and the fees which are associated with the applications process. Good luck.

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  • Types of Relief & Eligibility

    If i've filed for deferred action which is pending & was done as a last attempt, i am 33 in a few weeks, not fully meeting criteria for DACA, what other relief could there possibly be that i qualify for? I'm an overstay since 2010, in unlawful pre...

    David’s Answer

    Thanks for your inquiry. I think that the question that need to be asked here is why in the good lord's name did you apply for an immigration benefit for which you are clearly not qualified. Listen, I get it that you may want to remain here in the US, but doing it in a way that may likely result in you being sent to see an immigration judge (IJ) is a really thoughtless way to do so.

    The guidance which the government has issued with regards to whether a denied DACA application may result in the issuance of a Notice to Appear sending you to see an IJ. And if I had to guess, an absolutely meritless application for DACA is a really good prospect for an Immigration Services Officer looking at your application and figuring that you really wanted to be sent to the Immigration Court to see an IJ.

    Do yourself a tremendous favor and really think about what you are doing here. You do not have status, you do not appear to have the prospect of getting it and you are sending applications to the government that may likely result in you having to spend money on an attorney to help you through the process of being removed and deported from the US.

    If after thinking about that you still have doubts, find a good attorney and spend some money to consult with them about your prospects for remaining in the US. And if you do not think that that conversation is worth the expense, please do not do anything else that is likely to give you the result that you appear most to want to avoid. Good luck.

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  • Is a permanent resident at risk of being deported if he or she registered to vote without this knowledge?

    Hi, I'm a permanent resident in the US. 3 weeks ago in community college, I got approached by a woman who was looking for people to register to vote. I asked her if green card holders are eligible to register. And she said yes. So I registered and...

    David’s Answer

    Thanks for your inquiry. Here is what I would suggest. I would discuss your case with a criminal attorney first and then follow advice on how to retract the registration. It is generally a state crime to register to vote when you are not qualified to do so. And it is a deportable offense to claim to be a US citizen when you are not and to register to vote. So while I can certainly understand that you are looking for some advice and not to be scared by some attorney answering your inquiry from 3000 miles away, I would highly advise you finding both a criminal attorney and an immigration attorney to walk yourself back from this potentially problematic issue.

    I would also take the time to find out the name of the organization that was employing the individual who registered you because that person is also responsible for her.his own problems as telling someone that a non-citizen is eligible to vote likely raises the prospect of criminal activity by that individual as well.

    Citizenship and Immigration Services is absolutely combing its records against voting records. I recently had a case which was handled at the California Service Center where a client was applying for residency based on her being the parent of a US citizen. Turns out the application was denied because my client had registered to vote. Different circumstances from that presented in your case, but an indication nonetheless of the far reaches that CIS is going to look at available public records as it adjudicates applications for immigration benefits.

    This is a serious problem and you really need to speak to someone who take back what has been done. I do not think that anyone is going to come looking for you and you will have sufficient time to address the issue before it gets out of hand. But fix it quickly. Do not let it sit because doing so will create more of a problem. Stand up, walk it back and fix the problem. It is probably going to cost you some money to do so and I would spend it with a smile. Your future in the US may depend on it. At a minimum, consult with someone with knowledge of local law who can provide you the guidance that I would suggest you very much need. Good luck.

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  • H1B visa stamping in canada.

    I was on student status in US. After my graduation, I started working for the company. I have been working for the same company for last 2 years and they have filed my H1B visa. I am not a Canadian citizen or permanent resident. Can I go there for...

    David’s Answer

    Thanks for your inquiry. The answer is maybe, but it is not an easy thing to do. The great part about Canada is that it is close, that English is spoken and there are many benefits available through ports of entry at the US/Canadian border which are not available at other ports of entry. The problem is that the benefits which are available at the Canadian ports of entry are generally only available to Canadian nationals and sometimes to Canadian landed immigrants (permanent residents).

    So your case would be treated like any other request for third country processing of a non immigrant petition. And this can be quite difficult to attain in these post September 11th days. But like anything else, the only way to get anything is to ask. Some US Consular Offices (USCON) are there to help third country nationals with work like the work that you are looking to have completed. Other USCON's are not so available to help with the work that you need to have done.

    So when you come to my office, I always explain that I can make no promise that I am going to be able to get the result that you want. And unfortunately, the USCON's are not always so quick to respond to requests and other correspondence. So I generally just tell clients that the easiest way to get the visa stamp like they are requesting is to plan a trip back to their native country.

    I am always up for the challenge, but no one can ever guarantee third country national processing acceptance at the chosen USCON. So the choice is always up to the client as to how to proceed, but I always want to make sure that every client knows what he is walking into before paying me to walk into it with them. Good luck and make sure you understand the difficulties involved before making a decision about spending your resources on someone promising you something.

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  • How does one get a plane ticket once voluntary departure has been granted?

    My friend is in ICE detention and I am trying to help him figure out what he would need to do to get a plane ticket once he gets voluntary departure (which he think he will get at his next hearing). What is the process for buying a ticket and wha...

    David’s Answer

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    Thanks for your inquiry. The answer to this question really depends on the requirements of the Deportation Officer who is handling the case. My advice would be to have your friend or someone else contact the officer directly and ask him/her how to do this in such a way so as to make sure that money is not being spent on a ticket that is not going to accomplish to goal for which it was intended.

    Voluntary departure for a foreign national who is in detention is always one of those concerns that I have difficulty understanding. Many times individuals who are detained have this idea that purchasing a ticket will make their departure from the US quicker and will make it easier for them to return to the US at a later time. Neither is necessarily true so make sure that your friend knows what he is getting into before having someone buy a super expensive ticket on his behalf.

    Unfortunately, your inquiry does not provide sufficient information to determine whether your friend will or will not be subject to an "unlawful presence" bar upon his departure from the US. Unlawful presence will be an issue if your friend has been in the US in excess of 180 days after having overstayed a period of authorized stay or otherwise being found to be in violation of his status. Unlawful presence will also accrue if your friend had arrived in the US without inspection.

    Now in some cases, leaving the US under an order of voluntary departure can assist a foreign national in avoiding an "unlawful presence" bar but the applicability of this "exception" is very limited. And rather than explain it, I would suggest that a consultation with a knowledgeable attorney may serve to explain the matter much better than me attempting to do it through this forum.

    Another concern mentioned above is the cost of a ticket. Nowadays, the Deportation Officers have become much better at permitting folks who want to leave under an order of voluntary departure to purchase their own ticket on a particular flight rather than requiring the purchase of an "open ended" ticket. Purchasing a specific flight is much easier and much cheaper than purchasing a ticket on a particular airline which permit the ticket holder to make a flight at any time - this is what I refer to as an "open ended" ticket.

    What I generally do in these cases is open a dialogue with the Deportation Officer so that we both understand what each other would like to accomplish and so that we are both working together towards the same goal. I never want to assume that by purchasing a ticket that the Deportation Officer is going to use it to send my client out of the US as I planned. Rather the way this is going to work is that we need to follow the instructions which Immigration and Customs Enforcement (ICE) provides to us on how to do what they want on their terms.

    Yes it can be an incredible pain in the hind side to have to follow the instructions that ICE provides, but it is all intended on resolving matters as quickly as possible. Your friend should have some type of access to his Deportation Officer either at the detention facility or through an inquiry procedure. Likewise, the officers sometimes list their phone numbers and email addresses for the purpose of resolving concerns like this.

    There is no correct answer for this inquiry. Instead, the way to handle this is to contact the facility and understand the procedures which the local ICE Field Office has in place to handle issues like this. Each Field Office handles matters differently and the best way to get to where your friend wants to be is to figure out what the local ICE office and the assigned Deportation Officer want to see as a resolution to this case. Asking the assigned Immigration Officer during the hearing may also provide some contact information and guidance and I would certainly advise asking questions before taking action. An attorney would really help as this is the kind of work we do. Good luck.

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  • Texas SC is approving I-140 at weird pace. 2 to 6 months.Irrespective of whats written on the site, any idea on their pace now?

    This is for EB1C category

    David’s Answer

    • Selected as best answer

    Thanks for your inquiry. Sounds like you may be spending too much time trying to read too much into the processing reports released by the Service Centers as to their pace of adjudicating applications.

    Each case is its separate entity. Truth is that you can send the same application to the same service center and it will be assigned to two different officers. Those different officers may work at different paces. Those officers may concentrate on different elements of the application. One may pay attention to a concern that the other one may not have. Although the process should be one with some uniformity, different officers are going to look at the same application in a different way.

    Truth is that different attorneys have different ways of presenting the same applications. We can all read the Immigration and Nationality Act, the implementing regulations and applicable administrative guidance and come up with different ways to present the same case. And just as different attorneys may have different ways of presenting the same evidence, so too will officers have different ways of looking at the same application.

    The processing reports are best described as a point around which there is a circle encompassing a radius including all of the applications that are being worked quicker than the average and slower than the average. The date that the processing report is describing (or the length of time that the report is describing) does not mean that all applications of that type are always being adjudicated consistently with the dates reported in the processing report.

    Also important to consider is that changing times can call for changing priorities. What I mean by this is that Officer A and Officer B may be assigned to handle you I-140. Along comes some issue at the Service Center where the Director is interested in making sure that applications other than I-140's are being worked with more of an emphasis than was previously provided. So Officer A may be taken off the I-140 and moved to adjudicate something else. During the time that Officer A is working something else, this does not mean that someone else is stepping up to work Officer A's cases.

    Now Officer B may be on the I-140 product line the entire time. So the same application that was filed one the same day may be worked by Officer B quicker than it is being worked by Officer A for lots of reasons like those discussed above and that is why the processing reports are a good general guidance but not specific enough to ensure that the report can provide any guidance as to exactly when an application will be adjudicated.

    The way I use the processing reports is to provide a general guideline as to how long a particular application will take to process. A 6 month processing time means there are applications being adjudicated in 3 months and there are others being adjudicated in 9 months. Which is which? Hell if I know. And if this is what I do every day and I cannot figure it out, I am unsure how anyone else can figure it out.

    So use the processing reports as the forest they are intended to be. Concentrating on the forest too much makes one get lost in the trees and when one is lost in the trees one gets awful impatient when anything does not go as planned or as expected. if your applications reported as being processed in 6 months and it is 183 days, I would not run to the National Customer Service Center and make an inquiry about the status of the case. If it is reporting 180 days and we are getting at 270 days without hearing something I may start to worry. And when my processing time is now twice that than is being reported I am going to be concerned.

    Applications take time to consider and to adjudicate. And in these days of almost everything requiring a request for evidence that ignores everything that has already been provided, applications never end up being considered as we initially planned. CIS will get there, Relax. Good luck.

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